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816 | Prohibition of discrimination (Article 14 of the Convention and Article 1 of Protocol No. 12 to the Convention) | THE LAW ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION READ IN CONJUNCTION WITH aRTICLE 8 OF THE CONVENTION 44. The applicants complained of a violation of Article 14 taken in conjunction with Article 8 of the Convention, on the grounds that the requirement of a private home ( domicile ) in Switzerland was directly linked to the nature of the first applicant ’ s disability. They submitted that the decisive criterion for the first applicant to be eligible for the benefits in issue, that is to say having a private home in Switzerland, depended, in a discriminatory manner, on the type of disability – congenital – suffered by the applicant, since disabled persons who had been able to pay contributions were able to export their pensions. Those two provisions provided : Article 14 “ The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. Article 8 1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. 2. Freedom to manifest one ’ s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others. ” A. Admissibility 45. The Government invited the Court to declare inadmissible the complaint under Article 14 read in conjunction with Article 8, as their main submission, as being incompatible ratione materiae with the Convention pursuant to Article 35 § 3 ( a) of the Convention, and in the alternative, as being manifestly ill-founded. 46. The applicants considered the complaint admissible. 47. The Court holds that the Government ’ s argument that Article 8 is not applicable to the present case, which would render the complaint under Article 14 inadmissible ratione materiae, goes to the merits of the case. It further notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and that it is not inadmissible on any other grounds. It should therefore be declared admissible. B. Merits 1. Applicability of Article 14 read in conjunction with Article 8 of the Convention (a) The parties ’ submissions (i) The Government 48. According to the Government, Article 8 of the Convention does not give rise to direct entitlement to social insurance benefits outside Switzerland. 49. The Government acknowledged that the Court had not ruled out the possibility of certain social benefits falling within the scope of Article 8 of the Convention. The Government cited, in particular Petrovic v. Austria (27 March 1998, §§ 26 et seq ., Reports of Judgments and Decisions 1998 ‑ II), concerning a parental leave allowance, and Moskal v. Poland (no. 10373/05, § 93, 15 September 2009), concerning an early retirement pension for the parents of a disabled child, and submitted that the benefits at issue in the present case were not designed to enable one of the parents to remain at home to look after children or to promote family life: they were intended to allow adult beneficiaries to lead an autonomous, independent life. 50. Referring to Stec and Others v. the United Kingdom [GC], nos. 65731/01 and 65900/01, § 53, ECHR 2006 ‑ VI, the Government emphasised that the Convention did not restrict the Contracting States ’ freedom to decide whether or not to put in place a given social security scheme. Furthermore, even if such a scheme existed, the Government submitted that the right to a social benefit was a pecuniary right for the purposes of Article 1 of Protocol No. 1 to the Convention, which was not binding on Switzerland since it had not ratified it. 51. The Government further emphasised that the recruitment of a home-care nurse was not impossible given the current incomes of the second applicant and her husband, who had, moreover, defrayed the cost of medical provision thus far, having regard to the cost of living in Brazil. 52. The Government took the view that since the facts of the case did not fall within the scope of any Convention provision, Article 14 of the Convention was also applicable to the present case. ( ii ) The applicants 53. The applicants submitted that Article 8 of the Convention was applicable to the present case because the measures taken by the State were jeopardising the first applicant ’ s life and health, both applicants ’ autonomy and private life, and also their overall family unity. 54. The applicants denied invoking any right to live abroad; the second applicant, whom the first applicant needed because her father was unable to look after her, had followed her husband to Brazil out of financial necessity, in order to manage a hotel, which they were now attempting, without much success, to sell before returning to Switzerland. 55. The applicants alleged in particular that they were facing serious difficulties in organising their daily private lives, given that the first applicant could no longer benefit from the help of a trained assistant and that healthcare had to be provided by the second applicant – an elderly woman – whose ability to manage her hotel was being restricted. The applicants, referring to Glor v. Switzerland, no. 13444/04, § 54, ECHR 2009, also argued that a decision with mainly pecuniary consequences stemming from a disability fell within the ambit of Article 8 of the Convention. 56. The applicants, citing the judgments delivers in Petrovic v. Austria, cited above, §§ 27-29, and Moskal v. Poland, cited above, § 93, also submitted that family life was relevant because of the relationship of dependency between the first applicant, who had no capacity of discernment, and the second applicant, who held parental authority. The applicants added that the affective relationship between the first applicant and her stepfather was real and should be protected. (b) The Court ’ s assessment 57. As regards protection against discrimination, it should be remembered that Article 14 only complements the other substantive provisions of the Convention and the Protocols. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions ( see, among many other authorities, Sahin v. Germany [GC], no. 30943/96, § 85, ECHR 2003-VIII). The application of Article 14 does not presuppose a breach of those provisions. It is necessary and sufficient that the facts at issue fall within the ambit of at least one of the provisions of the Convention or its Protocols (see Vallianatos and Others v. Greece [GC], nos. 29381/09 and 32684/09, § 72, ECHR 2013 (extracts)). 58. The Court also reiterates that the Convention does not guarantee, as such, the right to an old-age pension or any social benefit of a particular amount ( see Yuri Romanov v. Russia, no. 69341/01, § 45, 25 October 2005). Moreover, the Convention does not confer on an individual a right to enjoy any given standard of living ( see Vassilenkov v. Ukraine, no. 19872/02, § 18, 3 May 2005). 59. As regards the “ family life” aspect of Article 8, the Court observes from the outset that that concept does not include only social, moral or cultural relations; it also comprises interests of a material kind ( see Merger and Cros v. France, no. 68864/01, § 46, 22 December 2004). 60. As regards the “ private life ” aspect of Article 8, the Court has already had occasion to observe that it is a broad term which is not susceptible to exhaustive definition. It can sometimes cover the physical and social integrity of the person ( see Glor v. Switzerland, no. 13444/04, § 52, ECHR 2009; Mikulić v. Croatia, no. 53176/99, § 53, ECHR 2002-I; and Otgon v. the Republic of Moldova, no. 22743/07, 25 October 2016). 61. The “private life” concept also covers the right to personal development and to establish and develop relationships with other human beings and the outside world ( see, for example, Evans v. the United Kingdom [GC], no. 6339/05, § 71, ECHR 2007 ‑ I). Finally, the Court has held that the notion of personal autonomy is an important principle underlying the interpretation of the guarantees of Article 8 ( see Pretty v. the United Kingdom, no. 2346/02, § 61, ECHR 2002 ‑ III, and Haas v. Switzerland, no. 31322/07, § 51, ECHR 2011). 62. In a recent case against Switzerland, the Court considered Article 8 applicable under its “private” aspect, in so far as that provision guarantees the right to personal development and personal autonomy. To the extent that the method of calculating the degree of disability used in the case placed individuals wishing to work part-time at a disadvantage compared with those in full-time paid work and those who did not work at all, the Court could not rule out that this method of calculating disability would limit persons falling into the first of these categories in their choice as to how to divide their private life between work, household tasks and childcare ( see Di Trizio v. Switzerland, no. 7186/09, § 64, 2 February 2016 ). 63. As regards the present case, the Court acknowledges that Article 8 or the Convention clearly cannot be interpreted as imposing a positive obligation on States to continue to pay social benefits regardless of ordinary residence. On the other hand, the Court also reiterates that the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective (see, among many other authorities, Kimlya and Others v. Russia, nos. 76836/01 and 32782/03, § 86, ECHR 2009, and Artico v. Italy, 13 May 1980, § 33, Series A no. 37). In other words, therefore, regard must be had to the specific features of the individual case, particularly the social and family situations in which the applicants find themselves. 64. The applicants relied on respect for their private life, family unity and their autonomy. They argued that the first applicant needed the support of the second applicant, who is living in Brazil with her husband for professional reasons. Furthermore, the first applicant has been under the parental authority of the second applicant since 2009. 65. The Court reiterates from the outset that although both applicants are adults, the first one has been deaf since birth, has difficulty speaking her mother tongue and has no capacity of discernment on account of a severe disability which has required comprehensive therapeutic provision throughout her life ( see paragraph 8 above ). The requisite care is, precisely, provided by the second applicant, who is not only her mother but also her guardian ( see paragraph 7 above ). Accordingly, the Court considers that in this situation involves “additional factors of dependence, other than normal emotional ties”, which exceptionally bring into play the guarantees that derive from the “family life” aspect of Article 8 between adults ( see, mutatis mutandis, Emonet and Others v. Switzerland, no. 39051/03, § 80, 13 December 2007, and Kwakye-Nti and Dufie v. the Netherlands (dec.), no. 31519/96, 7 November 2000). 66. The Court considers that the refusal to pay the pension abroad was liable to affect the organisation of the applicants ’ family life ( see, to that effect, Di Trizio, cited above, § 62). Indeed, they face a situation which requires taking difficult decisions, all of which are likely to impact on their family life: either they decide to enjoy their family life in Brazil, where the second applicant is married, with the consequence of losing entitlement to the benefits; or they decide to retain their entitlement to the pension; in the latter hypothesis, the second applicant must choose between separation from her daughter, over whom she holds parental authority but who must of necessity live in Switzerland in order to receive the benefits, and separation from her husband, who cannot, for professional reasons, be expected to leave Brazil. 67. Having regard to the foregoing considerations, the applicants ’ complaint falls within the ambit of Article 8. It follows that Article 14 of the Convention, read in conjunction with Article 8, is applicable in the present case. 2. Whether there has been a violation of Article 14 read in conjunction with Article 8 (a) The parties ’ submissions (i) The applicants 68. Citing the judgment delivered in the case of Glor, the applicants alleged a violation of Article 14 of the Convention in relation to Article 8 : they argue that the infringement of their private and family life is discriminatory as compared with other disabled persons because the benefits in issue would not have been withdrawn if the first applicant, disabled from birth, had become disabled as the result of an accident sustained as an adult, after having contributed to the social insurance funds, such that in the latter case the applicants would not have been forced to remain in Switzerland on the basis of a “fiscal” criterion. In other words, the question was whether or not the disabled person in question had contributed to the funding of the social benefits. Persons unfortunate enough to have been born with a disability were obliged to retain their habitual residence in Switzerland. 69. The applicants submitted that the ordinary pension was an insurance benefit, whereas the extraordinary pension granted to persons disabled from birth or to persons having become disabled before their 23 rd birthday was considered as a form of social aid funded exclusively by the Swiss Confederation rather than from insured persons ’ contributions. They noted that it had been a political decision based on purely financial considerations which had led the Swiss legislature to determine that only the ordinary pension would be exportable, in the face of opposition from organisations defending the rights of persons with disabilities. In particular, at the time of the 5 th revision of the LAI, whereas an initial draft had included the possibility of exporting the extraordinary pension, the final draft had dropped all mention of it. 70. The applicants also alleged that the organisations protecting persons with disabilities had constantly emphasised that authorisation to export extraordinary pensions would relieve the financial burden on the public authorities. In view of the low level and high costs of treatment in Switzerland, beneficiaries of the pension usually had to have recourse to supplementary benefits financed by the ( Federal and / or Cantonal ) authorities. They added that authorising such exportation would help alleviate public finances. 71. According to the first applicant, referring in particular to Covenant I ( see paragraph 28 above ), the European consensus was that special attention should be paid to disabled persons as a vulnerable category in order to promote their integration. They added that the recent social and legal progress in the Council of Europe, in the Court ’ s case-law and in the international texts towards enhanced protection of the dignity and autonomy of persons with disabilities, of their right to maintain control over their own lives and of their right to live in the community rather than in an institution, was beyond dispute. 72. The applicants considered that the Swiss system, in principle and per se, created a discriminatory situation to the detriment of the freedom of movement, autonomy and the family life of persons disabled and powerless since birth, and, by extension, of their families, where they must leave Switzerland for family, economic and/ or administrative reasons. That amounted to a disproportionate interference with their family life, because a separation, an emotional abandonment would be required to enable the disabled person to retain the same quality of life, whereas that would not have been the situation if payment of the pensions had continued, as in the case of a person who had become disabled as a result of an accident. 73. The applicants submitted that the decision, which had been based on financial reasons, not to allow exportation of the extraordinary pension created a difference of treatment devoid of any objective and reasonable justification for the purposes of Article 14 of the Convention, between persons disabled from birth and persons having become disabled after their 23 rd birthday. 74. The applicants also alleged that their family ties and their social milieu were in Brazil and not in Switzerland. They further stated that the withdrawal of the pension and allowance was having a serious effect on their everyday lives. In the absence of the requisite funds, they could no longer call on the services of an outside assistant capable of providing for the first applicant. They explained that the cash benefits received by the first applicant had covered the costs of recruiting a homecare nurse and that without such income it was no longer possible to recruit such a nurse. 75. Moreover, the applicants affirmed that they had had enormous difficulties in finding a buyer for their hotel in Brazil. They argued that until the second applicant and her husband found someone to take over the hotel, they would find it very risky and difficult to leave Brazil. They further complained that a forced departure would have extremely serious, nay grievous effects on both applicants in psychological terms. Furthermore, the first applicant would lose her independence and autonomy, being no longer able to live in a normal environment. 76. Having regard to the foregoing considerations, the applicants considered that there had been a violation of Article 14 read in conjunction with Article 8 of the Convention. ( ii ) The Government 77. As regards Article 14 of the Convention read in conjunction with Article 8, the Government, noting the universal consensus on the necessity of protecting disabled persons against any form of discrimination, nevertheless considered, relying on the judgments delivered in the cases of Glor, cited above, and Montoya v. France ( no. 62170/10, 23 January 2014), that the situation of a beneficiary of an ordinary invalidity pension differed from that of the first applicant in that only in the former case had the person in question contributed to the Swiss social insurance scheme. However, should the Court decide the opposite, namely that the first applicant ’ s situation was comparable to that of a person having contributed to the insurance scheme, and even assume that the two types of pension (contributory/non-contributory) were not sufficiently different to justify different types of regulations, the Government considered that the different conditions applicable to the two types of pension were justified on grounds inherent in insurance law. 78. As regards the objective justification of the unequal treatment, the Government considered that the aim of the distinction was to guarantee that disabled persons who did not satisfy the conditions for obtaining an ordinary pension could benefit from the solidarity of others and have the requisite means of subsistence to live in Switzerland. The preservation of that solidarity mechanism depended on the will and the trust of other people, which required it to be subject to certain limits. Thus the Government considered that the impugned legislation had pursued a legitimate aim, that is, the country ’ s economic well-being. They explained that the social security system was an extremely complex State construction which comprised a balanced and coordinated set of measures to protect the population against the vicissitudes of life. That system operated at considerable cost, which was defrayed by people living in Switzerland. Any change to the rules on the exportation of extraordinary pensions and disability allowances would upset the financial balance of disability insurance. 79. The Government further emphasised that the Swiss social insurance system was based on the “ insurance principle ” and broadly underpinned by the equivalence between the payment of contributions and the right to benefits. Consequently, the Swiss social insurance system could not be expected to provide benefits outside its territory to persons who had not – albeit for reasons beyond their control – directly contributed to the funding of those benefits. 80. The Government pointed out that the extraordinary pension constituted an alternative allowance for persons who did not meet the insurance conditions for entitlement to an ordinary invalidity pension, which meant that it was an instrument for broadening welfare protection. Without such an instrument, persons who had been disabled since birth or since childhood and who therefore did not satisfy the contribution condition would be dependent on social assistance. 81. The Government also explained that not only were the conditions for entitlement to benefits different in the case of extraordinary pensions, but the benefits were also different. The amount of ordinary invalidity pensions granted depended, inter alia, on the insured person ’ s annual income. On the other hand, extraordinary invalidity pensions were, with some reservations, equal to the minimum amount of the corresponding full ordinary pensions, and they did not depend on any loss of earnings or average annual income, but corresponded to a lump sum, that is to say the minimum pension. Similarly, the amount of the disability allowance also did not depend on any loss of income. 82. The Government added that the contributory or non- contributory nature of the pensions was also reflected in the funding of the benefits. Ordinary pensions were funded from social and public contributions. Conversely, extraordinary pensions and the disability allowance were financed exclusively by the Confederation. 83. As regards reasonable justification for the unequal treatment, the Government submitted that Switzerland had a broad margin of appreciation in economic and social matters. They considered that Switzerland had not overstepped that margin, and had, on the contrary, complied with the internationally recognised principles in the sphere of coordination of social security schemes, to the effect that non- contributory benefits were not exported. The Government took the view that there was a consensus in the European countries that non- contributory benefits were not exportable and were therefore paid on the condition of residence in the paying country. 84. In that connection, the Government noted that in the framework of the system for coordinating social security schemes implemented in the European Union and in relations between the EU and Switzerland (Regulation [EU] no. 883/2004, concerning the Agreement between the Swiss Confederation and the European Community and its Member States on the movement of persons [ALCP]), extraordinary invalidity pensions for disabled persons who had not been subject, before their unfitness of work, to Swiss legislation on the basis of an activity as an employed or self-employed person constituted “special non-contributory cash benefits” (Article 70 § 2 of the Regulation) (see paragraph 41 above). Furthermore, extraordinary disability-insurance pensions had been included on the list of that type of benefit (Annex X to Regulation no. 883/224/EC). Consequently, they were granted exclusively in the Member State ( Switzerland ) in which the person in question lived and in accordance with its legislation ( Article 70 § 2 of the Regulation ). The Government recalled, in that regard, that in judgment ATF 141 V 530 of 11 September 2015 the Federal had confirmed that extraordinary invalidity pensions met all the requisite criteria to qualify as special benefits within the meaning of Article 70 § 2 of Regulation no. 883/2004. 85. In the light of the foregoing considerations, the Government submitted that the Swiss legislation making the grant of non-contributory benefits subject to having a private home and ordinary residence in Switzerland was not unreasonable, to the extent that it corresponded to current legislation in the other European countries and to the principles in force in international social security law, including the territoriality principle. It followed that the arrangements for paying the benefits in question, as recognised and accept by the States Parties to the ALCP in the light of the specific features of special non- contributory cash benefits, could not be deemed contrary to the Convention. The Government stated that the same reasoning also applied to the disability allowance (Article 42 ( 1 ) LAI), as the States Parties to the ALCP had recognised the close link with Switzerland on account of the non-contributory nature of that benefit ( see ATF 142 V 2, point 6, and paragraph 42 above ). 86. The Government also submitted that the obligation on Switzerland to adopt social policy measures in order to comply with the international instruments to which it was a Party was of a territorial nature. In other words, Switzerland could not be expected to ensure that social welfare benefits which were funded exclusively from taxation were also paid abroad. The added that the benefits in issue were closely linked to the socio-economic context of Switzerland because they corresponded to the minimum pension payable in that country. Consequently, it was reasonable to restrict them to the Swiss territory. 87. Balancing the competing interests, the Government argued that the first applicant still had the possibility of returning to Switzerland to benefit from the benefits in question. The loss of the benefits had been the consequence of the applicants ’ departure from Switzerland, whereas the legal situation had been clearly that the first applicant would lose her entitlement to an extraordinary invalidity pension and a disability allowance. The Government added that Brazil had ratified the International Covenant on Economic, Social and Cultural Rights and was therefore required to respect the rights set out therein. 88. Having regard to the foregoing considerations, the Government considered that there had been no violation of Article 14 read in conjunction with Article 8 of the Convention. (b) The Court ’ s assessment (i) The applicable principles 89. The Court reiterated that Article 14 of the Convention affords protection against discrimination in the enjoyment of the rights and freedoms safeguarded by the other substantive provisions of the Convention. However, not every difference in treatment will amount to a violation of this Article. Instead, it must be established that other persons in an analogous or relevantly similar situation enjoy preferential treatment, and that this distinction is discriminatory ( see, for example, National & Provincial Building Society, Leeds Permanent Building Society and Yorkshire Building Society v. the United Kingdom, 23 October 1997, § 88, Reports 1997-VII, and Zarb Adami v. Malta, no. 17209/02, § 71, ECHR 2006 ‑ VIII). 90. According to the Court ’ s case-law, a difference of treatment is discriminatory within the meaning of Article 14 if it has no objective and reasonable justification. The existence of such a justification must be assessed in relation to the aim of the impugned measure, having regard to the principles which normally prevail in democratic societies. A difference of treatment in the exercise of a right laid down by the Convention must not only pursue a legitimate aim: Article 14 will also be violated when it is clearly established that there is no reasonable relationship of proportionality between the means employed and the aim sought to be realised ( see, for example, Zarb Adami, cited above, § 72; Stec and Others, § 51; Petrovic, cited above, § 30; and Lithgow and Others v. the United Kingdom, 8 July 1986, Series A no. 102, § 177). 91. In other words, the notion of discrimination includes in general cases where a person or group is treated, without proper justification, less favourably than another, even though the more favourable treatment is not called for by the Convention ( see Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May 1985, § 82, Series A n. 94). Indeed, Article 14 does not prohibit distinctions in treatment which are founded on an objective assessment of essentially different factual circumstances and which, being based on the public interest, strike a fair balance between the protection of the interests of the community and respect for the rights and freedoms safeguarded by the Convention ( see, among other authorities, G.M.B. and K.M. v. Switzerland (dec.), no. 36797/97, 27 September 2001, and Zarb Adami, cited above, § 73). 92. The Contracting States enjoy a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment. The scope of this margin will vary according to the circumstances, the subject matter and the background ( see Fretté v. France, no. 36515/97, § 40, ECHR 2002 ‑ I; Stec and Others, cited above, § 52; Rasmussen v. Denmark, 28 November 1984, § 40, Series A no. 87; and Inze v. Austria, 28 October 1987, § 41, Series A no. 126). 93. Furthermore, since the Convention is first and foremost a system for the protection of human rights, the Court must have regard to the changing conditions in the respondent State and in Contracting States in general and respond, for example, to any emerging consensus as to the standards to be achieved. One of the relevant factors in determining the scope of the margin of appreciation left to the authorities may be the existence or non-existence of common ground between the laws of the Contracting States the Convention ( see Glor, cited above, § 75, and Sitaropoulos and Giakoumopoulos v. Greece [GC], no. 42202/07, § 66, ECHR 2012). 94. A wide margin is usually allowed to the State under the Convention when it comes to general measures of economic or social strategy. Because of their direct knowledge of the society and its needs, the national authorities were better placed than the international judge to appreciate what was in the public interest in economic or social matters, and the Court will generally respect the legislature ’ s policy choice unless it is “manifestly without reasonable foundation” ( see Carson and Others v. the United Kingdom [GC], no. 42184/05, § 61, ECHR 2010, and Stec and Others, cited above, § 52). (ii) Application of the principles in the instant case (α) The existence of grounds for discrimination covered by Article 14 95. The applicants, having moved to Brazil, are complaining of discrimination on account of the withdrawal of the first applicant ’ s right to social benefits of a non-contributory nature, payment of which is, by definition linked to permanent residence in Switzerland. They are being treated differently from persons who contributed to the social security system - for example because they only became disabled after having worked for a number of years – and who are entitled to the benefits even if they live abroad. 96. Article 14 lists the precise constituent elements of a “ situation ”, such as race, national or social origin and birth. However, the list set out in this provision is indicative, and not limitative, in nature, as witness the expression “any ground such as” (“ notamment ” in the French version) (see Engel and Others v. the Netherlands, 8 June 1976, § 72; Carson and Others, cited above, § 70; and Biao v. Denmark [GC], no. 38590/10, § 89, 24 May 2016), as well as the expression in the list “any other status” (“ toute autre situation ” in the French version). The expression “ any other status ” has generally been regarded as a broad interpretation ( see Carson and Others, cited above, § 70, and Biao, cited above, § 89) which is not limited to different treatment based on characteristics which are personal in the sense that they are innate or inherent ( see Clift v. the United Kingdom, no. 7205/07, §§ 56-58, 13 July 2010, and Biao, cited above, § 89). 97. The Court further specifies that the second applicant is not herself a disabled person, but instead states that she is the victim of unfavourable treatment on the grounds of the type of disability affecting her daughter ’ s, with whom she lives, whom she provides with healthcare and who is under her guardianship ( see paragraph 7 above ). Moreover, since her daughter has no capacity of discernment, the second applicant, as her guardian, necessarily originated the domestic proceedings to which both applicants were admitted as parties by the Swiss courts. The Court therefore considers that the second applicant can claim to be a victim, at least indirectly or by association ( see, to that effect, Guberina v. Croatia, no. 23682/13, §§ 76-79, 22 March 2016), of the alleged discrimination. 98. Having regard to the foregoing considerations, the Court considers that the two applicants can rely on grounds of discrimination covered by Article 14. In the present case, the discrimination relates to the nature of the first applicant ’ s disability, in conjunction with the (contributory or non-contributory) type of the impugned benefits, and is accordingly covered by Article 14. In relevantly similar situations 99. The Court reiterates that a difference in treatment may raise an issue from the point of view of the prohibition of discrimination as provided for in Article 14 of the Convention only if the persons subjected to different treatment are in a relevantly similar situation, taking into account the elements that characterise their circumstances in the particular context ( see Fábián v. Hungary [GC], no. 78117/13, § 121, 5 September 2017). It notes that the elements which characterise different situations, and determine their comparability, must be assessed in the light of the subject-matter and purpose of the measure which makes the distinction in question (ibid. ). 100. As regards the field concerned, the Court observes that the case concerns the exportability of a invalidity pension. It raises therefore, on the one hand, issues of a general nature in the economic and social sphere, in which the State has a broad margin of discretion; on the other hand, it involves an allegation of discrimination against a severely disabled person, and therefore a particularly vulnerable group of persons who have suffered, and are still suffering, major inequalities. 101. In connection with the purpose of the measure, the applicants consider that they have been discriminated against as compared to disable persons who, in particular following an accident or illness, are entitled to export their invalidity pensions. The Government submitted that the situation of a beneficiary of an ordinary invalidity pension differed from that of the first applicant in that only in the former case had the person in question contributed to the Swiss social insurance scheme. The Court considers that the aim of these two types of pension is to guarantee disability income in two different types of situation : in the case of the ordinary invalidity pension for persons having contributed to the invalidity insurance system, and in the case of the disability allowance and the extraordinary invalidity insurance pension for persons who have not contributed to the invalidity insurance system. The Court takes the view that as regards the comparability of these two situations, the mere fact that the applicants have not contributed to the system is not decisive. On the other hand, that fact will be taken into account in the reasons given for the unequal treatment, which will be examined below ( see paragraphs 104-114). 102. The Court accordingly considers that although the situation of the first applicant, who has been disabled since birth and is the beneficiary of an extraordinary invalidity insurance pension and a disability allowance (which are not exportable) is not identical to that of a person benefiting from an (exportable) ordinary invalidity insurance pension, but is sufficiently comparable to the latter situation. The Court holds that she sustained unequal treatment. It remains to be seen whether the Government can advance any objective and reasonable justification for that state of affairs. γ) The existence of a justification for the unequal treatment 103. The Government submitted that the fact that a person had or had not contributed to the invalidity insurance scheme was valid justification for differentiated treatment under Article 14. The Court agrees, and considers that contributing or not contributing to the scheme constitutes an objective justification for the unequal treatment, even though the differentiation is in fact based on the first applicant ’ s disability, in other words a condition over which she has no control. 104. As regards the reasonableness of the justification for the unequal treatment, the Court emphasises from the outset that the applicants did not complain of discrimination as compared to non-disabled persons, but rather that they felt discriminated against as compared with persons who, having contributed to the invalidity insurance scheme, have become disabled and can export their pensions abroad. 105. The applicants alleged that their family ties and their social relations were in Brazil and not in Switzerland, that the withdrawal of the pension and allowance had severely affected their everyday lives and that in the absence of the requisite funds, they could no longer call on the services of an outside assistant capable of providing medical care for the first applicant. They also mentioned their enormous difficulties in finding a buyer for their hotel in Brazil, and alleged that a forced departure would have extremely serious effects on both applicants in psychological and emotional terms. 106. The Court is not convinced that those allegations were duly relied upon before the domestic authorities. At all events, it reiterates that those disadvantages originated in the decision freely taken by the second applicant to leave Switzerland, despite the clear legislation providing for the non- exportability of the extraordinary invalidity insurance pension and the disability allowance. The applicants ought therefore to have expected those benefits to be withdrawn. They do not argue that the legal bases for withdrawing the benefits were unforeseeable or inaccessible. 107. It should also be remembered that the applicants, Swiss national, are perfectly entitled to resettle in Switzerland. Moreover, it transpires from the case file that the first applicant paid regular visits to her father in Switzerland. That being the case, it cannot be claimed that resettling in Switzerland, in which country they spent most of their lives, would pose insuperable problems for the applicants. On the contrary, contacts between the first applicant and her father, who lives in Switzerland, would even be made easier. 108. As regards the interests of the respondent State, the Court does not regards it as incompatible with the Convention to link up the grant of the extraordinary invalidity insurance pension and the disability allowance with the ordinary residence criterion, in particular inasmuch as Article 8 does not secure entitlement to a pension or a social benefit of a specified amount. 109. That is, in fact, confirmed by a comparison of the solutions used in other Council of Europe member States. The Court reiterates that it may examine the situation in other member States in respect of the issues at stake in a given case in order to assess whether there exists a “European consensus” or at least a certain trend among the member States ( see, mutatis mutandis, Naït ‑ Liman v. Switzerland [GC], no. 51357/07, § 175, ECHR 2018; Bayatyan v. Armenia [GC], no. 23459/03, § 122, ECHR 2011; and Hämäläinen v. Finland [GC], no. 37359/09, §§ 72-75, ECHR 2014). 110. In that regard, the Court considers that the following conclusions may be drawn from the analysis of comparative law and of European Union law : first of all, it would appear that the distinction between contributory and non- contributory benefits is indeed confirmed in the Council of Europe member States ( see paragraph 31 above ) and represents the general rule in European law ( see paragraphs 32-39 above ). There is, therefore, nothing unusual or arbitrary about it. Secondly, the classification as “non- contributory benefits” of the two benefits in issue in the present case, to wit, an extraordinary invalidity pension and a disability allowance, is in conformity with the practice of Council of Europe member States and with EU law. Thirdly, it cannot be overlooked that the fact of making entitlement to non-contributory benefits subject to a condition of residence in the paying country is the general rule in almost all the member countries of the Council of Europe and in all three Council of Europe non-member States compared (see paragraph 31 above). That solution was also adopted by the European Union in Regulation 883/2004/ EC of 29 April 2004 ( see paragraph 36 above ). It follows that the approach adopted in the instant case by the Swiss authorities tallies with the solutions used in the Council of Europe and the European Union. 111. Having regard to the foregoing considerations, the first applicant ’ s interest in receiving the impugned benefits under the same conditions as persons having contributed to the system must yield to the public interest of the respondent State, consisting in guaranteeing the principle of social insurance solidarity, which is particularly important in the case of a non- contributory benefit, even if the reason why the first applicant never contributed to the system was completely beyond her control or influence. In that regard, the Court considers particularly relevant the Government ’ s argument to the effect that a non-contributory benefit is supposed to guarantee that disabled persons who did not satisfy the conditions for obtaining an ordinary pension could benefit from the solidarity of others and have the requisite means of subsistence to live in Switzerland. However, it is not contrary to the Convention to hold that the preservation of that solidarity mechanism depends on the will and the trust of other people, which requires the grant of benefits to be subject to certain conditions, for example requiring beneficiaries to have their ordinary residence in Switzerland. It is reasonable for a State granting non-contributory benefits not to wish to pay them abroad, particularly if the cost of living in the foreign country in question is considerably lower. 112. Having regard to the broad margin of appreciation in the economic and social spheres and to the principle that the Court respects, a priori, the State ’ s judgment as to what is in the general interest, the Court concludes that the justification for the unequal treatment put forward by the Government is not unreasonable. 113. It follows that there has been no violation of Article 14 read in conjunction with Article 8 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION TAKEN ALONE Admissibility 1. The parties ’ submissions 114. The applicants also alleged a violation of Article 8 taken alone. 115. As regards the existence of the interference, the applicants submitted that they shared extremely strong family ties and that the lack of benefits would force the first applicant to return to Switzerland, far from her next-of-kin; if the second applicant had to follow her, she would have to leave her husband behind in Brazil. 116. As regards the legitimate aim of the interference, the applicants stated that the well-being of the domestic economy should be less important than the deprivation of the personal autonomy of the first applicant, who would have to be provided for in an expensive institution should she de return to Switzerland alone. 117. For the reasons cited under Article 14, they considered that the impugned measure had not been necessary in a democratic society. 118. The Government invited the Court to declare the complaint under Article 8 inadmissible, as principal submission, for incompatibility ratione materiae with the Convention pursuant to Article 35 § 3 ( a) of the Convention, and in the alternative, as being manifestly ill- founded. 119. The Government submitted that Switzerland had in no way interfered with the decision of the second applicant and her husband, accompanied by the first applicant, to settle in Brazil in order to manage their hotel; furthermore, the applicants were free to resettle in Switzerland in order to regain entitlement to the impugned benefits. 120. The Government considered that the measure geared to maintaining the solidarity mechanism underpinning the system – which is well known in the system for coordinating social security schemes – of non-exportable non- contributory benefits funded from tax resources, protected the country ’ s economic well-being and the rights and freedoms of others. 121. The Government further noted that it had not been established that departure from Brazil would be extremely unsafe; in the event of a return to Switzerland, even though no country could be expected to protect people from all the vicissitudes of life, the first applicant would be surrounded by her father and her family, which ruled out automatic institutionalisation and loss of autonomy. 2. The Court ’ s assessment 122. Having regard to the applicability of Article 14 read in conjunction with Article 8 ( see paragraphs 57-67 above ), the Court has noted that the applicants ’ complaint falls within the ambit of Article 8. For essentially the same reasons, it considers that that provision is applicable to the present complaint. 123. The Court considers that the refusal to pay the benefits abroad amounts to an interference with the applicants ’ rights as secured under Article 8 in so far as the impugned pensions are liable to have repercussions on the organisation of the two applicants ’ family life, as explained in the section on the applicability of Article 14 of the Convention ( see paragraphs 65-66 above ). 124. On the other hand, it considers that the interference was prescribed by law, in particular under the LPGA and the LAI ( see paragraphs 19-27 above ) and that it pursued a legitimate aim, that is to say social insurance solidarity, which is relevant to the protection of the rights of others and the economic well-being of the country within the meaning of Article 8 § 2 of the Convention. The Court also holds that the interference was necessary in a democratic society and was proportionate to the aims sought to be achieved. As regards this latter factor, the Court does not consider it unreasonable to make the payment of non-contributory benefits subject to ordinary residence in Switzerland. 125. It follows from the foregoing considerations that this complaint is manifestly ill- founded and must be rejected pursuant to Article 35 §§ 3 ( a) and 4 of the Convention. | The Court held that there had been no violation of Article 14 (prohibtion of discrimination) of the Convention taken together with Article 8 (right to respect for private and family life), as it did not consider it contrary to the Convention for the payment of non-contributory benefits to be made subject to a condition of habitual residence in Switzerland. It found in particuliar that the first applicant’s interest in obtaining the benefits in question under the same conditions as persons who had contributed to the scheme should yield to the public interest of the State in guaranteeing the principle of solidarity in social-insurance schemes, which was especially important with regard to non-contributory benefits; this was so even though the reason why the applicant had not contributed to the scheme was entirely beyond her control or sphere of influence. |
732 | Industrial pollution | II. RELEVANT DOMESTIC LAW A. Constitution of Ukraine 64. Relevant provisions of the Constitution read as follows: Article 16 “ To ensure ecological safety and to maintain the ecological balance on the territory of Ukraine, to overcome the consequences of the Chernobyl catastrophe — a catastrophe of global scale, and to preserve the gene pool of the Ukrainian people, is the duty of the State. ” Article 50 “Everyone has the right to an environment that is safe for life and health, and to compensation for damages inflicted through the violation of this right ... ” B. Law of Ukraine “ On Local Councils of People's Deputies and Local and Regional Self-Government” of 7 December 1990 (repealed with effect from 21 May 1 997) 65. According to Article 57 of the Law, private and public entities and individuals could be held liable under the law for failure to comply with lawful decisions of bodies of regional self-government (which included executive committees of district councils). 66. Subsequent legislation concerning local self-government did not envisage the existence of such a body as an executive committee of a district council. C. Law of Ukraine “On Waste” of 5 March 1998 67. Relevant provisions of the Law “On Waste” read as follows: Section 9. Property rights to waste “ The State is the owner of waste produced on State property. .. On behalf of the State the management of waste owned by the State shall be carried out by the Cabinet of Ministers. ” D. Law of Ukraine “On Measures to Ensure the Stable Operation of Fuel and Energy Sector Enterprises” of 23 June 2005 68. The above Law introduced a new mechanism for payment and amortisation of companies'debts for energy resources. It also introduced a special register of companies involved in debt payment and amortisation under its provisions. A company's presence on that register suspends any enforcement proceedings against it; domestic courts shall also dismiss any request to initiate insolvency or liquidation proceedings against the company. E. Order of the Ministry of Health No. 173 of 19 June 1996 “On Approval of the State Sanitary Rules concerning Planning and Construction of Populated Communities” 69. Relevant provisions of the Order of the Ministry of Health read as follows: “ 5.4. Industrial, agricultural and other objects, which are sources of environmental pollution with chemical, physical and biological factors, in the event that it is impossible to create wasteless technologies, should be separated from residential areas by sanitary security zones. ... On the exterior boundary of a sanitary security zone which faces a residential area, concentrations and levels of harmful substances should not be greater than those set down in the relevant hygiene standards (maximum permissible concentrations, maximum permissible levels) ... 5.5. ... In the event the studies do not confirm the statutory sanitary security zone or its establishment is not possible under particular circumstances, it is necessary to take a decision concerning a change of production technology, which would provide for decrease in emission of harmful substances into the atmosphere, its re-profiling or closure. Supplement No. 4, Sanitary classification of enterprises, production facilities and buildings and their required sanitary security zones : ... .. A sanitary security zone of 500 metres [shall surround the following facilities]: .... 5. Spoil heaps of mines which are being exploited, inactive spoil heaps exceeding 30 metres in height which are susceptible to combustion; inactive spoil heaps exceeding 50 metres in height which are not susceptible to combustion. A sanitary security zone of 300 metres [shall surround the following facilities]: ... 5. ... coal-processing factories using wet treatment technology 6. ... inactive spoil heaps of mines, less than 50 metres in height and not susceptible to combustion. ” THE LAW I. SCOPE OF THE CASE 70. On 18 September 2009 the applicants'representative informed the Court that applicant Mr Arkadiy Gavrylyuk had died. She further requested that his claims be excluded from consideration. 71. The Court considers that, in the absence of any heir expressing the wish to take over and continue the application on behalf of Mr Arkadiy Gavrylyuk, there are no special circumstances in the case affecting respect for human rights as defined in the Convention and requiring further examination of the application under Article 37 § 1 in fine of the Convention (see, for example, Pukhigova v. Russia, no. 15440/05, §§ 106 ‑ 107, 2 July 2009 and Goranda v. Romania (dec.), no. 38090/03, 25 May 2010). 72. In view of the above, it is appropriate to strike the complaints lodged by Mr Arkadiy Gavrylyuk out of the list. II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 73. The applicants complained that the State authorities had failed to protect their home, private and family life from excessive pollution generated by two State-owned industrial facilities. They relied on Article 8 of the Convention, which reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Admissibility 1. Submissions by the parties (a) The Government 74. The Government submitted that the application was inadmissible ratione temporis in so far as it related to the facts predating 11 September 1997, the date of entry of the Convention into force with respect to Ukraine. 75. They further submitted that the Gavrylyuk- Vakiv family could not claim to be victims of any violations of Article 8 as in 1959 they had unlawfully constructed their house on the land, which was formally allocated to them only a year later. Moreover, in breach of the law in force at the material time, this family had never requested authorisation of the mining authorities to construct their house on the land above the mine. As the Gavrylyuk-Vakiv family had deliberately constructed their house on land under industrial development and in so doing acted in violation of applicable law, they could not claim that the State had any obligations relating to respect for their Article 8 rights while they lived in this house. Their complaints were therefore inadmissible ratione personae. 76. The Government also submitted as an alternative that the Gavrylyuk ‑ Vakiv family's complaints were manifestly ill-founded, as their family lived outside the statutory buffer zones of both the mine and the factory, and their resettlement claim was rejected by a competent court at the close of adversary proceedings. These applicants had therefore not made out an arguable Convention claim. 77. Finally, the Government contended that none of the applicants had exhausted available domestic remedies. In particular, they had never claimed compensation from either the mine or the factory for any damage allegedly sustained on account of their industrial activity. (b) The applicants 78. The applicants disagreed. They noted that while the situation complained about had started before the entry of the Convention into force with respect to Ukraine, it continued afterwards and up to the present day. In particular, the Sokalskyy Executive Committee's decision to resettle them had not been formally quashed and was in force by the date of the Convention's entry into effect. So the competent authorities were responsible for its non-enforcement, as well as for the non-enforcement of the subsequent decision of the Ecological Safety Commission concerning the applicants'resettlement and the Chervonograd Court's judgment in the Dubetska-Nayda family's favour. Likewise, the State bore responsibility for failure to enforce the buffer zone management plans for the mine and the factory leading to environmental deterioration in the area, where the applicants lived. 79. The applicants further submitted that the Gavrylyuk-Vakiv family had constructed their house lawfully, on land duly allocated for this purpose, while in 1960 they had been given extra land for gardening. The Government's submission that they had to seek the mining authorities'permission to build a house was not based on law. Also, by the time the Convention entered into force in respect of Ukraine, their house had been properly registered with the authorities, as evidenced by the property certificate provided by them to the Court. 80. The applicants further contended that the fact that the Chervonograd Court had dismissed the Gavrylyuk-Vakiv family's resettlement claim did not render their application manifestly ill-founded, regard being had to the actual excessive levels of pollution in the vicinity of their home. In rejecting their claim for resettlement the courts had relied on the prospective improvements anticipated following implementation of the buffer zone management plan for the factory. As the plan remained unimplemented, this group of applicants continued to suffer from excessive pollution and their claim was therefore not manifestly ill-founded. 81. Finally, the applicants alleged that they had properly exhausted domestic remedies, as they aired their complaints through domestic courts and referred to environmental pollution as the reason to claim resettlement. 2. The Court's assessment 82. In so far as the Government alleged partial inadmissibility of the application as falling outside the scope of the Court's temporal jurisdiction, the Court considers itself not competent ratione temporis to examine the State actions or omissions in addressing the applicants'situation prior to the date of the entry of the Convention into force with respect to Ukraine (11 September 1997). It is however competent to examine the applicants'complaints, which relate to the period after this date (see, mutatis mutandis, Fadeyeva v. Russia, no. 55723/00, § 82, ECHR 2005 ‑ IV ). 83. As regards the Government's allegation that the complaints lodged by the Gavrylyuk-Vakiv family are incompatible with the Convention ratione personae, the Court notes, firstly, that Article 8 of the Convention applies regardless of whether an applicant's home has been built or occupied lawfully (see, among other authorities, Prokopovich v. Russia, no. 58255/00, § 36, ECHR 2004 ‑ XI (extracts) ). Moreover, it notes that irrespective of whether the house at issue was lawfully constructed or regularised after the family had settled in it, by 11 September 1997, when the Convention entered into force with respect to Ukraine, the Gavrylyuk ‑ Vakiv family was occupying it lawfully. This fact is not disputed between the parties. In light of the above the Government's objection should be dismissed. 84. As regards the Government's allegation that the Gavrylyuk-Vakiv family's claims were manifestly ill-founded as their resettlement claim had been rejected in domestic proceedings, the Court agrees that it is not in a position to substitute its own judgment for that of the national courts and its power to review compliance with domestic law is limited ( see, among other authorities, Slivenko v. Latvia [GC], no. 48321/99, § 105, ECHR 2003 ‑ X and Paulić v. Croatia, no. 3572/06, § 39, 22 October 2009 ). It is the Court's function, however, to review the reasoning adduced by domestic judicial authorities from the point of view of the Convention ( see Slivenko, cited above, ibid.). Furthermore, the Court notes that the Gavrylyuk- Vakiv family's complaint is not limited to the alleged unfairness of the judgments dismissing their resettlement claim. It concerns a general failure of the State to remedy their suffering from adverse environmental effect of pollution in their area. The Government's objection must therefore be dismissed. 85. Finally, as regards the non-exhaustion objection, the Court notes that the Government have not presented any examples of domestic court practice whereby an individual's claim for compensation against an industrial pollutant would be allowed in a situation similar to that of the applicants. Furthermore, both applicant families in the present case chose to exhaust domestic remedies with respect to their claim to be resettled from the area, permanently affected by pollution. One family obtained a resettlement order, which however remains unenforced as the debtor mine lacks budgetary allocations for it, and the other's claim was dismissed on the grounds that it lived outside the pollutants'statutory buffer zone. In view of all the above the Court has doubts concerning the applicants'prospects of success in compensation proceedings. 86. Even assuming, however, that such compensation could be awarded to them for past pollution and paid in good time, the Court notes that the applicants complain about continuing pollution, curtailing which for the future appears to necessitate some structural solutions. It is not obvious how the compensatory measure proposed by the Government would address this matter. In light of the above, the Court dismisses the non-exhaustion objection. 87. In conclusion, the Court notes that the application raises serious issues of fact and law under the Convention, the determination of which must be reserved to an examination of the merits. The application cannot therefore be declared manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. No other ground for declaring it inadmissible has been established. The Court, therefore, declares the application admissible. B. Merits 1. Applicability of Article 8 of the Convention (a) Submissions by the parties ( i ) The applicants 88. The applicants submitted that they were suffering from serious State interference with their rights guaranteed by Article 8 of the Convention, on account of environmental pollution emanating from the State-owned mine and factory ( in particular their spoil heaps ), as well as from the State's failure to cope with its positive obligation to regulate hazardous industrial activity. 89. The applicants further noted that they had set up their present homes lawfully, before they could possibly have known that the area would fall within the legislative industrial buffer zone and would be environmentally unsafe. 90. The applicants next alleged that the Government's plan approving the 300-metre buffer zone around the factory was controversial, as operation of the spoil heap required a 500-metre buffer zone. The plan at issue had not been approved by the State Medical Officer for Health until it had previewed the measures for decreasing the height of the waste heap to 50 metres and hydro-insulating it, which has not been done so far. They considered, therefore, that they continued to live within the scientifically justifiable buffer zone of the waste heap. 91. The applicants further contended that not only their houses were located within the zone formally designated by the law as inappropriate for habitation, but there was considerable evidence that the actual air, water and soil pollution levels in the vicinity of their homes were unsafe and were such as could increase the applicants'vulnerability to pollution-associated diseases. In this regard they referred to various Governmental and non-governmental reports and surveys discussed in paragraphs 13-23 above. 92. The applicants additionally noted that other hazards included flooding of the nearby areas and soil subsidence caused by mining activities. They alleged that regard being had to the existence of numerous underground caverns dug out in the course of mining operations these hazards would exist even if no new mining activities took place. 93. In the meantime, the applicants were unable to relocate without the State's assistance, as on account of industrial pollution there was no demand for real estate in their hamlet and they were not capable of finding other sources of funding for relocation. 94. Finally, the applicants noted that the State being the owner of the factory for numerous years and remaining at present the owner of its spoil heap as well as the owner of the mine, was fully aware of and responsible for the damage caused by their everyday operations, which had been going on for a long time. It therefore had responsibility under Article 8 of the Convention to take appropriate measures to alleviate the applicants'burden. ( ii ) The Government 95. The Government did not dispute that they had Convention responsibility for addressing environmental concerns associated with the mine and the factory operation. 96. On the other hand, they contested the applicants'submissions as regards the damage suffered by them on account of alleged pollution. In particular, the Government submitted that, as regards the pollution emitted by the factory, its levels were generally safe outside the 300-metre zone around it, as confirmed by numerous studies. It is in view of these studies that the 300-metre buffer zone around the factory was approved by the relevant authorities in 2005. The applicants'houses, located 430 and 42 0 metres from the factory, should accordingly have been safe, regardless of whether the buffer zone plans had formally been put in place. Although occasional incidents of increased emissions might have taken place, they were promptly monitored and appropriate measures to decrease them were applied in good time, as evidenced, for instance, by the sanctions imposed on the factory management (see paragraphs 32 and 3 5 above ). 97. The Government further submitted that although the Dubetska ‑ Nayda family lived within the boundaries of the mine spoil heap's buffer zone, they, like the Gavrylyuk-Vakiv family, which lived outside the buffer zones of either the mine or the factory, had failed to substantiate any actual damage sustained on account of their proximity to both industrial facilities. 98. As regards the applicants'reference to several chronic diseases suffered by some of them, these could well be associated with their occupational activities and other factors. 99. As regards soil subsidence and flooding, the Government referred to geological studies which determined that the mountainous area in which the applicants lived had layers of water-bearing sands underneath the surface, susceptible to flotation. Based on these studies, the Government alleged that it could not be proved beyond reasonable doubt that the soil had subsided as a result of mining activities, rather than of a natural geological process. 100. The Government next alleged that in so far as the applicants complained about the water quality, various studies, including the one done by the Zakhidukrgeologiya (see paragraph 15 above) scientifically proved that the chemical composition and purity of the underground water in the area was naturally unfavourable for household consumption, except when drilled for at a much deeper level than was done for the applicants'households. In addition, the applicants'wells were not equipped with the necessary filters and pipes. Moreover, the applicants were supplied with imported water. Finally, it was not in 2009, as suggested by the applicants (see paragraph 25 above), but in 2007 that a centralised aqueduct for the hamlet was put into operation. 101. As regards the authorities'decisions on the applicants'resettlement, they were based on preventive rather than remedial considerations. The decision taken by the Sokalskyy Executive Committee had expired by 1997 in view of the change in economic circumstances. The decision at issue had been taken when enlargement of the factory was being contemplated, which called for the establishment of a 500 - metre buffer zone around it. If such a zone had been approved the applicants'houses would have been located within its boundaries, setting in motion the legal provisions calling for their resettlement regardless of the actual level of pollution. However, by 1997 it had become clear that the enlarged zone would not be necessary and the 1994 decision automatically became invalid. 102. Moreover, in 1995 the Sokalskyy Executive Committee had made amendments to its resettlement decision. Following requests from residents subject to resettlement, the Committee decided that there was no need to demolish their former houses, which could be used by them for recreational and gardening purposes. Several families who had been provided with alternative housing in 2000-03 as they lived within the 300- metre buffer zone, did in fact continue to use their previous houses, including for long periods, and refused to give them up. 103. In the Government's view, this fact was evidence that the applicants'resettlement claims were in fact not based on the actual levels of pollution. The conclusion that the Gavrylyuk- Vakiv family's [3] resettlement was not necessary was likewise reasonably made by the national judicial authorities. As regards the Dubetska-Nayda family, their resettlement was ordered on the basis of formal statutory provisions and did not involve any assessment of the actual or potential damage involved. In any event, both families were free to apply to the authorities for placement on a waiting list for social housing, which they had never done. 104. In sum, the applicants did not show that the operation of either the mine or the factory had infringed on their rights to an extent which would attract State responsibility under Article 8 of the Convention. ( b ) The Court's assessment (i) The Court's jurisprudence 105. The Court refers to its well-established case-law that neither Article 8 nor any other provision of the Convention guarantees the right to preservation of the natural environment as such (see Kyrtatos v. Greece, no. 41666/98, § 52, ECHR 2003-VI). Likewise, no issue will arise if the detriment complained of is negligible in comparison to the environmental hazards inherent in life in every modern city. However, an arguable claim under Article 8 may arise where an environmental hazard attains a level of severity resulting in significant impairment of the applicant's ability to enjoy his home, private or family life. The assessment of that minimum level is relative and depends on all the circumstances of the case, such as the intensity and duration of the nuisance and its physical or mental effects on the individual's health or quality of life (see, among other authorities, Fadeyeva, cited above, §§ 68-69). 106. While there is no doubt that industrial pollution may negatively affect public health in general and worsen the quality of an individual's life, it is often impossible to quantify its effects in each individual case. As regards health impairment for instance, it is hard to distinguish the effect of environmental hazards from the influence of other relevant factors, such as age, profession or personal lifestyle. “ Quality of life” in its turn is a subjective characteristic which hardly lends itself to a precise definition ( see Ledyayeva and Others v. Russia, nos. 5 3157/99, 53247/99, 53695/00 and 56850/00, § 90, 26 October 2006 ). 107. Taking into consideration the evidentiary difficulties involved, the Court will primarily give regard to the findings of the domestic courts and other competent authorities in establishing the factual circumstances of the case (see Buckley v. the United Kingdom, judgment of 25 September 1996, Reports of Judgments and Decisions 1996-IV, pp. 1291-93, §§ 74-77). As a basis for the analysis it may use, for instance, domestic legal provisions determining unsafe levels of pollution ( see Fadeyeva, cited above, § 87 ) and environmental studies commissioned by the authorities ( see Taşkın and Others v. Turkey, no. 46117/99, § §11 3 and 120, ECHR 2004 ‑ X ). Special attention will be paid by the Court to individual decisions taken by the authorities with respect to an applicant's particular situation, such as an undertaking to revoke a polluter's operating licence (see Taşkın and Others, cited above, § 112) or to resettle a resident away from a polluted area ( see Fadeyeva, cited above, § 86 ). However, the Court cannot rely blindly on the decisions of the domestic authorities, especially when they are obviously inconsistent or contradict each other. In such a situation it has to assess the evidence in its entirety ( see Ledyayeva and Others, cited above, § 90 ). Further sources of evidence for consideration in addition to the applicant's personal accounts of events, will include, for instance, his medical certificates ( see Lars and Astrid Fägerskiöld v. Sweden (dec.), no. 37664/04, 26 February 2008 ) as well as relevant reports, statements or studies made by private entities ( see Fadeyeva, cited above, § 85 ). 108. In addition, in order to determine whether or not the State could be held responsible under Article 8 of the Convention, the Court must examine whether a situation was a result of a sudden and unexpected turn of events or, on the contrary, was long-standing and well known to the State authorities (see Fadeyeva, cited above, §§ 90-91); whether the State was or should have been aware that the hazard or the nuisance was affecting the applicant's private life (see López Ostra v. Spain, 9 December 1994, § § 52 ‑ 53, Series A no. 303 ‑ C) and to what extent the applicant contributed to creating this situation for himself and was in a position to remedy it without a prohibitive outlay ( see Ledyayeva, cited above, § 97 ). ( ii ) Assessment of the facts in the present case 109. The Court reiterates that the present case concerns an allegation of adverse effects on the applicants'Article 8 rights on account of industrial pollution emanating from two State-owned facilities – the Vizeyska coal mine and the Chervonogradska coal-processing factory (in particular, its waste heap, which is 60 metres high ). 110. The applicants'submissions relate firstly to deterioration of their health on account of water, air and soil pollution by toxic substances in excess of permissible concentrations. In addition, these submissions likewise concern the worsening of the quality of life in view of the damage to the houses by soil subsidence and persistent difficulties in accessing non-contaminated water, which have adversely affected the applicants'daily routine and interactions between family members. 111. In assessing to what extent the applicants'health was affected by the pollution complained about, the Court agrees with the Government that there is no evidence making it possible to establish quantifiable harm in the present case. It considers, however, that living in the area marked by pollution in clear excess of applicable safety standards exposed the applicants to an elevated risk to health. 112. As regards the quality of the applicants'life, the Court notes the applicants'photographs of water and their accounts of their daily routine and communications (see paragraphs 24-30 above ), which appear to be palpably affected by environmental considerations. 113. It notes that, as suggested by the Government, there may be different natural factors affecting the quality of water and causing soil subsidence in the applicants'case (see, for instance, paragraph 21 above ). Moreover, at the present time the issue of accessing fresh water appears to have been resolved by the recent opening of a centralised aqueduct. At the same time, the case file contains sufficient evidence that the operation of the mine and the factory (in particular their spoil heaps ) have contributed to the above problems for a number of years, at least to a certain extent. 114. This extent appears to be not at all negligible, in particular as according to domestic legislation residential houses may not be located within the buffer zones of the mines and the spoil heaps are designated as a priori environmentally hazardous. It appears that according to the State Sanitary Rules, a “safe distance” from a house to a spoil heap exceeding 50 metres in height is estimated at 500 metres (see paragraph 69 above). The Dubetska-Nayda family's house is situated 100 metres from the mine spoil heap and 430 metres from the factory one. The Gavrylyuk-Vakiv family's house in its turn is situated 420 metres from the factory spoil heap. 115. While agreeing with the Government that the statutory definitions do not necessarily reflect the actual levels of pollution to which the applicants were exposed, the Court notes that the applicants in the present case have presented a substantial amount of data in evidence that the actual excess of polluting substances within these distances from the facilities at issue has been recorded on a number of occasions (see paragraphs 17-18 and 22 -2 3 above). 116. In deciding on whether the damage (or risk of damage) suffered by the applicants in the present case was such as to attract guarantees of Article 8, the Court also has regard to the fact that at various times the authorities considered resettling the applicants. The need to resettle the Dubetska- Nayda family was ultimately confirmed in a final judgment given by the Chervonograd Court on 26 December 2005. 117. As regards the Gavrylyuk- Vakiv family, on 21 June 2004 the same court found their resettlement unnecessary. However, in its findings the judicial authorities relied on anticipation that the factory would promptly enforce the measures envisioned in its prospective buffer zone management plan. These measures included hydro-insulation of the spoil heap and decreasing its height to 50 metres (in which case, as noted by the applicants, a 300-metre buffer zone around the spoil heap would become permissible under domestic law). According to the case file materials, these measures have not yet been carried out. 118. Consequently, it appears that for a period exceeding twelve years since the entry of the Convention into force in respect of Ukraine, the applicants were living permanently in an area which, according to both the legislative framework and empirical studies, was unsafe for residential use on account of air and water pollution and soil subsidence resulting from the operation of two State-owned industrial facilities. 119. In these circumstances the Court considers that the environmental nuisance complained about attained the level of severity necessary to bring the complaint within the ambit of Article 8 of the Convention. 120. In examining to what extent the State owed a duty to the applicants under this provision, the Court reiterates that the present case concerns pollution emanating from the daily operation of the State-owned Vizeyska coal mine and the Chervonogradska coal-processing factory, which was State-owned at least until 2007; its spoil heap has remained in State ownership to the present day. The State should have been, and in fact was, well aware of the environmental effects of the operation of these facilities, as these were the only large industries in the vicinity of the applicant families'households. 121. The Court further notes that the applicants set up their present homes before the facilities were in operation and long before the actual effect of their operation on the environment could be determined. 122. The Court also observes that, as the Government suggests, in principle the applicants remain free to move elsewhere. However, regard being had to the applicants'substantiated arguments concerning lack of demand for their houses located in the close proximity to major industrial pollutants, the Court is prepared to conclude that remedying their situation without State support may be a difficult task. Moreover, the Court considers that the applicants were not unreasonable in relying on the State, which owned both the polluters, to support their resettlement, especially since a promise to that effect was given to them as early as in 1994. As regards the Government's argument that the applicants could have applied for social housing, in the Court's view they presented no valid evidence that a general request of this sort would have been more effective than other efforts made by the applicants to obtain State housing, especially in view of the fact that the only formal reason for them to seek relocation was environmental pollution. 123. In the Court's opinion the combination of all these factors shows a strong enough link between the pollutant emissions and the State to raise an issue of the State's responsibility under Article 8 of the Convention. 124. It remains to be determined whether the State, in securing the applicants'rights, has struck a fair balance between the competing interests of the applicants and the community as a whole, as required by paragraph 2 of Article 8. 2. Justification under Article 8 § 2 of the Convention ( a ) Submissions by the parties (i) The applicants 125. The applicants asserted that in addressing their environmental concerns the State had failed to strike a fair balance between their interests and those of the community. 126. In particular, for the period of more than twelve years since the entry of the Convention into force with respect to Ukraine, the State authorities have failed either to bring the pollution levels under control or to resettle the applicants into a safer area. 127. While some measures in respect of mitigating the applicants'hardship were taken at various times, they were inconsistent and insufficient to change the applicants'overall situation as well as marked by prohibitive delays. 128. In particular, it was only in 2009 that the hamlet was provided with a centralised aqueduct. Until then drinking water, which was not available at all before 2003, was brought in small quantities by trucks and tractors at irregular intervals, sometimes as long as several months in winter. On several occasions the State authorities attempted to penalise the mine and the factory management for their failures to ensure safer pollution levels, but these punishments were negligible or remained unenforced ( such as the decision to suspend operation of the mine) and did not bring about any subsequent improvements. 129. The applicants further submitted that, as regards their resettlement, the 1994 decision to this end was never officially revoked, remained in force and was confirmed in 2000 by the Ecological Safety Commission. The subsequent court decisions disregarding it were therefore unlawful. Moreover, in deciding that the applicants no longer lived in the factory buffer zone, the judicial authorities relied on its prospective plan for buffer zone management, envisioning a number of measures to ensure that living outside the 300-metre zone actually would become safe, including downsizing of the spoil heap to 50 metres and hydro-insulating it. However, as the zone management measures had remained unenforced, the applicants continued to live in an environmentally unsafe area. 130. Moreover, the Dubetska-Nayda family's house was also located within the mine's buffer zone, which was confirmed by the judicial authorities in a final and binding decision of 26 December 2005 ordering this family's resettlement. 131. Further, significant delays marked consideration of the applicants'claims by domestic judicial authorities. On many occasions the trial court failed to inform the applicants of hearing dates or unreasonably postponed hearings on account of defendants'absences. 132. Finally, even though the Dubetska-Nayda family succeeded in obtaining a resettlement judgment, its effect was set at naught, as for some five years now it has remained unenforced. The prospects for its enforcement within foreseeable future were unpromising, regard being had, in particular, to the entry into force of the Law of Ukraine “On Measures to Ensure the Stable Operation of Fuel and Energy Sector Enterprises”, which stalled the possibility of recovering debt from the Vizeyska mine. 133. In sum, the applicants submitted that the State authorities had failed to act diligently and in good time in addressing their problems caused by pollution from the mine and the factory. ( ii ) The Government 134. The Government disagreed. They submitted that they had done everything in their power to ensure that people living near the mine and the factory, whose operation was admittedly connected with some environmental risks, were least affected by them. 135. In particular, the State put in place a legislative framework to regulate the operation of industrial polluters, including the establishment of safe emission levels and buffer zones. It has kept a constant watch on compliance with pollution safety standards by the mine and the factory and, in the event of occasional failures, the management was promptly penalised and the problems addressed. As a result, within 300 metres of the factory the levels of pollution were actually usually within the limits statutorily recognised as safe. This fact, confirmed by rigorous empirical monitoring, enabled scientific substantiation of the 300-metre buffer zone plan around the factory. A plan for the mine was likewise developed, however, in view of the mine's eventual closure there was no need to approve it or put it in place. 136. The Government further submitted that, as regards the applicants'resettlement claims, neither family had actually suffered damage or risk of damage from pollution such as to warrant their resettlement. As the 1994 decision, which had expired by 1997 in view of the economic challenges downsizing the factory's production levels instead of their anticipated increase, at no point in time from the entry of the Convention into force with respect to Ukraine to the present was the State responsible for the Gavrylyuk-Vakiv family's resettlement, as that family lived outside both buffer zones. 137. As regards the Dubetska-Nayda family, the State was obliged to resettle them on statutory grounds by the Chervonograd Court's decision of 26 December 2005. While the State's obligation to enforce this judgment was not in dispute, delays were caused by the severe financial problems of the debtor mine as well as the mining sector nationwide. The mine was unprofitable and owed substantial amounts to various creditors, including salary arrears to its employees. It was therefore unable to pay its debts and was subject to liquidation. Attempting to tackle the nationwide critical situation in the fuel and energy sector, the State was forced to enact the Law “On Measures to Ensure the Stable Operation of Fuel and Energy Sector Enterprises”, suspending or restructuring debts of the enterprises in the industry. Although it was not clear when the judgment would be enforced, funds were being sought and provision of the family with housing had been included in the list of measures previewed in the course of the liquidation. 138. In any event, both applicant families were given a judicial forum to handle their resettlement complaints. In so far as they complained that their court proceedings were lengthy, the delays were caused by the complexity of the subject and the search for the comprehensive evidence necessary to substantiate a reasoned and fair decision. In addition, some adjournments were on account of the applicants'failures to appear. 139. Overall, the State, which was facing a complex task of balancing between environmental and economic concerns relating to the mine and the factory operation, had duly considered the applicants'interests against those of the community in addressing them. (b) The Court's assessment ( i ) The Court's jurisprudence 140. The Court reiterates that the principles applicable to an assessment of the State's responsibility under Article 8 of the Convention in environmental cases are broadly similar regardless of whether the case is analysed in terms of a direct interference or a positive duty to regulate private activities (see Hatton and Others v. the United Kingdom [GC], no. 36022/97, § 98, ECHR 2003 ‑ VIII, and Fadeyeva, cited above, §§ 89 and 94 ). 141. In cases involving environmental issues, the State must be allowed a wide margin of appreciation and be left a choice between different ways and means of meeting its obligations. The ultimate question before the Court is, however, whether a State has succeeded in striking a fair balance between the competing interests of the individuals affected and the community as a whole (see Hatton and Others, cited above, § § 100, 119 and 123 ). In making such an assessment all the factors, including domestic legality, must be analysed in the context of a particular case (see ibid., § 120, and Fadeyeva, cited above, §§ 96-97 ). 142. Where the complaints relate to State policy with respect to industrial polluters, as in the present case, it remains open to the Court to review the merits of the respective decisions and conclude that there has been a manifest error. However, the complexity of the issues involved with regard to environmental policymaking renders the Court's role primarily a subsidiary one. It must first examine whether the decision-making process was fair, and only in exceptional circumstances may it go beyond this line and revise the material conclusions of the domestic authorities (see Fadeyeva, cited above, § 105 ). 143. In scrutinising the procedures at issue, the Court will examine whether the authorities conducted sufficient studies to evaluate the risks of a potentially hazardous activity (see Hatton and Others, cited above, § 128, and Giacomelli v. Italy, no. 59909/00, § 86, ECHR 2006 ‑ XII ), whether, on the basis of the information available, they have developed an adequate policy vis-à-vis polluters and whether all necessary measures have been taken to enforce this policy in good time (see Ledyayeva and Others, cited above, § 104, and Giacomelli, cited above, §§ 92 -9 3, ECHR 2006 ‑ ... ). The Court will likewise examine to what extent the individuals affected by the policy at issue were able to contribute to the decision-making, including access to the relevant information and ability to challenge the authorities'decisions in an effective way (see, mutatis mutandis, Guerra and Others v. Italy, judgment of 19 February 1998, Reports 1998-I, p. 228, § 60; Hatton and Others, cited above, § 127; and Taşkın and Others, cited above, §119 ). 144. As the Convention is intended to protect effective rights, not illusory ones, a fair balance between the various interests at stake may be upset not only where the regulations to protect the guaranteed rights are lacking, but also where they are not duly complied with (see Moreno Gómez v. Spain, no. 4143/02, § § 56 and 61, ECHR 2004 ‑ X). The procedural safeguards available to the applicant may be rendered inoperative and the State may be found liable under the Convention where a decision-making procedure is unjustifiably lengthy or where a decision taken as a result remains for an important period unenforced (see Taşkın and Others, cited above, §§ 124-25). 145. Overall, the onus is on the State to justify, using detailed and rigorous data, a situation in which certain individuals bear a heavy burden on behalf of the rest of the community (see Fadeyeva, cited above, § 128). ( ii ) Assessment of the facts in the present case 146. The Court remarks that the authorities contemplated and conceived a number of measures aimed at minimising the harmful effects of the mine and the factory operation on the applicants'households. It should be noted, for instance, that the quality of the legislative framework concerning industrial pollution is not in dispute between the parties in the present case. Further, as suggested by the Government, the authorities regularly monitored the levels of actual pollution and designed various measures to minimise them, including imposing penalties on the mine and factory management for breaches and eventual development of a plan for maintenance of the factory buffer zone. In addition, the applicants were promised compensation for damage caused by soil subsidence and water was brought in at State expense. No later than 2009 a centralised aqueduct was built, which should relieve the applicants of the burdens associated with accessing drinking- quality water, a major issue raised in their application. Finally, as mentioned above, on numerous occasions the authorities considered resettling the applicants as a way of providing an effective solution to their environmental hardship. 147. Notwithstanding the effort, for more than twelve years the State authorities have not been able to put in place an effective solution for the applicants'personal situation, which throughout this period has remained virtually the same. 148. It is noted that on the date of the Convention's entry into force (11 September 1997) the applicants were living in close proximity to two major industrial polluters, which adversely and substantially affected their daily life. It appears that in order to fulfil their Convention obligations, the State authorities, who owned these polluters, contemplated two major policy choices vis-à-vis the applicants'situation – either to facilitate their relocation to a safer area or to mitigate the pollution effects in some way. 149. Yet in 1994, before the Convention's entry into force, the Sokalskyy Executive Committee made the choice in favour of relocation. In the following period, however, the Government did not act promptly and consistently and did not back up this decision with the necessary resources to have it enforced. While according to the Government's observations the 1994 decision automatically lost its legal power by 1997 in view of the factory downsizing, the applicants were never officially informed of this, much less given a reference to the legal provision on the basis of which the decision at issue could have automatically lost its effect, in particular, in the absence of a new factory buffer zone management plan. Moreover, it appears that in April 2000 the 1994 decision was backed up by that of the Ecological Safety Commission, resolving to solicit State funding for the resettlement of eighteen families from the factory buffer zone. While the names of the families apparently remained unlisted, their number – eighteen - was the same as that mentioned in the 1994 decision. The Court therefore finds that the applicants could have reasonably expected to be among them. It was not until 21 June 2004 for the Gavrylyuk-Vakiv family and 26 December 2005 for the Dubetska-Nayda family that the applicants were formally declared to be living outside the prospective factory buffer zone and not entitled to relocation at State expense. It was also only on 26 December 2005 that the State authorities acknowledged their obligation under domestic law to resettle the Dubetska-Nayda family from the mine spoil heap buffer zone. The judicial proceedings, which lasted some three and a half years at one level of jurisdiction for the Dubetska-Nayda family and a little over five years at three levels of jurisdiction for the Gavrylyuk-Vakiv family, were marked by certain delays, in particular, on account of some significant intervals between hearings. Next, the decision given in the Dubetska-Nayda family's favour did not change the family's situation, as throughout the next five years and until now it has not been funded. Consequently, the Court remarks that for more than twelve years from the Convention's entry into force and up to now little or nothing has been done to help the applicants to move to a safer area. 150. The Court considers that when it comes to the wide margin of appreciation available to the States in context of their environmental obligations under Article 8 of the Convention, it would be going too far to establish an applicant's general right to free new housing at the State's expense ( see Fadeyeva, cited above, § 133 ). The applicants'Article 8 complaints could also be remedied by duly addressing the environmental hazards. 151. In the meantime, the Government's approach to tackling pollution in the present case has also been marked by numerous delays and inconsistent enforcement. A major measure contemplated by the Government in this regard during the period in question concerned the development of scientifically justified buffer zone management plans for the mine and the factory. This measure appears to have been mandatory under the applicable law, as at various times the public health authorities imposed sanctions on the facilities'management for failures to implement it, going as far as the suspension of their operating licences (see paragraphs 32 and 35 above). However, these suspensions apparently remained unenforced and neither the mine nor the factory has put in place a valid functioning buffer zone management plan as yet. 152. Eight years since the entry of the Convention into force, in 2005, the factory had such plan developed. When dismissing the applicants'claims against the factory for resettlement, the judicial authorities pointed out that the applicants'rights should be duly protected by this plan, in particular, in view of the anticipated downsizing of the spoil heap and its hydro-insulation. However, these measures, envisioned by the plan as necessary in order to render the factory's operation harmless to the area outside the buffer zone, have still not been enforced more than five years later (see paragraph 38 above). There also appear to have been, at least until the launch of the aqueduct no later than in 2009, delays in supplying potable water to the hamlet, which resulted in considerable difficulties for the applicants. The applicants cannot therefore be said to have been duly protected from the environmental risks emanating from the factory operation. 153. As regards the mine, in 2005 it went into liquidation without the zone management plan ever being finalised. It is unclear whether the mine has in fact ceased to operate at the present time. It appears, however, that the applicants in any event continue to be affected by its presence, in particular as they have not been compensated for damage caused by soil subsidence. In addition, the Dubetska-Nayda family lives within 100 metres of the mine's spoil heap, which needs environmental management regardless of whether it is still in use. 154. In sum, it appears that during the entire period taken into consideration both the mine and the factory have functioned not in compliance with the applicable domestic environmental regulations and the Government have failed either to facilitate the applicants'relocation or to put in place a functioning policy to protect them from environmental risks associated with continuing to live within their immediate proximity. 155. The Court appreciates that tackling environmental concerns associated with the operation of two major industrial polluters, which had apparently been malfunctioning from the start and piling up waste for over fifty years, was a complex task which required time and considerable resources, the more so in the context of these facilities'low profitability and nationwide economic difficulties, to which the Government have referred. At the same time, the Court notes that these industrial facilities were located in a rural area and the applicants belonged to a very small group of people (apparently not more than two dozen families) who lived nearby and were most seriously affected by pollution. In these circumstances the Government has failed to adduce sufficient explanation for their failure to either resettle the applicants or find some other kind of effective solution for their individual burden for more than twelve years. 156. There has therefore been a breach of Article 8 of the Convention in the present case. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 157. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 1. Pecuniary damage 158. The applicants claimed 28,000 euros (EUR) in respect of pecuniary damage. They alleged that this sum represented the purchase price of two comparable houses (one for each of the two applicant families) in the neighbouring area, not affected by pollution. They argued that they were entitled to this amount in damages, as their houses had lost market value and could not be sold on account of their unfavourable location. 159. The Government submitted that these claims were exorbitant and unsubstantiated. 160. In considering the applicants'claim for pecuniary damage, the Court would state that the violation complained of by the applicants is of a continuing nature. Throughout the period under consideration the applicants have been living in their houses and have never been deprived of them. Although during this time their private life was adversely affected by operation of two industrial facilities, nothing indicates that they incurred any expenses in this connection. Therefore, the applicants failed to substantiate any material loss. 161. In so far as they allege that their houses have lost market value, the Court reiterates that the present application was lodged and examined under Article 8 of the Convention and not under Article 1 of Protocol no. 1, which protects property rights. There is therefore no causal link between the violation found and the loss of market value alleged. 162. As regards future measures to be adopted by the Government in order to comply with the Court's finding of a violation of Article 8 of the Convention in the present case, the Court reiterates that the State obligation to enforce the final judgment in respect of the Dubetska-Nayda family is not in dispute. As regards the Gavrylyuk-Vakiv family, their resettlement to an ecologically safe area would be only one of many possible solutions. In any event, according to Article 41 of the Convention, by finding a violation of Article 8 in the present case the Court has established the Government's obligation to take appropriate measures to remedy the applicants'individual situation. 2. Non-pecuniary damage 163. In addition, the Dubetska-Nayda family claimed EUR 32,000 in non-pecuniary damage and the Gavrylyuk-Vakiv family claimed EUR 33,000 in this respect. The applicants alleged that these amounts represented compensation for their physical suffering in connection with living in an unsafe environment, as well as psychological distress on account of disruption of their daily routine, complications in interpersonal communication and frustration with making prolonged unsuccessful efforts to obtain redress from the public authorities. 164. The Government submitted that the applicants should not be awarded any compensation. 165. The Court is prepared to accept that the applicants'prolonged exposure to industrial pollution caused them much inconvenience, psychological distress and even a degree of physical suffering, and that they might well feel frustration on account of the authorities'response to their hardship – this is clear from the grounds on which the Court found a violation of Article 8. Taking into account various relevant factors, including the duration of the situation complained of, and making an assessment on an equitable basis, the Court awards the applicants the amounts claimed in respect of non-pecuniary damage in full. B. Costs and expenses 166. The applicants did not submit any claim under this head. The Court therefore makes no award. C. Default interest 167. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 8 of the Convention. It observed in particular that the Ukrainian authorities had been aware of the adverse environmental effects of the mine and factory but had neither resettled the applicants, nor found a different solution to diminish the pollution to levels that were not harmful to people living in the vicinity of the industrial facilities. Moreover, despite attempts to penalise the factory director and to order and bring about the applicants’ resettlement, and notwithstanding that a centralised aqueduct was built by 2009 ensuring sufficient supply of fresh drinking water to the applicants, for 12 years the authorities had not found an effective solution to the applicants’ situation. The Court also held that by finding of a violation of Article 8 of the Convention it established the Ukrainian Government’s obligation to take appropriate measures to remedy the applicants’ situation. |
844 | null | II. RELEVANT DOMESTIC LAW A. Right to respect for private life and correspondence 15. The Constitution guarantees to everyone the right to respect for his private life, personal and family secrets and the right to defend his honour and reputation (Article 23 § 1). It further guarantees the right to respect for correspondence and telephone, postal, telegraph and other communications. That right may be restricted only on the basis of a court order ( Article 23 § 2). 16. The Constitution also stipulates that it is not permissible to collect, store, use or disseminate information about a person ’ s private life without his consent. State and municipal authorities must ensure that any person has access to documents and materials affecting his rights and freedoms, except where the law provides otherwise (Article 24). 17. The Communications Act of 7 July 2003 (no. 126 ‑ FZ) guarantees the privacy of postal, telegraphic and other forms of communication transmitted by means of telecommunications networks or mail services. Restrictions on the privacy of communications are permissible only in cases specified in federal laws (section 63(1)). The interception of communications is subject to prior judicial authorisation, except in cases specified in federal laws (section 63(3)). 18. On 2 October 2003, in its decision no. 345-O, the Constitutional Court held that the right to privacy of telephone communications covered all data transmitted, stored or discovered by means of telephone equipment, including non-content - based data, such as information about the incoming and outgoing connections of a specified subscriber. The monitoring of such data was also subject to prior judicial authorisation. B. Responsibility for breach of privacy 19. The unauthorised collection or dissemination of information about the private or family life of a person without his consent, where it is committed out of mercenary or other personal interest and is damaging to the rights and lawful interests of citizens, is punishable by a fine, correctional labour or a custodial sentence of up to four months. The same actions committed by an official using his position are punishable by a fine, a prohibition on occupying certain positions or a custodial sentence of up to six months (Article 137 of the Criminal Code). 20. Any breach of citizens ’ right to the privacy of their postal, telegraphic, telephone or other forms of communication is punishable by a fine or correctional labour. The same act committed by an official using his position is punishable by a fine, a prohibition on occupying certain positions or a custodial sentence of up to four months (Article 138 of the Criminal Code). 21. Abuse of power by an official, where it is committed out of mercenary or other personal interest and entails a substantial violation of an individual ’ s or a legal entity ’ s rights and lawful interests, is punishable by a fine, a prohibition on occupying certain posts or engaging in certain activities for a period of up to five years, correctional labour for a period of up to four years or imprisonment for a period ranging from four months to four years (Article 285 § 1 of the Criminal Code). 22. Actions by a public official which clearly exceed his authority and entail a substantial violation of an individual ’ s or a legal entity ’ s rights and lawful interests, are punishable by a fine, a prohibition on occupying certain posts or engaging in certain activities for a period of up to five years, correctional labour for a period of up to four years or imprisonment for a period ranging from four months to four years (Article 286 § 1 of the Criminal Code). 23. Ruling no. 19 of 16 October 2009 by the Plenary Supreme Court provides that for the purposes of Articles 285 and 286 of the Criminal Code “a substantial violation of an individual ’ s or a legal entity ’ s rights and lawful interests” means a violation of the rights and freedoms guaranteed by the generally established principles and provisions of international law and the Constitution of the Russian Federation – such as the right to respect for a person ’ s honour and dignity, private or family life, correspondence, telephone, postal, telegraph and other communications, the inviolability of the home, etc. In assessing whether the violation was “substantial” in respect of a legal entity, it is necessary to take into account the extent of the damage sustained as a result of the unlawful act, the nature and the amount of the pecuniary damage, the number of persons affected and the gravity of the physical, pecuniary or non-pecuniary damage inflicted on them (paragraph 18 (2)). 24. Criminal proceedings are opened if there are sufficient facts showing that a criminal offence has been committed (Article 140 § 2 of the Code of Criminal Procedure). C. General provisions on interception of communications 25. The interception of communications is governed by the Operational-Search Activities Act of 12 August 1995 (no. 144 ‑ FZ – “the OSAA” ), applicable to the interception of communications both in the framework of criminal proceedings and outside such framework; and the Code of Criminal Procedure of 18 December 2001 (no. 174-FZ, in force since 1 July 2002 – “ the CCrP ” ), applicable only to the interception of communications in the framework of criminal proceedings. 26. The aims of operational-search activities are ( a ) the detection, prevention, suppression and investigation of criminal offences and the identification of persons conspiring to commit, committing, or having committed a criminal offence; ( b ) the tracing of fugitives from justice and missing persons; ( c ) obtaining information about events or activities endangering the national, military, economic or ecological security of the Russian Federation (section 2 of the OSAA ). On 25 December 2008 that section was amended and a further aim, that of obtaining information about property subject to confiscation, was added. 27. State officials and agencies performing operational-search activities must show respect for the private and family life, home and correspondence of citizens. It is prohibited to perform operational-search activities to achieve aims or objectives other than those specified in the Act (section 5(1) and (2) of the OSAA ). 28. State officials and agencies may not ( a ) conduct operational-search activities in the interest of political parties, non-profit or religious organisations; ( b ) conduct secret operational-search activities in respect of federal, regional or municipal authorities, political parties, or non-profit or religious organisations with the aim of influencing their activities or decisions; ( c ) disclose to anyone the data collected in the course of the operational-search activities if those data concern the private or family life of citizens or damage their reputation or good name, except in cases specified in federal laws; ( d ) incite, induce or entrap anyone to commit a criminal offence; ( e ) or falsify the results of operational-search activities (section 5(8) of the OSAA ). 29. Operational-search activities include, inter alia, the interception of postal, telegraphic, telephone and other forms of communication and the collection of data from technical channels of communication. The Act stipulates that audio and video - recording, photography, filming and other technical means may be used during operational-search activities, provided that they are not harmful to the life or health of those involved or to the environment. Operational-search activities involving the interception of postal, telegraphic, telephone and other forms of communication and collection of data from technical channels of communication using equipment installed by communications service providers is carried out by technical means by the FSB and the agencies of the Ministry of the Interior, in accordance with decisions and agreements signed between the agencies involved (section 6 of the OSAA ). 30. Presidential Decree no. 891 of 1 September 1995 provides that the interception of postal, telegraphic or other communications is to be carried out by the FSB in the interests and on behalf of all law-enforcement agencies (paragraph 1). In situations where the FSB does not have available the necessary technical equipment, interceptions may be carried out by the agencies of the Ministry of the Interior in the interests and on behalf of all law-enforcement agencies (paragraph 2). Similar provisions are contained in paragraphs 2 and 3 of Order no. 538, issued by the government on 27 August 2005. D. Situations that may give rise to interception of communications 31. Operational-search activities involving interference with the constitutional right to the privacy of postal, telegraphic and other communications transmitted by means of a telecommunications network or mail services, or within the privacy of the home, may be conducted following the receipt of information ( a ) that a criminal offence has been committed, is being committed, or is being plotted; ( b ) about persons conspiring to commit, or committing, or having committed a criminal offence; or ( c ) about events or activities endangering the national, military, economic or ecological security of the Russian Federation ( section 8(2) of the OSAA ). 32. The OSAA provides that interception of telephone and other communications may be authorised only in cases where a person is suspected of, or charged with, a criminal offence of medium severity, a serious offence or an especially serious criminal offence, or may have information about such an offence (section 8(4) of the OSAA ). The CCrP also provides that interception of telephone and other communications of a suspect, an accused or other person may be authorised if there are reasons to believe that they may contain information relevant for the criminal case in respect of a criminal offence of medium severity, a serious offence or an especially serious criminal offence (Article 186 § 1 of the CCrP ). 33. Article 15 of the Criminal Code provides that “offences of medium severity” are premeditated offences for which the Criminal Code prescribes a maximum penalty of between three and five years ’ imprisonment and unpremeditated offences for which the Criminal Code prescribes a maximum penalty of more than three years ’ imprisonment. “Serious offences” are premeditated offences for which the Criminal Code prescribes a maximum penalty of between five and ten years ’ imprisonment. “Especially serious offences” are premeditated offences for which the Code prescribes a maximum penalty of more than ten years ’ imprisonment or a harsher penalty. E. Authorisation procedure and time-limits 1. Operational-Search Activities Act 34. Operational-search measures involving interference with the constitutional right to the privacy of postal, telegraphic and other communications transmitted by means of a telecommunications network or mail services or within the privacy of the home – such as an inspection of premises or buildings, an interception of postal, telegraphic, telephone and other forms of communication or a collection of data from technical channels of communication – require prior judicial authorisation (section 8(2) of the OSAA ). 35. In urgent cases where there is an immediate danger that a serious or especially serious offence may be committed or where there is information about events or activities endangering national, military, economic or ecological security, the operational-search measures specified in section 8(2) may be conducted without prior judicial authorisation. In such cases a judge must be informed within twenty-four hours of the commencement of the operational-search activities. If judicial authorisation has not been obtained within forty-eight hours of the commencement of the operational-search activities, those activities must be stopped immediately (section 8(3) of the OSAA ). 36. The examination of requests to take measures involving interference with the constitutional right to the privacy of correspondence and telephone, postal, telegraphic and other communications transmitted by means of telecommunications networks or mail services, or with the right to privacy of the home, falls within the competence of a court in the locality where the requested measure is to be carried out or in the locality where the requesting body is located. The request must be examined immediately by a single judge (section 9(1) of the OSAA ). 37. The judge takes a decision on the basis of a reasoned request by the head of one of the agencies competent to perform operational-search activities. Relevant supporting materials, except materials containing information about undercover agents or police informers or about the organisation and tactics of operational-search measures, may also be produced at the judge ’ s request (section 9(2) and (3) of the OSAA ). 38. The judge examining the request shall decide whether to authorise measures involving interference with the above-mentioned constitutional rights, or to refuse authorisation, giving reasons. The judge must specify the period of time for which the authorisation is granted, which shall not normally exceed six months. If necessary, the judge may extend the authorised period after a fresh examination of all the relevant materials (section 9(4) and (5) of the OSAA ). 39. The judicial decision authorising operational-search activities and the materials that served as a basis for that decision must be held in the exclusive possession of the State agency performing the operational-search activities (section 12(3) of the OSAA ). 40. On 14 July 1998 the Constitutional Court, in its decision no. 86-O, dismissed as inadmissible a request for a review of the constitutionality of certain provisions of the OSAA. It held, in particular, that a judge was to authorise investigative measures involving interference with constitutional rights only if he was persuaded that such measures were lawful, necessary and justified, that is, compatible with all the requirements of the OSAA. The burden of proof was on the requesting State agency to show the necessity of the measures. Supporting materials were to be produced to the judge at his request. Given that some of those materials might contain State secrets, only judges with the necessary level of security clearance could examine authorisation requests. Further, relying on the need to keep the surveillance measures secret, the Constitutional Court held that the principles of a public hearing and adversarial proceedings were not applicable to the authorisation proceedings. The fact that the person concerned was not entitled to participate in the authorisation proceedings, to be informed of the decision taken or to appeal to a higher court did not therefore violate that person ’ s constitutional rights. 41. On 2 October 2003 the Constitutional Court, in its decisionno. 345-O, held that the judge had an obligation to examine the materials submitted to him in support of a request for interception thoroughly and carefully. If the request was insufficiently substantiated, the judge could request additional information. 42. Further, on 8 February 2007 the Constitutional Court, in its decision no. 1-O, dismissed as inadmissible a request for a review of the constitutionality of section 9 of the OSAA. It found that before granting authorisation to perform operational-search measures the judge had an obligation to verify the grounds for that measure. The judicial decision authorising operational-search measures was to contain reasons and to refer to specific grounds for suspecting that a criminal offence had been committed, was being committed, or was being plotted or that activities endangering national, military, economic or ecological security were being carried out, and that the person in respect of whom operational-search measures were requested was involved in those criminal or otherwise dangerous activities. 43. On 15 July 2008 the Constitutional Court, in its decision no. 460 ‑ O ‑ O, dismissed as inadmissible a request for a review of the constitutionality of sections 5, 11 and 12 of the OSAA. The Constitutional Court found that a person whose communications had been intercepted was entitled to lodge a supervisory - review complaint against the judicial decision authorising the interception. The fact that he had no copy of that decision did not prevent him from lodging the supervisory-review complaint, because the relevant court could request it from the competent authorities. 2. Code of Criminal Procedure 44. Investigative measures involving a search in a person ’ s home or interception of his telephone calls and other communications are subject to prior judicial authorisation. A request to search a person ’ s home or intercept his communications must be submitted by an investigator with a prosecutor ’ s approval and must be examined by a single judge within twenty-four hours. The prosecutor and the investigator are entitled to attend. The judge examining the request shall decide whether to authorise the requested measure, or to refuse authorisation, giving reasons (Article 165 of the CCrP ). 45. A court may grant authorisation to intercept the communications of a suspect, an accused or other persons if there are reasons to believe that information relevant to the criminal case may be discussed ( Article 186 § 1 of the CCrP ). 46. A request for authorisation to intercept communications must clearly mention ( a ) the criminal case to which the request is related; ( b ) the grounds for conducting the requested measures; ( c ) the family name, the first name and the patronymic of the person whose communications are to be intercepted; ( d ) the duration of the requested measure; and ( e ) the State agency that will perform the interception (Article 186 § 3 of the CCrP ) 47. The judicial decision authorising interception of communications must be forwarded by the investigator to the State agency charged with its implementation. The interception of communications may be authorised for a period not exceeding six months, and is discontinued by the investigator when it is no longer necessary. It must in any case be discontinued when the investigation has been completed (Article 186 §§ 4 and 5 of the CCrP ). 48. A court may also authorise the monitoring of communications data relating to a person ’ s telephone or wireless connections if there are sufficient reasons to believe that such data may be relevant to a criminal case. A request for authorisation must contain the same elements referred to in paragraph 46 above. A copy of the judicial decision authorising the monitoring of a person ’ s communications-related data is forwarded by the investigator to the relevant communications service provider, which must then submit the requested data to the investigator on a regular basis, and at least once a week. The monitoring of communications data may be authorised for a period not exceeding six months, and is discontinued by the investigator when it is no longer necessary. It must in any case be discontinued when the investigation has been completed (Article 186.1 of the CCrP, added on 1 July 2010). F. Storage, use and destruction of collected data 1. Storage of collected data 49. Section 10 of the OSAA stipulates that law-enforcement agencies performing operational-search activities may create and use databases or open personal files. The personal file must be closed when the aims specified in section 2 of the Act have been achieved or if it has been established that it is impossible to achieve them. 50. In its decision of 14 July 1998 ( see paragraph 40 above), the Constitutional Court noted, as regards the possibility provided by section 10 for law-enforcement agencies conducting operational-search activities to create databases or open personal files, that only the data relating to the prevention or investigation of criminal offences could be entered into such databases or personal files. Given that criminal activities did not fall within the sphere of private life, collection of information about such criminal activities did not interfere with the right to respect for private life. If information about a person ’ s criminal activities entered into a file was not subsequently confirmed, the personal file had to be closed. 51. Records of intercepted telephone and other communications must be sealed and stored under conditions excluding any risk of their being listened to or copied by unauthorised persons (section 8(4) of the OSAA ). 52. Information about the facilities used in operational-search activities, the methods employed, the officials involved and the data collected constitutes a State secret. It may be declassified only pursuant to a special decision of the head of the State agency performing the operational-search activities (section 12(1) of the OSAA and section 5(4) of Law no. 5485-I of 21 July 1993 – “ the State Secrets Act ” ). 53. Materials containing State secrets should be clearly marked with the following information: degree of secrecy, the State agency which has taken the decision to classify them, registration number, and the date or conditions for declassifying them (section 12 of the State Secrets Act). 2. Use of collected data and conditions for their disclosure 54. Information containing State secrets may be disclosed to another State authority, an organisation or an individual only subject to authorisation by the State authority which took the decision to classify that information. It may be disclosed only to State authorities or organisations holding a special license or to individuals with the required level of security clearance. The State authority or organisation to which classified information is disclosed must ensure that that information is adequately protected. The head of such State authority or organisation is personally responsible for protecting the classified information against unauthorised access or disclosure (sections 16 and 17 of the State Secrets Act). 55. A license to access State secrets may be issued to an organisation or a company only after it has been confirmed that it has specific internal departments charged with data protection, that its employees are qualified to work with classified information and that it uses approved systems of data protection (section 27 of the State Secrets Act). 56. Security clearance is granted only to those State officials who genuinely need it for the performance of their duties. It is also granted to judges for the period of their service and to counsel participating in a criminal case if the case file contains materials involving State secrets. Anyone who has been granted security clearance must give a written undertaking not to disclose the classified information entrusted to him (paragraphs 7, 11 and 21 of Regulation no. 63 of 6 February 2010 of the government of the Russian Federation). 57. The head of the State authority or organisation in possession of information containing State secrets is responsible for giving State officials and other authorised persons access to that information. He must ensure that only the information that the recipient needs for the performance of his duties is disclosed (section 25 of the State Secrets Act). 58. If the data collected in the course of operational-search activities contain information about the commission of a criminal offence, that information, together with all the necessary supporting material such as photographs and audio or video - recordings, must be sent to the competent investigation authorities or a court. If the information was obtained as a result of operational-search measures involving interference with the right to the privacy of postal, telegraphic and other communications transmitted by means of a telecommunications network or mail services, or with the privacy of the home, it must be sent to the investigation or prosecution authorities together with the judicial decision authorising those measures.The information must be transmitted in accordance with the special procedure for handling classified information, unless the State agency performing operational-search activities has decided to declassify it (paragraphs 1, 12, 14 and 16 of Order no. 776/703/509/507/1820/42/535/398/68 of 27 September 2013 by the Ministry of the Interior). 59. If the person whose telephone or other communications were intercepted is charged with a criminal offence, the records are to be given to the investigator and attached to the criminal case file. Their further use and storage are governed by criminal procedural law (section 8(5) of the OSAA ). 60. Data collected as a result of operational-search activities may be used for the preparation and conduct of the investigation and court proceedings and used as evidence in criminal proceedings in accordance with the legal provisions governing the collection, evaluation and assessment of evidence. The decision to transfer the collected data to other law-enforcement agencies or to a court is taken by the head of the State agency performing the operational-search activities (section 11 of the OSAA ). 61. If the interception was authorised in the framework of criminal proceedings, the investigator may obtain the records from the agency conducting it at any time during the authorised period of interception. The records must be sealed and must be accompanied by a cover letter indicating the dates and time of the beginning and end of the recorded communications, as well as the technical means used to intercept them. Recordings must be listened to by the investigator in the presence of attesting witnesses, an expert ( where necessary ) and the persons whose communications have been intercepted. The investigator must draw up an official report containing a verbatim transcription of those parts of the recorded communications that are relevant to the criminal case ( Article 186 §§ 6 and 7 of the CCrP ). On 4 March 2013 Article 186 § 7 was amended and the requirement of the presence of attesting witnesses was deleted. 62. Recordings and communications-related data that have been collected are to be attached to the criminal case file. They must be sealed and stored under conditions excluding any risk of their being listened to or copied by unauthorised persons ( Article 186 § 8 of the CCrP and Article 186.1, added on 1 July 2010). 63. The results of operational-search activities involving a restriction on the right to respect for correspondence, telephone, postal, telegraph or other communications may be used as evidence in criminal proceedings only if they have been obtained pursuant to a court order and if the operational-search activities have been carried out in accordance with the law on criminal procedure (paragraph 14 of Ruling no. 8 of 31 October 1995 by the Plenary Supreme Court of the Russian Federation). 64. It is prohibited to use in evidence data obtained as a result of operational-search activities that do not comply with the admissibility-of-evidence requirements of the CCrP (Article 89 of the CCrP ). Evidence obtained in breach of the CCrP shall be inadmissible. Inadmissible evidence shall have no legal force and cannot be relied on as grounds for criminal charges or for proving any of the circumstances for which evidence is required in criminal proceedings. If a court decides to exclude evidence, that evidence shall have no legal force and cannot be relied on in a judgment or other judicial decision, or be examined or used during the trial (Articles 75 and 235 of the CCrP ). 3. Destruction of collected data 65. The data collected in the course of operational-search activities in respect of a person whose guilt has not been proved in accordance with the procedure prescribed by law must be stored for a year and then destroyed, unless those data are needed in the interests of the authority or of justice. Audio - recordings and other materials collected as a result of intercepting telephone or other communications must be stored for six months and then destroyed if the person has not been charged with a criminal offence. The judge who authorised the interception must be informed of the scheduled destruction three months in advance (section 5(7) of the OSAA ). 66. If the person has been charged with a criminal offence, at the end of the criminal proceedings the trial court takes a decision on the further storage or destruction of the data used in evidence. The destruction must be recorded in a report to be signed by the head of the investigation authority and included in the case file (Article 81 § 3 of the CCrP and paragraph 49 of Order no. 142 of 30 September 2011 of the Investigations Committee). G. Supervision of interception of communications 67. The heads of the agencies conducting operational-search activities are personally responsible for the lawfulness of all operational-search activities (section 22 of the OSAA ). 68. Overall supervision of operational-search activities is exercised by the President, Parliament and the government of the Russian Federation within the limits of their competence (section 20 of the OSAA ). 69. The Prosecutor General and competent lower-level prosecutors may also exercise supervision over operational-search activities. At the request of a competent prosecutor, the head of a State agency performing operational-search activities must produce operational-search materials, including personal files, information on the use of technical equipment, registration logs and internal instructions. Materials containing information about undercover agents or police informers may be disclosed to the prosecutor only with the agent ’ s or informer ’ s consent, except in cases of criminal proceedings against them. The head of a State agency may be held liable in accordance with the law for failure to comply with the prosecutor ’ s request. The prosecutor must ensure the protection of the data contained in the materials produced (section 21 of the OSAA ). 70. The Prosecutors ’ Office Act (Federal Law no. 2202-I of 17 January 1992) provides that the Prosecutor General is to be appointed or dismissed by the Federation Council (the upper house of Parliament) on proposal by the President (section 12). Lower-level prosecutors are to be appointed by the Prosecutor General after consultation with the regional executive authorities (section 13). To be appointed as a prosecutor the person must be a Russian citizen and must have a Russian law degree (section 40.1). 71. In addition to their prosecuting functions, prosecutors are responsible for supervising whether the administration of detention facilities, bailiffs ’ activities, operational-search activities and criminal investigations are in compliance with the Russian Constitution and Russian laws (section 1). Prosecutors also coordinate the activities of all law-enforcement authorities in combatting crime (section 8). 72. As regards supervision of operational-search activities, prosecutors may review whether measures taken in the course of operational-search activities are lawful and respectful of human rights (section 29). Prosecutors ’ orders made in the context of such supervision must be complied with within the time-limit set. Failure to comply may result in liability in accordance with the law (section 6). 73. Prosecutors may also examine complaints of breaches of the law and give a reasoned decision on each complaint. Such a decision does not prevent the complainant from bringing the same complaint before a court. If a prosecutor discovers a breach of the law, he must take measures to bring the responsible persons to account (section 10). 74. The Federal Security Service Act of 3 April 1995 (no. 40-FZ – “the FSB Act” ) provides that information about the security services ’ undercover agents, as well as about the tactics, methods and means used by them is outside the scope of supervision by prosecutors ( section 24). 75. The procedures for prosecutors ’ supervision of operational-search activities have been set out in Order no. 33, issued by the Prosecutor General ’ s Office on 15 February 2011. 76. Order no. 33 provides that a prosecutor may carry out routine inspections of agencies carrying out operational-search activities, as well as ad hoc inspections following a complaint by an individual or receipt of information about potential violations. Operational-search activities performed by the FSB in the sphere of counterintelligence may be inspected only following an individual complaint (paragraph 5 of Order no. 33). 77. During the inspection the prosecutor must verify compliance with the following requirements: – observance of citizens ’ constitutional rights, such as the right to respect for private and family life, home, correspondence, telephone, postal, telegraph and other communications; – that the measures taken in the course of operational-search activities are lawful and justified, including those measures that have been authorised by a court (paragraphs 4 and 6 of Order no. 33). 78. During the inspection the prosecutor must study the originals of the relevant operational-search materials, including personal files, information on the use of technical equipment, registration logs and internal instructions, and may request explanations from competent officials. The prosecutors must protect the sensitive data entrusted to them from unauthorised access or disclosure (paragraphs 9 and 12 of Order no. 33). 79. If a prosecutor identifies a breach of the law, he must request the official responsible for it to remedy the breach. He must also take measures to stop and remedy violations of citizens ’ rights and to bring those responsible to liability (paragraphs 9 and 10 of Order no. 33). A State official who refuses to comply with a prosecutor ’ s orders may be brought to account in accordance with the law (paragraph 11). 80. The prosecutors responsible for supervision of operational-search activities must submit six-monthly reports detailing the results of the inspections to the Prosecutor General ’ s Office (paragraph 15 of Order no. 33). A report form to be filled in by prosecutors is attached to Order no. 33. The form indicates that it is confidential. It contains two sections, both in table format. The first section concerns inspections carried out during the reference period and contains information about the number of inspections, number of files inspected and number of breaches detected. The second section concerns citizens ’ complaints and contains information about the number of complaints examined and granted. H. Access by individuals to data collected about them in the course of interception of communications 81. Russian law does not provide that a person whose communications are intercepted must be notified at any point. However, a person who is in possession of the facts of the operational-search measures to which he was subjected and whose guilt has not been proved in accordance with the procedure prescribed by law, that is, he has not been charged or the charges have been dropped on the ground that the alleged offence was not committed or that one or more elements of a criminal offence were missing, is entitled to receive information about the data collected in the course of the operational-search activities, to the extent compatible with the requirements of operational confidentiality ( конспирации ) and excluding data which could enable State secrets to be disclosed (section 5(4 ), (5) and ( 6) of the OSAA ). 82. In its decision of 14 July 1998 (cited in paragraph 40 above), the Constitutional Court noted that any person who was in possession of the facts of the operational-search measures to which he had been subjected was entitled to receive information about the data collected in the course of those activities, unless those data contained State secrets. Under section 12 of the OSAA, data collected in the course of operational-search activities – such as information about criminal offences and the persons involved in their commission – were a State secret. However, information about breaches of citizens ’ rights or unlawful acts on the part of the authorities could not be classified as a State secret and should be disclosed. Section 12 could not therefore serve as a basis for refusing access to information affecting a person ’ s rights, provided that such information did not concern the aims of, or the grounds for, the operational-search activities. In view of the above, the fact that, pursuant to the contested Act, a person was not entitled to be granted access to the entirety of the data collected about him did not constitute a violation of that person ’ s constitutional rights. III. RELEVANT INTERNATIONAL AND EUROPEAN INSTRUMENTS A. United Nations 139. Resolution no. 68/167, on The Right to Privacy in the Digital Age, adopted by the General Assembly on 18 December 2013, reads as follows: “The General Assembly, ... 4. Calls upon all States: ... ( c ) To review their procedures, practices and legislation regarding the surveillance of communications, their interception and the collection of personal data, including mass surveillance, interception and collection, with a view to upholding the right to privacy by ensuring the full and effective implementation of all their obligations under international human rights law; ( d ) To establish or maintain existing independent, effective domestic oversight mechanisms capable of ensuring transparency, as appropriate, and accountability for State surveillance of communications, their interception and the collection of personal data; ... ” B. Council of Europe 140. The Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data of 28 January 1981 (ETS 108) sets out standards for data protection in the sphere of automatic processing of personal data in the public and private sectors. The relevant parts read as follows. Article 8 – Additional safeguards for the data subject “ Any person shall be enabled: a. to establish the existence of an automated personal data file, its main purposes, as well as the identity and habitual residence or principal place of business of the controller of the file; b. to obtain at reasonable intervals and without excessive delay or expense confirmation of whether personal data relating to him are stored in the automated data file as well as communication to him of such data in an intelligible form; c. to obtain, as the case may be, rectification or erasure of such data if these have been processed contrary to the provisions of domestic law giving effect to the basic principles set out in Articles 5 and 6 of this Convention; d. to have a remedy if a request for confirmation or, as the case may be, communication, rectification or erasure as referred to in paragraphs b and c of this Article is not complied with. ” Article 9 – Exceptions and restrictions “1. No exception to the provisions of Articles 5, 6 and 8 of this Convention shall be allowed except within the limits defined in this Article. 2. Derogation from the provisions of Articles 5, 6 and 8 of this Convention shall be allowed when such derogation is provided for by the law of the Party and constitutes a necessary measure in a democratic society in the interests of: a. protecting State security, public safety, the monetary interests of the State or the suppression of criminal offences; b. protecting the data subject or the rights and freedoms of others. ... ” Article 10 – Sanctions and remedies “ Each Party undertakes to establish appropriate sanctions and remedies for violations of provisions of domestic law giving effect to the basic principles for data protection set out in this chapter.” 141. The above Convention was ratified by Russia on 15 May 2013 and came into force in respect of Russia on 1 September 2013. The instrument of ratification deposited by the Russian Federation on 15 May 2013 contains the following declaration. “The Russian Federation declares that in accordance with subparagraph ‘ a ’ of paragraph 2 of Article 3 of the Convention, it will not apply the Convention to personal data: ... ( b) falling under State secrecy in accordance with the legislation of the Russian Federation on State secrecy. The Russian Federation declares that in accordance with subparagraph ‘ c ’ of paragraph 2 of Article 3 of the Convention, it will apply the Convention to personal data which is not processed automatically, if the application of the Convention corresponds to the nature of the actions performed with the personal data without using automatic means. The Russian Federation declares that in accordance with subparagraph ‘ a ’ of paragraph 2 of Article 9 of the Convention, it retains the right to limit the right of the data subject to access personal data on himself for the purposes of protecting State security and public order.” 142. The Additional Protocol to the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data, regarding supervisory authorities and transborder data flows of 8 November 2001 (ETS 181), signed but not ratified by Russia, provides as follows: “Article 1 – Supervisory authorities “ 1. Each Party shall provide for one or more authorities to be responsible for ensuring compliance with the measures in its domestic law giving effect to the principles stated in Chapters II and III of the Convention and in this Protocol. 2. a. To this end, the said authorities shall have, in particular, powers of investigation and intervention, as well as the power to engage in legal proceedings or bring to the attention of the competent judicial authorities violations of provisions of domestic law giving effect to the principles mentioned in paragraph 1 of Article 1 of this Protocol. b. Each supervisory authority shall hear claims lodged by any person concerning the protection of his/her rights and fundamental freedoms with regard to the processing of personal data within its competence. 3. The supervisory authorities shall exercise their functions in complete independence. 4. Decisions of the supervisory authorities, which give rise to complaints, may be appealed against through the courts. ... ” 143. Recommendation No. R (87) 15 of the Council of Europe’s Committee of Ministers to member States regulating the use of personal data in the police sector, adopted on 17 September 1987, reads as follows. “1.1. Each member state should have an independent supervisory authority outside the police sector which should be responsible for ensuring respect for the principles contained in this recommendation. ... 2.1. The collection of personal data for police purposes should be limited to such as is necessary for the prevention of a real danger or the suppression of a specific criminal offence. Any exception to this provision should be the subject of specific national legislation. 2.2. Where data concerning an individual have been collected and stored without his knowledge, and unless the data are deleted, he should be informed, where practicable, that information is held about him as soon as the object of the police activities is no longer likely to be prejudiced. ... 3. 1. As far as possible, the storage of personal data for police purposes should be limited to accurate data and to such data as are necessary to allow police bodies to perform their lawful tasks within the framework of national law and their obligations arising from international law. ... 5.2 .i. ... Communication of data to other public bodies should only be permissible if, in a particular case: a. there exists a clear legal obligation or authorisation, or with the authorisation of the supervisory authority, or if b. these data are indispensable to the recipient to enable him to fulfil his own lawful task and provided that the aim of the collection or processing to be carried out by the recipient is not incompatible with the original processing, and the legal obligations of the communicating body are not contrary to this. 5.2 .ii. Furthermore, communication to other public bodies is exceptionally permissible if, in a particular case: a. the communication is undoubtedly in the interest of the data subject and either the data subject has consented or circumstances are such as to allow a clear presumption of such consent, or if b. the communication is necessary so as to prevent a serious and imminent danger. 5.3 .i. ... The communication of data to private parties should only be permissible if, in a particular case, there exists a clear legal obligation or authorisation, or with the authorisation of the supervisory authority. ... 6.4. Exercise of the rights [of the data subject] of access, rectification and erasure should only be restricted insofar as a restriction is indispensable for the performance of a legal task of the police or is necessary for the protection of the data subject or the rights and freedoms of others. ... 6.5. A refusal or a restriction of those rights should be reasoned in writing. It should only be possible to refuse to communicate the reasons insofar as this is indispensable for the performance of a legal task of the police or is necessary for the protection of the rights and freedoms of others. 6.6. Where access is refused, the data subject should be able to appeal to the supervisory authority or to another independent body which shall satisfy itself that the refusal is well founded. ... 7.1. Measures should be taken so that personal data kept for police purposes are deleted if they are no longer necessary for the purposes for which they were stored. For this purpose, consideration shall in particular be given to the following criteria: the need to retain data in the light of the conclusion of an inquiry into a particular case; a final judicial decision, in particular an acquittal; rehabilitation; spent convictions; amnesties; the age of the data subject, particular categories of data. 7.2. Rules aimed at fixing storage periods for the different categories of personal data as well as regular checks on their quality should be established in agreement with the supervisory authority or in accordance with domestic law. 8. The responsible body should take all the necessary measures to ensure the appropriate physical and logical security of the data and prevent unauthorised access, communication or alteration. The different characteristics and contents of files should, for this purpose, be taken into account.” 144. Recommendation No. R (95) 4 on the protection of personal data in the area of telecommunication services, with particular reference to telephone services, adopted on 7 February 1995, reads in so far as relevant as follows. “2.4. Interference by public authorities with the content of a communication, including the use of listening or tapping devices or other means of surveillance or interception of communications, must be carried out only when this is provided for by law and constitutes a necessary measure in a democratic society in the interests of: a. protecting state security, public safety, the monetary interests of the state or the suppression of criminal offences; b. protecting the data subject or the rights and freedoms of others. 2.5. In the case of interference by public authorities with the content of a communication, domestic law should regulate: a. the exercise of the data subject ’ s rights of access and rectification; b. in what circumstances the responsible public authorities are entitled to refuse to provide information to the person concerned, or delay providing it; c. storage or destruction of such data. If a network operator or service provider is instructed by a public authority to effect an interference, the data so collected should be communicated only to the body designated in the authorisation for that interference.” C. European Union 145. Council Resolution of 17 January 1995 on the lawful interception of telecommunications (96/C 329/01) provides as follows. “This section presents the requirements of law enforcement agencies relating to the lawful interception of telecommunications. These requirements are subject to national law and should be interpreted in accordance with applicable national policies. ... 1.3. Law enforcement agencies require that the telecommunications to and from a target service be provided to the exclusion of any telecommunications that do not fall within the scope of the interception authorization. ... 2. Law enforcement agencies require a real-time, fulltime monitoring capability for the interception of telecommunications. Call associated data should also be provided in real - time. If call associated data cannot be made available in real time, law enforcement agencies require the data to be available as soon as possible upon call termination. 3. Law enforcement agencies require network operators/service providers to provide one or several interfaces from which the intercepted communications can be transmitted to the law enforcement monitoring facility. These interfaces have to be commonly agreed on by the interception authorities and the network operators/service providers. Other issues associated with these interfaces will be handled according to accepted practices in individual countries. ... 5. Law enforcement agencies require the interception to be designed and implemented to preclude unauthorized or improper use and to safeguard the information related to the interception. ... 5.2. Law enforcement agencies require network operators/service providers to ensure that intercepted communications are only transmitted to the monitoring agency specified in the interception authorization. ...” 146. The above requirements were confirmed and expounded in Council Resolution No. 9194/01 of 20 June 2001 on law enforcement operational needs with respect to public telecommunication networks and services. 147. The judgment the Court of Justice of the European Union (CJEU ) of 8 April 2014 in the joined cases of Digital Rights Ireland and Seitinger and Others (C-293/12 and C-594/12, EU:C:2014:238) declared invalid the Data Retention Directive 2006/24/EC laying down the obligation on the providers of publicly available electronic communication services or of public communications networks to retain all traffic and location data for periods from six months to two years, in order to ensure that the data were available for the purpose of the investigation, detection and prosecution of serious crime, as defined by each member State in its national law. The CJEU noted that, even though the Directive did not permit the retention of the content of the communication, the traffic and location data covered by it might allow very precise conclusions to be drawn concerning the private lives of the persons whose data had been retained. Accordingly, the obligation to retain those data constituted in itself an interference with the right to respect for private life and communications guaranteed by Article 7 of the Charter of Fundamental Rights of the European Union and the right to protection of personal data under its Article 8. Furthermore, the access of the competent national authorities to the data constituted a further interference with those fundamental rights. The CJEU further held that the interference was particularly serious. The fact that data were retained and subsequently used without the subscriber or registered user being informed was likely to generate in the minds of the persons concerned the feeling that their private lives were the subject of constant surveillance. The interference satisfied an objective of general interest, namely to contribute to the fight against serious crime and terrorism and thus, ultimately, to public security. However, it failed to satisfy the requirement of proportionality. Firstly, the Directive covered, in a generalised manner, all persons and all means of electronic communication as well as all traffic data without any differentiation, limitation or exception being made in the light of the objective of fighting against serious crime. It therefore entailed an interference with the fundamental rights of practically the entire European population. It applied even to persons for whom there was no evidence capable of suggesting that their conduct might have a link, even an indirect or remote one, with serious crime. Secondly, the Directive did not contain substantive and procedural conditions relating to the access of the competent national authorities to the data and to their subsequent use. By simply referring, in a general manner, to serious crime, as defined by each member State in its national law, the Directive failed to lay down any objective criterion by which to determine which offences might be considered to be sufficiently serious to justify such an extensive interference with the fundamental rights enshrined in Articles 7 and 8 of the Charter. Above all, the access by the competent national authorities to the data retained was not made dependent on a prior review carried out by a court or by an independent administrative body whose decision sought to limit access to the data and their use to what was strictly necessary for the purpose of attaining the objective pursued. Thirdly, the Directive required that all data be retained for a period of at least six months, without any distinction being made between the categories of data on the basis of their possible usefulness for the purposes of the objective pursued or according to the persons concerned. The CJEU concluded that the Directive entailed a wide-ranging and particularly serious interference with the fundamental rights enshrined in Articles 7 and 8 of the Charter, without such an interference being precisely circumscribed by provisions to ensure that it was actually limited to what was strictly necessary. The CJEU also noted that the Directive did not provide for sufficient safeguards, by means of technical and organisational measures, to ensure effective protection of the data retained against the risk of abuse and against any unlawful access and use of those data. THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 148. The applicant complained that the system of covert interception of mobile-telephone communications in Russia did not comply with the requirements of Article 8 of the Convention, which reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Admissibility 149. The Government submitted that the applicant could not claim to be a victim of the alleged violation of his right to respect for his private life or correspondence (see paragraphs 152 - 57 below). Moreover, he had not exhausted domestic remedies (see paragraphs 219 - 26 below). 150. The Court considers that the Government ’ s objections are so closely linked to the substance of the applicant ’ s complaint that they must be joined to the merits. 151. The Court further notes that this complaint is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. It is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The applicant ’ s victim status and the existence of an “ interference” (a) The parties ’ submissions ( i ) The Government 152. The Government submitted that the applicant could not claim to be a victim of the alleged violation of Article 8 of the Convention and that there had been no interference with his rights. He had not complained that his communications had been intercepted. The gist of his complaint before the domestic courts and the Court was that communications service providers had installed special equipment enabling the authorities to perform operational-search activities. In the Government ’ s opinion, the case of Orange Slovensko, a. s. v. Slovakia (( dec. ), no. 43983/02, 24 October 2006) confirmed that installation of interception equipment, or even its financing, by private companies was not in itself contrary to the Convention. 153. The Government further submitted that Article 34 could not be used to lodge an application in the nature of an actio popularis; nor could it form the basis of a claim made in abstracto that a law contravened the Convention (they referred to Aalmoes and Others v. the Netherlands ( dec. ), no. 16269/02, 25 November 2004). They argued that the approach to victim status established in the cases of Klass and Others v. Germany ( 6 September 1978, § 34, Series A no. 28) and Malone v. the United Kingdom (2 August 1984, § 64, Series A no. 82) – according to which an individual might, under certain conditions, claim to be the victim of a violation occasioned by the mere existence of secret measures or of legislation permitting secret measures, without having to allege that such measures had in fact been applied to him– could not be interpreted so broadly as to encompass every person in the respondent State who feared that the security services might have compiled information about him. An applicant was required to demonstrate that there was a “reasonable likelihood” that the security services had compiled and retained information concerning his private life (they referred to Esbester v. the United Kingdom, no. 18601/91, Commission decision of 2 April 1993, unreported; Redgrave v. the United Kingdom, no. 20271/92, Commission decision of 1 September 1993, unreported; Matthews v. the United Kingdom, no. 28576/95, Commission decision of 16 October 1996, unreported; Halford v. the United Kingdom, 25 June 1997, § 17, Reports of Judgments and Decisions 1997 ‑ III; Weber and Saravia v. Germany ( dec. ), no. 54934/00, §§ 4-6 and 78, ECHR 2006 ‑ XI; and Kennedy v. the United Kingdom, no. 26839/05, §§ 122 - 23, 18 May 2010 ). 154. The Government maintained that exceptions to the rule of “reasonable likelihood” were permissible only for special reasons. An individual could claim an interference as a result of the mere existence of legislation permitting secret surveillance measures in exceptional circumstances only, having regard to the availability of any remedies at the national level and the risk of secret surveillance measures being applied to him ( they cited Kennedy, cited above, § 124). According to the Government, no such special reasons could be established in the present case. 155. Firstly, there was no “reasonable likelihood”, or indeed any risk whatsoever, that the applicant had been subjected to surveillance measures because he had not been suspected of any criminal offences. The fact that he was the editor-in-chief of a publishing company could not serve as a ground for interception under Russian law. The Government asserted that the applicant ’ s telephone conversations had never been intercepted. The applicant had not produced any proof to the contrary. The documents submitted by him in the domestic proceedings had concerned third persons and had not contained any proof that his telephone had been tapped. 156. Secondly, remedies were available at the national level to challenge both the alleged insufficiency of safeguards against abuse in Russian law and any specific surveillance measures applied to an individual. It was possible to request that the Constitutional Court review the constitutionality of the Operational-Search Activities Act of 12 August 1995 (no. 144 ‑ FZ – “the OSAA”). It was also possible to lodge a complaint with the Supreme Court, as had been successfully done by Mr N., who had obtained a finding of unlawfulness in respect of a provision of the Ministry of Communications ’ Order no. 130 (see paragraph 128 above ). As regards Order no. 70, contrary to the applicant ’ s allegations, it had been duly published (see paragraph 181 below) and could therefore be challenged in the courts. A person whose communications had been intercepted unlawfully without prior judicial authorisation could also obtain redress in a civil court. The Government referred to the Supreme Court ’ s judgment of 15 July 2009, which found that the installation of a video camera in the claimant ’ s office and the tapping of his office telephone had been unlawful because those surveillance measures had been carried out without prior judicial authorisation (see also paragraphs 219 - 24 below). Finally, Russian law provided for supervision of interception of communications by an independent body, the prosecutor ’ s office. 157. The Government concluded, in view of the above, that the present case was different from Association for European Integration and Human Rights and Ekimdzhiev v. Bulgaria ( no. 62540/00, 28 June 2007) where the Court had refused to apply the “reasonable likelihood” test because of the absence of any safeguards against unlawful interception in Bulgaria. Given that Russian law provided for adequate and sufficient safeguards against abuse in the sphere of interception of communications, including available remedies, in the Government ’ s opinion the applicant could not claim an interference as a result of the mere existence of legislation permitting secret surveillance. In the absence of a “reasonable likelihood” that his telephone communications had been intercepted, he could not claim to be a victim of the alleged violation of Article 8 of the Convention. (ii) The applicant 158. The applicant submitted that he could claim to be a victim of a violation of Article 8 due to the mere existence of legislation which allowed a system of secret interception of communications, without having to demonstrate that such secret measures had in fact been applied to him. The existence of such legislation entailed a threat of surveillance for all users of the telecommunications services and therefore amounted in itself to an interference with the exercise of his rights under Article 8. He relied in support of his position on Klass and Others (cited above, §§ 34 and 37), Association for European Integration and Human Rights and Ekimdzhiev (cited above, § 58) and Kennedy (cited above, § 123). 159. The applicant maintained that the test of “reasonable likelihood” had been applied by the Court only in those cases where the applicant had alleged actual interception, while in the cases concerning general complaints concerning legislation and practice permitting secret surveillance measures the “mere existence” test established in Klass and Others had been applied (see Association for European Integration and Human Rights and Ekimdzhiev, cited above, § 59, and Kennedy, cited above, §§ 122 - 23, with further references). In Liberty and Others v. the United Kingdom (no. 58243/00, §§ 56 - 57, 1 July 2008), the Court found that the existence of powers permitting the authorities to intercept communications constituted an interference with the Article 8 rights of the applicants, since they were persons to whom these powers might have been applied. In Kennedy (cited above, § 124) that test had been further elaborated upon to include the assessment of availability of any remedies at the national level and the risk of secret surveillance measures being applied to the applicant. Finally, in Mersch and Others v. Luxemburg (nos. 10439/83 and 5 others, Commission decision of 10 May 1985, Decisions and Reports 43 ) the Commission found that, in those cases where the authorities had no obligation to notify the persons concerned about the surveillance measures to which they had been subjected, the applicants could claim to be “victims” of a violation of the Convention on account of the mere existence of secret - surveillance legislation, even though they could not allege in support of their applications that they had been subjected to an actual measure of surveillance. 160. The applicant argued that he could claim to be a victim of a violation of Article 8 on account both of the mere existence of secret - surveillance legislation and of his personal situation. The OSAA, taken together with the FSB Act, the Communications Act and the Orders adopted by the Ministry of Communication, such as Order no. 70, permitted the security services to intercept, through technical means, any person ’ s communications without obtaining prior judicial authorisation for interception. In particular, the security services had no obligation to show the interception authorisation to anyone, including the communications service provider. The contested legislation therefore permitted blanket interception of communications. 161. No remedies were available under Russian law to challenge that legislation. Thus, as regards the possibility of challenging Order no. 70, the applicant referred to the Supreme Court ’ s decision of 25 September 2000 on a complaint by a Mr N. (see paragraph 128 above) finding that that Order was technical rather than legal in nature, and was therefore not subject to official publication. He also submitted a copy of the decision of 24 May 2010 by the Supreme Commercial Court finding that the Orders by the Ministry of Communications requiring communications providers to install equipment enabling the authorities to perform operational-search activities were not subject to judicial review in commercial courts. The domestic proceedings brought by the applicant had shown that Order no. 70 could not be effectively challenged before the Russian courts. Further, as far as the OSAA was concerned, the Constitutional Court had already examined its constitutionality on a number of occasions and had found that it was compatible with the Constitution. Finally, as regards the possibility of challenging individual surveillance measures, the applicant submitted that the person concerned was not notified of the interception, unless the intercepted material had been used as evidence in criminal proceedings against him. In the absence of notification, the domestic remedies were ineffective (see also paragraph 217 below). 162. As to his personal situation, the applicant submitted that he was a journalist and the chairperson of the St Petersburg branch of the Glasnost Defence Foundation, which monitored the state of media freedom and provided legal support to journalists whose professional rights had been violated (see paragraph 8 above). His communications were therefore at an increased risk of being intercepted. The applicant referred in that connection to the fundamental importance of protecting journalists ’ sources, emphasised by the Grand Chamber judgment in Sanoma Uitgevers B.V. v. the Netherlands ([GC], no. 38224/03, § 50, 14 September 2010). (b) The Court ’ s assessment 163. The Court observes that the applicant in the present case claims that there has been an interference with his rights as a result of the mere existence of legislation permitting covert interception of mobile-telephone communications and a risk of being subjected to interception measures, rather than as a result of any specific interception measures applied to him. ( i ) Summary of the Court ’ s case-law 164. The Court has consistently held in its case-law that the Convention does not provide for the institution of an actio popularis and that its task is not normally to review the relevant law and practice in abstracto, but to determine whether the manner in which they were applied to, or affected, the applicant gave rise to a violation of the Convention (see, among other authorities, N.C. v. Italy [GC], no. 24952/94, § 56, ECHR 2002 ‑ X; Krone Verlag GmbH & Co. KG v. Austria (no. 4), no. 72331/01, § 26, 9 November 2006; and Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 101, ECHR 2014 ). Accordingly, in order to be able to lodge an application in accordance with Article 34, an individual must be able to show that he was “directly affected” by the measure complained of. This is indispensable for putting the protection mechanism of the Convention into motion, although this criterion is not to be applied in a rigid, mechanical and inflexible way throughout the proceedings (see Centre for Legal Resources on behalf of Valentin Câmpeanu, cited above, § 96 ). 165. Thus, the Court has permitted general challenges to the relevant legislative regime in the sphere of secret surveillance in recognition of the particular features of secret surveillance measures and the importance of ensuring effective control and supervision of them. In Klass and Others the Court held that an individual might, under certain conditions, claim to be the victim of a violation occasioned by the mere existence of secret measures or of legislation permitting secret measures, without having to allege that such measures had in fact been applied to him. The relevant conditions were to be determined in each case according to the Convention right or rights alleged to have been infringed, the secret character of the measures objected to, and the connection between the applicant and those measures (see Klass and Others, cited above, § 34 ). The Court explained the reasons for its approach as follows. “ 36. The Court points out that where a State institutes secret surveillance the existence of which remains unknown to the persons being controlled, with the effect that the surveillance remains unchallengeable, Article 8 could to a large extent be reduced to a nullity. It is possible in such a situation for an individual to be treated in a manner contrary to Article 8, or even to be deprived of the right granted by that Article, without his being aware of it and therefore without being able to obtain a remedy either at the national level or before the Convention institutions. ... The Court finds it unacceptable that the assurance of the enjoyment of a right guaranteed by the Convention could be thus removed by the simple fact that the person concerned is kept unaware of its violation. A right of recourse to the Commission for persons potentially affected by secret surveillance is to be derived from Article 25 [currently Article 34 ], since otherwise Article 8 runs the risk of being nullified. 37. As to the facts of the particular case, the Court observes that the contested legislation institutes a system of surveillance under which all persons in the Federal Republic of Germany can potentially have their mail, post and telecommunications monitored, without their ever knowing this unless there has been either some indiscretion or subsequent notification in the circumstances laid down in the Federal Constitutional Court ’ s judgment ... To that extent, the disputed legislation directly affects all users or potential users of the postal and telecommunication services in the Federal Republic of Germany. Furthermore, as the Delegates rightly pointed out, this menace of surveillance can be claimed in itself to restrict free communication through the postal and telecommunication services, thereby constituting for all users or potential users a direct interference with the right guaranteed by Article 8. ... 38. Having regard to the specific circumstances of the present case, the Court concludes that each of the applicants is entitled to ‘ (claim) to be the victim of a violation ’ of the Convention, even though he is not able to allege in support of his application that he has been subject to a concrete measure of surveillance. The question whether the applicants were actually the victims of any violation of the Convention involves determining whether the contested legislation is in itself compatible with the Convention ’ s provisions. ... ” 166. Following the judgment in Klass and Others, the case-law of the Convention organs developed two parallel approaches to victim status in secret - surveillance cases. 167. In several cases the Commission and the Court held that the test in Klass and Others could not be interpreted so broadly as to encompass every person in the respondent State who feared that the security services might have compiled information about him. An applicant could not, however, be reasonably expected to prove that information concerning his private life had been compiled and retained. It was sufficient, in the area of secret measures, that the existence of practices permitting secret surveillance be established and that there was a reasonable likelihood that the security services had compiled and retained information concerning his private life (see Esbester, cited above; Redgrave, cited above; Christie v. the United Kingdom, no. 21482/93, Commission decision of 27 June 1994, Decisions and Reports 78-A; Matthews, cited above; Halford, cited above, § § 47 and 55 ‑ 57; and Iliya Stefanov v. Bulgaria, no. 65755/01, §§ 49 - 50, 22 May 2008). In all of the above cases, the applicants alleged actual interception of their communications. In some of them they also made general complaints concerning legislation and practice permitting secret surveillance measures ( see Esbester; Redgrave; Matthews; and Christie, all cited above). 168. In other cases the Court reiterated the Klass and Others approach that the mere existence of laws and practices which permitted and established a system for effecting secret surveillance of communications entailed a threat of surveillance for all those to whom the legislation might be applied. This threat necessarily affected freedom of communication between users of the telecommunications services and thereby amounted in itself to an interference with the exercise of the applicants ’ rights under Article 8, irrespective of any measures actually taken against them ( see Malone, cited above, § 64; Weber and Saravia, cited above, § 78; Association for European Integration and Human Rights and Ekimdzhiev, cited above, §§ 58 - 59 and 69; Liberty and Others, cited above, §§ 56 - 57; and Iordachi and Others v. Moldova, no. 25198/02, §§ 30-35, 10 February 2009). In all of the above cases the applicants made general complaints concerning legislation and practice permitting secret surveillance measures. In some of them they also alleged actual interception of their communications (see Malone, cited above, § 62, and Liberty and Others, cited above, §§ 41 - 42). 169. Finally, in its most recent case on the subject, Kennedy, the Court held that sight should not be lost of the special reasons justifying the Court ’ s departure, in cases concerning secret measures, from its general approach to deny individuals the right to challenge a law in abstracto. The principal reason was to ensure that the secrecy of such measures did not result in the measures being effectively unchallengeable and outside the supervision of the national judicial authorities and the Court. In order to assess, in a particular case, whether an individual can claim an interference as a result of the mere existence of legislation permitting secret surveillance measures, the Court must have regard to the availability of any remedies at the national level and the risk of secret surveillance measures being applied to him. Where there is no possibility of challenging the alleged application of secret surveillance measures at domestic level, widespread suspicion and concern among the general public that secret surveillance powers are being abused cannot be said to be unjustified. In such cases, even where the actual risk of surveillance is low, there is a greater need for scrutiny by this Court (see Kennedy, cited above, § 124). (ii) Harmonisation of the approach to be taken 170. The Court considers, against this background, that it is necessary to clarify the conditions under which an applicant can claim to be the victim of a violation of Article 8 without having to prove that secret surveillance measures had in fact been applied to him, so that a uniform and foreseeable approach may be adopted. 171. In the Court ’ s view the Kennedy approach is best tailored to the need to ensure that the secrecy of surveillance measures does not result in the measures being effectively unchallengeable and outside the supervision of the national judicial authorities and of the Court. Accordingly, the Court accepts that an applicant can claim to be the victim of a violation occasioned by the mere existence of secret surveillance measures, or legislation permitting secret surveillance measures, if the following conditions are satisfied. Firstly, the Court will take into account the scope of the legislation permitting secret surveillance measures by examining whether the applicant can possibly be affected by it, either because he belongs to a group of persons targeted by the contested legislation or because the legislation directly affects all users of communication services by instituting a system where any person can have his communications intercepted. Secondly, the Court will take into account the availability of remedies at the national level and will adjust the degree of scrutiny depending on the effectiveness of such remedies. As the Court observed in Kennedy, where the domestic system does not afford an effective remedy to the person who suspects that he was subjected to secret surveillance, widespread suspicion and concern among the general public that secret surveillance powers are being abused cannot be said to be unjustified (see Kennedy, cited above, § 124). In such circumstances the threat of surveillance can be claimed in itself to restrict free communication through the postal and telecommunication services, thereby constituting for all users or potential users a direct interference with the right guaranteed by Article 8. There is therefore a greater need for scrutiny by the Court, and an exception to the rule denying individuals the right to challenge a law in abstracto is justified. In such cases the individual does not need to demonstrate the existence of any risk that secret surveillance measures were applied to him. By contrast, if the national system provides for effective remedies, a widespread suspicion of abuse is more difficult to justify. In such cases, the individual may claim to be a victim of a violation occasioned by the mere existence of secret measures or of legislation permitting secret measures only if he is able to show that, due to his personal situation, he is potentially at risk of being subjected to such measures. 172. The Kennedy approach therefore provides the Court with the requisite degree of flexibility to deal with a variety of situations which might arise in the context of secret surveillance, taking into account the particularities of the legal systems in the member States, namely the available remedies, as well as the different personal situations of applicants. (iii) Application to the present case 173. It is not disputed that mobile-telephone communications are covered by the notions of “private life” and “correspondence” in Article 8 § 1 (see, for example, Liberty and Others, cited above, § 56 ). 174. The Court observes that the applicant in the present case claims that there has been an interference with his rights as a result of the mere existence of legislation permitting secret surveillance measures and a risk of being subjected to such measures, rather than as a result of any specific surveillance measures applied to him. 175. The Court notes that the contested legislation institutes a system of secret surveillance under which any person using the mobile - telephone services of Russian providers can have his mobile-telephone communications intercepted, without ever being notified of the surveillance. To that extent, the legislation in question directly affects all users of these mobile - telephone services. 176. Furthermore, for the reasons set out below (see paragraphs 286 ‑ 300 ), Russian law does not provide for effective remedies for a person who suspects that he was subjected to secret surveillance. 177. In view of the above finding, the applicant does not need to demonstrate that, due to his personal situation, he is at risk of being subjected to secret surveillance. 178. Having regard to the secret nature of the surveillance measures provided for by the contested legislation, the broad scope of their application, affecting all users of mobile-telephone communications, and the lack of effective means to challenge the alleged application of secret surveillance measures at domestic level, the Court considers an examination of the relevant legislation in abstracto to be justified. 179. The Court therefore finds that the applicant is entitled to claim to be the victim of a violation of the Convention, even though he is unable to allege that he has been subject to a concrete measure of surveillance in support of his application. For the same reasons, the mere existence of the contested legislation amounts in itself to an interference with the exercise of his rights under Article 8. The Court therefore dismisses the Government ’ s objection concerning the applicant ’ s lack of victim status. 2. The justification for the interference (a) The parties ’ submissions ( i ) Accessibility of domestic law 180. The applicant submitted that the addendums to Order no. 70 describing the technical requirements for the equipment to be installed by communications service providers had never been officially published and were not accessible to the public. In the applicant ’ s opinion, in so far as they determined the powers of the law-enforcement authorities with regard to secret surveillance, they affected citizens ’ rights and ought therefore to have been published. The fact that the applicant had eventually had access to the addendums in the domestic proceedings could not remedy the lack of an official publication ( he referred to Kasymakhunov and Saybatalov v. Russia, nos. 26261/05 and 26377/06, § 92, 14 March 2013). Citizens should not be required to engage judicial proceedings to obtain access to regulations applicable to them. The Court had already found that it was essential to have clear, detailed and accessible rules on the application of secret measures of surveillance ( Shimovolos v. Russia, no. 30194/09, § 68, 21 June 2011). 181. The Government submitted that Order no. 70 was technical in nature and was not therefore subject to official publication. It had been published in a specialised magazine, SvyazInform ( issue no. 6 of 1999 ). It was also available in the ConsultantPlus online legal database, and was accessible without charge. The applicant had submitted a copy of the Order with its addendums to the Court, which showed that he had been able to obtain access to it. The domestic law was therefore accessible. (ii) Scope of application of secret surveillance measures 182. The applicant submitted that the Court had already found that the OSAA did not meet the “foreseeability” requirement because the legal discretion of the authorities to order “an operative experiment” involving recording of private communications through a radio ‑ transmitting device was not subject to any conditions, and the scope and the manner of its exercise were not defined (see Bykov v. Russia [GC], no. 4378/02, § 80, 10 March 2009). The present case was similar to that in Bykov. In particular, Russian law did not clearly specify the categories of persons who might be subjected to interception measures. In particular, surveillance measures were not limited to persons suspected or accused of criminal offences. Any person who had information about a criminal offence could have his telephone tapped. Furthermore, interception was not limited to serious and especially serious offences. Russian law allowed interception measures in connection with offences of medium severity, such as, for example, pickpocketing. 183. The Government submitted that interception of communications might be conducted only following the receipt of information that a criminal offence had been committed, was being committed or was being plotted; about persons conspiring to commit, or committing, or having committed a criminal offence; or about events or activities endangering the national, military, economic or ecological security of the Russian Federation. The Constitutional Court had held in its ruling of 14 July 1998 that collecting information about a person ’ s private life was permissible only with the aim of preventing, detecting and investigating criminal offences or in pursuance of other lawful aims listed in the OSAA. 184. Only offences of medium severity, serious offences and especially serious offences might give rise to an interception order and only persons suspected of such offences or who might have information about such offences could be subject to interception measures. The Government submitted in this connection that the Court had already found that surveillance measures in respect of a person who was not suspected of any offence could be justified under the Convention ( referring to Greuter v. the Netherlands ( dec. ), no. 40045/98, 19 March 2002). 185. Further, in respect of interceptions for the purpose of protecting national security, the Government argued that the requirement of “foreseeability” of the law did not go so far as to compel States to enact legal provisions listing in detail all conduct that might prompt a decision to subject an individual to surveillance on “national security” grounds (see Kennedy, cited above, § 159). ( iii ) The duration of secret surveillance measures 186. The applicant submitted that the OSAA did not explain under what circumstances interception could be extended beyond six months. Nor did it establish the maximum duration of interception measures. 187. The Government submitted that under Russian law interception might be authorised by a judge for a maximum period of six months and might be extended if necessary. It had to be discontinued if the investigation was terminated. They argued that it was reasonable to leave the duration of the interception to the discretion of the domestic authorities, having regard to the complexity and the duration of the investigation in a specific case ( see Kennedy, cited above). They also referred to the case of Van Pelt v. the Netherlands (no. 20555/92, Commission decision of 6 April 1994, unreported ), where the Commission had found that the tapping of the applicant ’ s telephone for almost two years had not violated the Convention. ( iv ) Procedures to be followed for storing, accessing, examining, using, communicating and destroying the intercepted data 188. The applicant further submitted that the OSAA did not specify the procedures to be followed for examining, storing, accessing or using the intercept data or the precautions to be taken when communicating the data to other parties. It provided that the data had to be destroyed within six months, unless those data were needed in the interest of the service or of justice. There was however no definition of what the “interest of the service or of justice” meant. Russian law also gave complete freedom to the trial judge as to whether to store or to destroy data used in evidence after the end of the trial. 189. The Government submitted that the OSAA required that records of intercepted communications had to be stored under conditions excluding any risk of their being listened to or copied by unauthorised persons. The judicial decision authorising interception of communications, the materials that served as a basis for that decision and the data collected as a result of interception constituted a State secret and were to be held in the exclusive possession of the State agency performing interceptions. If it was necessary to transmit them to an investigator, a prosecutor or a court, they could be declassified by the heads of the agencies conducting operational-search activities. Interception authorisations were declassified by the courts which had issued them. The procedure for transmitting the data collected in the course of operational-search activities to the competent investigating authorities or a court was set out in the Ministry of the Interior ’ s Order of 27 September 2013 (see paragraph 58 above). 190. The data collected in the course of operational-search activities were to be stored for one year and then destroyed, unless they were needed in the interests of the authority or of justice. Recordings were to be stored for six months and then destroyed. Russian law was therefore foreseeable and contained sufficient safeguards. ( v ) Authorisation of secret surveillance measures (α) The applicant 191. The applicant submitted that, although domestic law required prior judicial authorisation for interceptions, the authorisation procedure did not provide for sufficient safeguards against abuse. Firstly, in urgent cases communications could be intercepted without judicial authorisation for up to forty-eight hours. Secondly, in contrast to the CCrP, the OSAA did not provide for any requirements concerning the content of the interception authorisation. In particular, it did not require that the interception subject be clearly specified in the authorisation by name, telephone number or address (see, by contrast, the United Kingdom ’ s and Bulgaria ’s legislation reproduced in Kennedy, cited above, §§ 41 and 160, and Association for European Integration and Human Rights and Ekimdzhiev, cited above, § 13). Nor did domestic law require that the authorisation specify which communications, or types of communications, should be recorded in order to limit the law-enforcement authorities ’ discretion to determine the scope of surveillance measures. Russian law did not establish any special rules for surveillance in sensitive situations, for example where the confidentiality of journalists ’ sources was at stake, or where surveillance concerned privileged lawyer-client communications. 192. The applicant further submitted that domestic law did not impose any requirement on the judge to verify the existence of a “reasonable suspicion” against the person concerned or to apply the “necessity” and “proportionality” test. The requesting authorities had no obligation to attach any supporting materials to the interception requests. Moreover, the OSAA expressly prohibited submission to the judge of certain materials – those containing information about undercover agents or police informers or about the organisation and tactics of operational-search measures – thereby making it impossible for the judge to verify effectively the existence of a “reasonable suspicion”. Russian law did not require that the judge should authorise interception only when it was impossible to achieve the legitimate aims by other less intrusive means. 193. In support of his allegation that judges did not verify the existence of a “reasonable suspicion” against the person concerned and did not apply the “necessity” and “proportionality” test, the applicant produced copies of analytical notes issued by three District Courts in different Russian regions (the Tambov region, the Tula region and the Dagestan Republic). The courts summarised their own case-law concerning operational-search measures involving interference with the privacy of communications or privacy of the home for the period from 2010 - 13. One of the courts noted that it refused authorisation to carry out an operational-search measure if it did not appear on the list of operational-search measures in the OSAA, if the request for authorisation was not signed by a competent official or was not reasoned, or if the case fell under statutory restrictions on the use of that measure (for example, relating to the person ’ s status or to the nature of the offence). Authorisation was given if all of the above conditions were met. Another court stated that authorisation could also be refused if the request was insufficiently reasoned, that is, if it did not contain sufficient information permitting the judge to ascertain that the measure was lawful and justified. The third court stated that it granted authorisation if requested to do so by the law-enforcement authorities. It never refused a request for authorisation. All three courts considered that the request was sufficiently reasoned if it referred to the existence of information listed in section 8(2) of the OSAA (see paragraph 31 above). One of the courts noted that supporting materials were never attached to requests for authorisation; another court noted that some, but not all, of the requests were accompanied by supporting materials, while the third court stated that all requests were accompanied by supporting materials. In all three courts the judges never requested that the law-enforcement authorities submit additional supporting materials, such as materials confirming the grounds for the interception or proving that the telephone numbers to be tapped belonged to the person concerned. Two courts granted interception authorisations in respect of unidentified persons, one of them specifying that such authorisations only concerned collection of data from technical channels of communication. Such authorisations did not mention a specific person or a telephone number to be tapped, but authorised interception of all telephone communications in the area where a criminal offence had been committed. One court never gave such authorisations. Two courts noted that authorisations always indicated the duration for which the interception was authorised, while one court stated that the duration of interception was not indicated in the authorisations issued by it. Finally, none of the three courts had examined any complaints from persons whose communications had been intercepted. 194. The applicant also produced official statistics by the Supreme Court for the period from 2009 - 13. It could be seen from those statistics that in 2009 Russian courts granted 130,083 out of 132,821 requests under the CCrP and 245,645 out of 246,228 requests under the OSAA (99%). In 2010 the courts allowed 136,953 out of 140,372 interception requests under the CCrP and 276,682 out of 284,137 requests under the OSAA. In 2011 the courts allowed 140,047 out of 144,762 interception requests under the CCrP and 326,105 out of 329,415 requests under the OSAA. In 2012 they granted 156,751 out of 163,469 interception requests under the CCrP (95%) and 372,744 out of 376,368 requests under the OSAA (99%). In 2013 the courts allowed 178,149 out of 189,741 interception requests lodged under the CCrP (93%) and 416,045 out of 420,242 interception requests lodged under the OSAA (99%). The applicant drew the Court ’ s attention to the fact that the number of interception authorisations had almost doubled between 2009 and 2013. He also argued that the very high percentage of authorisations granted showed that the judges did not verify the existence of a “reasonable suspicion” against the interception subject and did not exercise careful and rigorous scrutiny. As a result, interceptions were ordered in respect of vast numbers of people in situations where the information could have been obtained by other less intrusive means. 195. The applicant concluded from the above that the authorisation procedure was defective and was therefore not capable of confining the use of secret surveillance measures to what was necessary in a democratic society. 196. As regards safeguards against unauthorised interceptions, the applicant submitted that the law-enforcement authorities were not required under domestic law to show judicial authorisation to the communications service provider before obtaining access to a person ’ s communications. All judicial authorisations were classified documents, kept in the exclusive possession of law-enforcement authorities. An obligation to forward an interception authorisation to the communications service provider was mentioned only once in Russian law in connection with the monitoring of communications-related data under the CCrP (see paragraph 48 above ). The equipment the communications service providers had installed pursuant to the Orders issued by the Ministry of Communications, in particular the unpublished addendums to Order no. 70, allowed the law-enforcement authorities direct and unrestricted access to all mobile-telephone communications of all users. The communications service providers also had an obligation under Order no. 538 to create databases to store information about all subscribers and the services provided to them for three years. The secret services had direct remote access to those databases. The manner in which the system of secret surveillance thus operated gave the security services and the police the technical means to circumvent the authorisation procedure and to intercept any communications without obtaining prior judicial authorisation. The necessity to obtain such authorisation therefore arose only in those cases where the intercepted data had to be used as evidence in criminal proceedings. 197. The applicant produced documents showing, in his view, that law - enforcement officials unlawfully intercepted telephone communications without prior judicial authorisation and disclosed the records to unauthorised persons. For example, he produced printouts from the Internet containing transcripts of the private telephone conversations of politicians. He also submitted news articles describing criminal proceedings against several high-ranking officers from the police technical department. The officers were suspected of unlawfully intercepting the private communications of politicians and businessmen in return for bribes from their political or business rivals. The news articles referred to witness statements to the effect that intercepting communications in return for bribes was a widespread practice and that anyone could buy a transcript of another person ’ s telephone conversations from the police. (β) The Government 198. The Government submitted that any interception of telephone or other communications had to be authorised by a court. The court took a decision on the basis of a reasoned request by a law-enforcement authority. The burden of proof was on the requesting authority to justify the necessity of the interception measures. To satisfy that burden of proof, the requesting authorities enclosed with their request all relevant supporting materials, except materials containing information about undercover agents or police informers or about the organisation and tactics of operational-search measures. That exception was justified by the necessity to ensure the security and protection of undercover agents and police informers and their family members and was therefore compatible with the Convention. 199. The Government further referred to the Plenary Supreme Court ’ s Ruling of 27 June 2013, which explained to the lower courts that any restrictions on human rights and freedoms had to be prescribed by law and be necessary in a democratic society, that is, proportionate to a legitimate aim. Courts were instructed to rely on established facts, verify the existence of relevant and sufficient reasons to justify a restriction on an individual ’ s rights and balance the interests of the individual whose rights were being restricted against the interests of other individuals, the State and society as a whole. The OSAA explicitly required the courts to give reasons for the decision to authorise interception. In line with the Constitutional Court ’ s decision of 8 February 2007 (see paragraph 42 above), the interception authorisation was to refer to the specific grounds for suspecting the person in respect of whom operational-search measures were requested of a criminal offence or of activities endangering national, military, economic or ecological security. In its decision of 2 October 2003 (see paragraph 41 above), the Constitutional Court also held that judges had an obligation to examine the materials submitted to them carefully and thoroughly. 200. According to the Government, in practice, each interception authorisation specified : the State agency responsible for performing the interception; the grounds for conducting the surveillance measures and the reasons why they were necessary; a reference to applicable legal provisions, the person whose communications were to be intercepted; the grounds for suspecting that person ’ s involvement in the commission of a specific criminal offence; that person ’ s telephone number or IMEI code; the period of time for which the authorisation was granted; and other necessary information. In exceptional circumstances it was permissible to authorise the interception of communications of unidentified persons. As a rule, in such cases a judge authorised the collection of data from technical channels of communication in order to identify the persons present at a specific location at the time that a criminal offence was committed there. That practice was compatible with the principles established in the Court ’ s case-law, because in such cases the interception authorisation specified a single set of premises (locations) as the premises (locations) in respect of which the authorisation was ordered ( they referred to Kennedy, cited above). 201. Russian law permitted communications to be intercepted without prior judicial authorisation in urgent cases. A judge had to be informed of any such case within twenty-four hours and judicial authorisation for continuing the interception had to be obtained within forty-eight hours. According to the Government, the judge had to examine the lawfulness of such interception even in those cases when it had already been discontinued. They referred to an appeal judgment of 13 December 2013 in a criminal case, in which the Supreme Court declared inadmissible as evidence recordings of telephone conversations obtained under the urgent procedure without prior judicial authorisation. The Supreme Court had held that, although a judge had been informed of the interception, no judicial decision on its lawfulness and necessity had ever been issued. ( vi ) Supervision of the implementation of secret surveillance measures (α) The applicant 202. Regarding supervision of interceptions, the applicant argued at the outset that in Russia the effectiveness of any supervision was undermined by the absence of an obligation on the intercepting authorities to keep records of interceptions carried out by them. Moreover, Order no. 70 explicitly provided that information about interceptions could not be logged or recorded. 203. The applicant further submitted that in Russia neither the judge who had issued the interception authorisation nor any other independent official qualified for judicial office had the power to supervise its implementation, and in particular to review whether the surveillance remained within the scope determined by the interception authorisation and complied with various requirements contained in domestic law. 204. Domestic law did not set out any procedures for the supervision of interceptions by the President, Parliament and the government. They certainly had no powers to supervise the implementation of interception measures in specific cases. 205. As regards supervision by the Prosecutor General and competent low-level prosecutors, they could not be considered independent because of their position within the criminal justice system and their prosecuting functions. In particular, prosecutors gave their approval to all interception requests lodged by investigators in the framework of criminal proceedings, and participated in the related court hearings. They could then use the data obtained as a result of the interception in the framework of their prosecuting functions, in particular by presenting them as evidence during a trial. There was therefore a conflict of interest with the prosecutor performing the dual function of a party to a criminal case and an authority supervising interceptions. 206. The applicant further submitted that the prosecutors ’ supervisory functions were limited because certain materials, in particular those revealing the identity of undercover agents or the tactics, methods and means used by the security services, were outside the scope of their supervision. The prosecutors ’ supervisory powers were also limited in the area of counter - intelligence, where inspections could be carried out only following an individual complaint. Given the secrecy of interception measures and the lack of any notification of the person concerned, such individual complaints were unlikely to be lodged, with the result that counter - intelligence-related surveillance measures de facto escaped any supervision by prosecutors. It was also significant that prosecutors had no power to cancel an interception authorisation, to discontinue unlawful interceptions or to order the destruction of unlawfully obtained data. 207. Further, prosecutors ’ biannual reports were not published or publicly discussed. The reports were classified documents and contained statistical information only. They did not contain any substantive analysis of the state of legality in the sphere of operational-search activities or any information about what breaches of law had been detected and what measures had been taken to remedy them. Moreover, the reports amalgamated together all types of operational-search activities, without separating interceptions from other measures. (β) The Government 208. The Government submitted that supervision of operational-search activities, including interceptions of telephone communications, was exercised by the President, Parliament and the government. In particular, the President determined the national security strategy and appointed and dismissed the heads of all law-enforcement agencies. There was also a special department within the President ’ s Administration which supervised the activities of the law-enforcement agencies, including operational-search activities. That department consisted of officials from the Ministry of the Interior and the FSB who had the appropriate level of security clearance. Parliament participated in the supervision process by adopting and amending laws governing operational-search activities. It could also form committees and commissions and hold parliamentary hearings on all issues, including those relating to operational-search activities, and could hear the heads of law-enforcement agencies if necessary. The government adopted decrees and orders governing operational-search activities and allocated the budgetary funds to the law-enforcement agencies. 209. Supervision was also exercised by the Prosecutor General and competent low-level prosecutors who were independent from the federal, regional and local authorities. The Prosecutor General and his deputies were appointed and dismissed by the Federation Council, the upper house of Parliament. Prosecutors were not entitled to lodge interception requests. Such requests could be lodged either by the State agency performing operational-search activities in the framework of the OSAA, or by the investigator in the framework of the CCrP. The prosecutor could not give any instructions to the investigator. In the course of a prosecutor ’ s inspection, the head of the intercepting agency had an obligation to submit all relevant materials to the prosecutor at his request and could be held liable for a failure to do so. The prosecutors responsible for supervision of operational-search activities submitted six-monthly reports to the Prosecutor General. The reports did not, however, analyse interceptions separately from other operational-search measures. ( vii ) Notification of secret surveillance measures (α) The applicant 210. The applicant further submitted that Russian law did not provide that a person whose communications had been intercepted was to be notified before, during or after the interception. He conceded that it was acceptable not to notify the person before or during the interception, since the secrecy of the measure was essential to its efficacy. He argued, however, that such notification was possible after the interception had ended, “as soon as it [ could ] be made without jeopardising the purpose of the restriction” ( he referred to Klass and Others, cited above). In Russia the person concerned was not notified at any point. He could therefore learn about the interception only if there was a leak or if criminal proceedings were opened against him, and the intercepted data were used in evidence. 211. With regard to the possibility of obtaining access to the data collected in the course of interception, the applicant submitted that such access was possible only in very limited circumstances. If criminal proceedings had never been opened or if the charges had been dropped on other grounds than those listed in the OSAA, the person concerned was not entitled to have access to the data. Furthermore, before obtaining access, the claimant had to prove that his communications had been intercepted. Given the secrecy of the surveillance measures and the lack of notification, such burden of proof was impossible to satisfy unless the information about the interception had been leaked. Even after satisfying all those preconditions, the person could only receive “information about the data collected” rather than obtain access to the data themselves. Finally, only information that did not contain State secrets could be disclosed. Given that under the OSAA all data collected in the course of operational-search activities constituted a State secret and the decision to declassify them fell to the head of the intercepting authority, access to interception-related documents depended entirely on the intercepting authorities ’ discretion. 212. A refusal to grant access to the collected data could be appealed against to a court and the OSAA required the intercepting authorities to produce, at the judge ’ s request, “operational-search materials containing information about the data to which access [had been] refused”. It was significant that the intercepting authorities were required to submit “information about the data” rather than the data themselves. Materials containing information about undercover agents or police informers could not be submitted to the court and were thereby excluded from the scope of judicial review. (β) The Government 213. The Government submitted that under Russian law an individual subject to secret surveillance measures did not have to be informed of those measures at any point. The Constitutional Court held (see paragraph 40 above) that, in view of the necessity to keep the surveillance measures secret, the principles of a public hearing and adversarial proceedings were not applicable to the interception authorisation proceedings. The person concerned was therefore not entitled to participate in the authorisation proceedings or to be informed of the decision taken. 214. After the termination of the investigation, the defendant was entitled to study all the materials in the criminal case-file, including the data obtained in the course of operational-search activities. Otherwise, in cases where the investigator decided not to open criminal proceedings against the interception subject or to discontinue the criminal proceedings on the grounds that the alleged offence had not been committed or one or more elements of a criminal offence were missing, the interception subject was entitled to request and receive information about the data collected. A refusal to provide such information could be challenged before a court, which had power to order the disclosure of the information if it considered the refusal to be ill-founded. The Government submitted a copy of the decision of 4 August 2009 by the Alekseyevskiy District Court of the Belgorod region, ordering that the police provide, within one month, an interception subject with information about the data collected about him in the course of the interception “ to the extent permitted by the requirements of confidentiality and with the exception of data which could enable State secrets to be disclosed ”. 215. The Government argued that Russian law was different from the Bulgarian law criticised by the Court in its judgment in Association for European Integration and Human Rights and Ekimdzhiev (cited above, § 91) because it provided for a possibility of declassifying the interception materials and granting the person concerned access to them. In support of that allegation, they referred to the criminal - conviction judgment of 11 July 2012 by the Zabaykalsk Regional Court. That judgment – a copy of which was not provided to the Court – relied, according to the Government, on a judicial decision authorising the interception of the defendant ’ s telephone communications which had been declassified and submitted to the trial judge at his request. The Government also referred to two further judgments – by the Presidium of the Krasnoyarsk Regional Court and the Presidium of the Supreme Court of the Mariy -El Republic – quashing, by way of supervisory review, judicial decisions authorising the interception of communications. They did not submit copies of those judgments. ( viii ) Available remedies (α) The applicant 216. The applicant submitted that the questions of notification of surveillance measures and of the effectiveness of remedies before the courts were inextricably linked, since there was in principle little scope for recourse to the courts by the individual concerned unless the latter was advised of the measures taken without his knowledge and was thus able to challenge their legality retrospectively (he referred to Weber and Saravia, cited above). 217. The applicant argued that the remedies available under Russian law were ineffective. As regards the possibility for the surveillance subject to apply for judicial review of the measures applied, the burden of proof was on the claimant to demonstrate that his telephone had been tapped. However, since those being monitored were not informed of the surveillance measures unless charged with a criminal offence, the burden of proof was impossible to satisfy. The copies of domestic judgments submitted by the Government concerned searches and seizures, that is, operational -search measures which were known to the person concerned (see paragraphs 220, 221 and 223 below ). The applicant knew of no publicly available judicial decisions where an interception subject ’ s complaint concerning unlawful interception had been allowed. It was also significant that in none of the judgments produced by the Government had the domestic courts assessed the proportionality of the contested operational -search measures. The domestic proceedings brought by the applicant had also clearly demonstrated that remedies available under Russian law were ineffective. Moreover, in Avanesyan v. Russia (no. 41152/06, 18 September 2014) the Court had already found that there were no effective remedies under Russian law to challenge operational-search measures. 218. Lastly, the applicant submitted that an interception subject or the communications service providers could not challenge the ministerial orders governing secret interceptions of communications, because those orders were considered to be technical rather than legal in nature and were therefore not subject to judicial review, as demonstrated by the decisions mentioned in paragraph 161 above. (β) The Government 219. The Government argued that in Russia a person claiming that his rights had been or were being violated by a State official performing operational-search activities was entitled to complain to the official ’ s superior, the prosecutor or a court, in accordance with section 5 of the OSAA (see paragraph 83 above). 220. As explained by the Plenary Supreme Court, if the person concerned learned of the interception, he could apply to a court of general jurisdiction in accordance with the procedure established by Chapter 25 of the CCP ( see paragraph 92 above ). According to the Government, a claimant did not have to prove that his rights had been breached as a result of the interception measures. The burden of proof was on the intercepting authorities to show that the interception measures had been lawful and justified. Russian law provided that if a breach of the claimant ’ s rights was found by a court in civil proceedings, the court had to take measures to remedy the violation and compensate the damage ( see paragraph 97 above ). The Government submitted copies of two judicial decisions under Chapter 25 of the CCP, declaring searches and seizures of objects or documents unlawful and ordering the police to take specific measures to remedy the violations. 221. Furthermore, according to the Government, the interception subject was also entitled to lodge a supervisory-review complaint against the judicial decision authorising the interception, as explained by the Constitutional Court in its decision of 15 July 2008 (see paragraph 43 above). He was likewise entitled to lodge an appeal or a cassation appeal. 222. If the interception was carried out in the framework of criminal proceedings, the person concerned could also lodge a complaint under Article 125 of the CCrP. The Government referred to the Supreme Court ’ s decision of 26 October 2010 quashing, by way of supervisory review, the lower courts ’ decisions to declare inadmissible K. ’ s complaint under Article 125 of the CCrP regarding the investigator ’ s refusal to give her a copy of the judicial decision authorising the interception of her communications. The Supreme Court held that her complaint was to be examined under Article 125 of the CCrP, despite the fact that she had already been convicted, and that she was entitled to receive a copy of the interception authorisation. The Government submitted copies of ten judicial decisions allowing complaints under Article 125 of the CCrP concerning unlawful searches and seizures of objects or documents. They also produced a copy of a judgment acquitting a defendant on appeal after finding that his conviction at first instance had been based on inadmissible evidence obtained as a result of an unlawful test purchase of drugs. 223. The Government further submitted that the person concerned could apply for compensation under Article 1069 of the Civil Code ( see paragraph 102 above ). That Article provided for compensation of pecuniary and non-pecuniary damage caused to an individual or a legal entity by unlawful actions by State and municipal bodies and officials, provided that the body ’ s or the official ’ s fault had been established. Compensation for non-pecuniary damage was determined in accordance with the rules set out in Articles 1099 to 1101 of the Civil Code ( see paragraphs 103 - 04 above ). The Government observed, in particular, that non-pecuniary damage caused through dissemination of information which was damaging to honour, dignity or reputation could be compensated irrespective of the tortfeasor ’ s fault. The Government submitted a copy of a decision of 9 December 2013 by the Vichuga Town Court of the Ivanovo region, awarding compensation in respect of non-pecuniary damage for unlawful interception of a suspect ’ s telephone conversations after the recordings obtained as a result of that interception had been declared inadmissible as evidence by the trial court. The Government also submitted a judicial decision awarding compensation for an unlawful search and seizure of documents and a judicial decision awarding compensation to an acquitted defendant for unlawful prosecution. 224. Russian law also provided for criminal remedies for abuse of power (Articles 285 and 286 of the Criminal Code), unauthorised collection or dissemination of information about a person ’ s private and family life (Article 137 of the Criminal Code) and breach of citizens ’ right to privacy of communications (Article 138 of the Criminal Code – see paragraphs 19 ‑ 22 above ). The Government referred in that connection to the Supreme Court ’ s judgment of 24 October 2002, convicting a certain E.S. of an offence under Article 138 of the Criminal Code for inciting an official to supply him with the names of the owners of several telephone numbers and to provide him with call detail records in respect of those telephone numbers. They also referred to the Supreme Court ’ s judgment of 15 March 2007, convicting a customs official of an offence under Article 138 of the Criminal Code for intercepting the telephone communications of a certain P. They submitted copies of two more conviction judgments under Article 138 of the Criminal Code: the first concerned the selling of espionage equipment, namely pens and watches with built-in cameras, while the second concerned the covert hacking of a communication provider ’ s database in order to obtain the users ’ call detail records. 225. Lastly, the Government argued that remedies were also available in Russian law to challenge the alleged insufficiency of safeguards against abuse in the sphere of interception of communications (see paragraph 156 above). 226. The Government submitted that the applicant had not used any of the remedies available to him under Russian law and described above. In particular, he had chosen to bring judicial proceedings against mobile-network operators, the Ministry of Communications being joined only as a third party to the proceedings. (b) The Court ’ s assessment ( i ) General principles 227. The Court reiterates that any interference can only be justified under Article 8 § 2 if it is in accordance with the law, pursues one or more of the legitimate aims to which paragraph 2 of Article 8 refers and is necessary in a democratic society in order to achieve any such aim (see Kennedy, cited above, § 130). 228. The Court notes from its well - established case-law that the wording “in accordance with the law” requires the impugned measure both to have some basis in domestic law and to be compatible with the rule of law, which is expressly mentioned in the Preamble to the Convention and inherent in the object and purpose of Article 8. The law must thus meet quality requirements : it must be accessible to the person concerned and foreseeable as to its effects (see, among many other authorities, Rotaru v. Romania [GC], no. 28341/95, § 52, ECHR 2000 ‑ V; S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, § 95, ECHR 2008; and Kennedy, cited above, § 151). 229. The Court has held on several occasions that the reference to “foreseeability” in the context of interception of communications cannot be the same as in many other fields. Foreseeability in the special context of secret measures of surveillance, such as the interception of communications, cannot mean that an individual should be able to foresee when the authorities are likely to intercept his communications so that he can adapt his conduct accordingly. However, especially where a power vested in the executive is exercised in secret, the risks of arbitrariness are evident. It is therefore essential to have clear, detailed rules on interception of telephone conversations, especially as the technology available for use is continually becoming more sophisticated. The domestic law must be sufficiently clear to give citizens an adequate indication as to the circumstances in which and the conditions on which public authorities are empowered to resort to any such measures ( see Malone, cited above, § 67; Leander v. Sweden, 26 March 1987, § 51, Series A no. 116; Huvig v. France, 24 April 1990, § 29, Series A no. 176 ‑ B; Valenzuela Contreras v. Spain, 30 July 1998, § 46, Reports 1998 ‑ V; Rotaru, cited above, § 55; Weber and Saravia, cited above, § 93; and Association for European Integration and Human Rights and Ekimdzhiev, cited above, § 75). 230. Moreover, since the implementation in practice of measures of secret surveillance of communications is not open to scrutiny by the individuals concerned or the public at large, it would be contrary to the rule of law for the discretion granted to the executive or to a judge to be expressed in terms of an unfettered power. Consequently, the law must indicate the scope of any such discretion conferred on the competent authorities and the manner of its exercise with sufficient clarity to give the individual adequate protection against arbitrary interference (see, among other authorities, Malone, cited above, § 68; Leander, cited above, § 51; Huvig, cited above, § 29; and Weber and Saravia, cited above, § 94). 231. In its case-law on secret measures of surveillance, the Court has developed the following minimum safeguards that should be set out in law in order to avoid abuses of power: the nature of offences which may give rise to an interception order; a definition of the categories of people liable to have their telephones tapped; a limit on the duration of telephone tapping; the procedure to be followed for examining, using and storing the data obtained; the precautions to be taken when communicating the data to other parties; and the circumstances in which recordings may or must be erased or destroyed (see Huvig, cited above, § 34; Amann v. Switzerland [GC], no. 27798/95, §§ 56-58, ECHR 2000 ‑ II; Valenzuela Contreras, cited above, § 46; Prado Bugallo v. Spain, no. 58496/00, § 30, 18 February 2003; Weber and Saravia, cited above, § 95; and Association for European Integration and Human Rights and Ekimdzhiev, cited above, § 76 ). 232. As to the question whether an interference was “necessary in a democratic society” in pursuit of a legitimate aim, the Court has acknowledged that, when balancing the interest of the respondent State in protecting its national security through secret surveillance measures against the seriousness of the interference with an applicant ’ s right to respect for his private life, the national authorities enjoy a certain margin of appreciation in choosing the means for achieving the legitimate aim of protecting national security. However, this margin is subject to European supervision embracing both legislation and decisions applying it. In view of the risk that a system of secret surveillance set up to protect national security may undermine or even destroy democracy under the cloak of defending it, the Court must be satisfied that there are adequate and effective guarantees against abuse. The assessment depends on all the circumstances of the case, such as the nature, scope and duration of the possible measures, the grounds required for ordering them, the authorities competent to authorise, carry out and supervise them, and the kind of remedy provided by national law. The Court has to determine whether the procedures for supervising the ordering and implementation of the restrictive measures are such as to keep the “interference” to what is “necessary in a democratic society” (see Klass and Others, cited above, §§ 49 - 50 and 59; Weber and Saravia, cited above, § 106; Kvasnica v. Slovakia, no. 72094/01, § 80, 9 June 2009; and Kennedy, cited above, §§ 153 - 54). 233. Review and supervision of secret surveillance measures may come into play at three stages: when the surveillance is first ordered, while it is being carried out, or after it has been terminated. As regards the first two stages, the very nature and logic of secret surveillance dictate that not only the surveillance itself but also the accompanying review should be effected without the individual ’ s knowledge. Consequently, since the individual will necessarily be prevented from seeking an effective remedy of his own accord or from taking a direct part in any review proceedings, it is essential that the procedures established should themselves provide adequate and equivalent guarantees safeguarding his rights. In addition, the values of a democratic society must be followed as faithfully as possible in the supervisory procedures if the bounds of necessity, within the meaning of Article 8 § 2, are not to be exceeded. In a field where abuse is potentially so easy in individual cases and could have such harmful consequences for democratic society as a whole, it is in principle desirable to entrust supervisory control to a judge, judicial control offering the best guarantees of independence, impartiality and a proper procedure (see Klass and Others, cited above, §§ 55 - 56). 234. As regards the third stage, after the surveillance has been terminated, the question of subsequent notification of surveillance measures is inextricably linked to the effectiveness of remedies before the courts and hence to the existence of effective safeguards against the abuse of monitoring powers. There is in principle little scope for recourse to the courts by the individual concerned unless the latter is advised of the measures taken without his knowledge and thus able to challenge their legality retrospectively (see Klass and Others, cited above, § 5 7, and Weber and Saravia, cited above, § 135) or, in the alternative, unless any person who suspects that his communications are being or have been intercepted can apply to courts, so that the courts ’ jurisdiction does not depend on notification to the interception subject that there has been an interception of his communications (see Kennedy, cited above, § 167). (ii) Application of the general principles to the present case 235. The Court notes that it has found there to be an interference under Article 8 § 1 in respect of the applicant ’ s general complaint regarding the Russian legislation governing covert interception of mobile-telephone communications. Accordingly, in its examination of the justification for the interference under Article 8 § 2, the Court is required to examine whether the contested legislation itself is in conformity with the Convention. 236. In cases where the legislation permitting secret surveillance is contested before the Court, the lawfulness of the interference is closely related to the question whether the “necessity” test has been complied with and it is therefore appropriate for the Court to address jointly the “in accordance with the law” and “necessity” requirements (see Kennedy, cited above, § 155; see also Kvasnica, cited above, § 84). The “ quality of law ” in this sense implies that the domestic law must not only be accessible and foreseeable in its application, it must also ensure that secret surveillance measures are applied only when “necessary in a democratic society”, in particular by providing for adequate and effective safeguards and guarantees against abuse. 237. It has not been disputed by the parties that interceptions of mobile-telephone communications have a basis in domestic law. They are governed, in particular, by the CCrP and the OSAA, as well as by the Communications Act and the Orders issued by the Ministry of Communications. Furthermore, the Court considers it clear that the surveillance measures permitted by Russian law pursue the legitimate aims of the protection of national security and public safety, the prevention of crime and the protection of the economic well-being of the country (see paragraph 26 above). It therefore remains to be ascertained whether the domestic law is accessible and contains adequate and effective safeguards and guarantees to meet the requirements of “ foreseeability ” and “necessity in a democratic society”. 238. The Court will therefore assess in turn the accessibility of the domestic law, the scope and duration of the secret surveillance measures, the procedures to be followed for storing, accessing, examining, using, communicating and destroying the intercepted data, the authorisation procedures, the arrangements for supervising the implementation of secret surveillance measures, any notification mechanisms and the remedies provided for by national law. ( α ) Accessibility of the domestic law 239. It is common ground between the parties that almost all legal provisions governing secret surveillance – including the CCrP, the OSAA, the Communications Act and the majority of the Orders issued by the Ministry of Communications – have been officially published and are accessible to the public. The parties disputed, however, whether the addendums to Order no. 70 by the Ministry of Communications met the requirements of accessibility. 240. The Court observes that the addendums to Order no. 70 have never been published in a generally accessible official publication, as they were considered to be technical in nature (see paragraph 128 above). 241. The Court accepts that the addendums to Order no. 70 mainly describe the technical requirements for the interception equipment to be installed by communications service providers. At the same time, by requiring that the equipment in issue must ensure that the law-enforcement authorities have direct access to all mobile-telephone communications of all users and must not log or record information about interceptions initiated by the law-enforcement authorities (see paragraphs 115 - 22 above), the addendums to Order no. 70 are capable of affecting the users ’ right to respect for their private life and correspondence. The Court therefore considers that they must be accessible to the public. 242. The publication of the Order in the Ministry of Communications ’ official magazine SvyazInform, distributed through subscription, made it available only to communications specialists rather than to the public at large. At the same time, the Court notes that the text of the Order, with the addendums, can be accessed through a privately maintained online legal database, which reproduced it from the publication in SvyazInform ( see paragraph 115 above). The Court finds the lack of a generally accessible official publication of Order no. 70 regrettable. However, taking into account the fact that it has been published in an official ministerial magazine, combined with the fact that it can be accessed by the general public through an online legal database, the Court does not find it necessary to pursue further the issue of the accessibility of the domestic law. It will concentrate instead on the requirements of “foreseeability” and “necessity”. (β) Scope of application of secret surveillance measures 243. The Court reiterates that national law must define the scope of application of secret surveillance measures by giving citizens an adequate indication as to the circumstances in which public authorities are empowered to resort to such measures – in particular by clearly setting out the nature of the offences which may give rise to an interception order and a definition of the categories of people liable to have their telephones tapped (see paragraph 231 above). 244. As regards the nature of the offences, the Court emphasises that the condition of foreseeability does not require States to set out exhaustively, by name, the specific offences which may give rise to interception. However, sufficient detail should be provided on the nature of the offences in question (see Kennedy, cited above, § 159). Both the OSAA and the CCrP provide that telephone and other communications may be intercepted in connection with an offence of medium severity, a serious offence or an especially serious criminal offence – that is, an offence for which the Criminal Code prescribes a maximum penalty of more than three years ’ imprisonment – which has been already committed, is being committed or being plotted ( see paragraphs 31 - 33 above). The Court considers that the nature of the offences which may give rise to an interception order is sufficiently clear. At the same time it notes with concern that Russian law allows secret interception of communications in respect of a very wide range of criminal offences, including for example, as pointed out by the applicant, pickpocketing (see paragraph 182 above; see also, for similar reasoning, Iordachi and Others, cited above, §§ 43 - 44). 245. The Court further notes that interceptions may be ordered not only in respect of a suspect or an accused, but also in respect of a person who may have information about an offence or may have other information relevant to the criminal case (see paragraph 32 above). The Court has earlier found that interception measures in respect of a person who was not suspected of any offence but could possess information about such an offence might be justified under Article 8 of the Convention (see Greuter, cited above ). At the same time, the Court notes the absence of any clarifications in Russian legislation or established case-law as to how the terms “ a person who may have information about a criminal offence” and “a person who may have information relevant to the criminal case” are to be applied in practice (see, for similar reasoning, Iordachi and Others, cited above, § 44). 246. The Court also observes that, in addition to interceptions for the purposes of preventing or detecting criminal offences, the OSAA also provides that telephone or other communications may be intercepted following the receipt of information about events or activities endangering Russia ’ s national, military, economic or ecological security ( see paragraph 31 above). Which events or activities may be considered as endangering such types of security interests is not defined anywhere in Russian law. 247. The Court has previously found that the requirement of “foreseeability” of the law does not go so far as to compel States to enact legal provisions listing in detail all conduct that may prompt a decision to subject an individual to secret surveillance on “national security” grounds. By their very nature, threats to national security may vary in character and may be unanticipated or difficult to define in advance (see Kennedy, cited above, § 159). At the same time, the Court has also emphasised that in matters affecting fundamental rights it would be contrary to the rule of law, one of the basic principles of a democratic society enshrined in the Convention, for a discretion granted to the executive in the sphere of national security to be expressed in terms of unfettered power. Consequently, the law must indicate the scope of any such discretion conferred on the competent authorities and the manner of its exercise with sufficient clarity, having regard to the legitimate aim of the measure in question, to give the individual adequate protection against arbitrary interference (see Liu v. Russia, no. 42086/05, § 56, 6 December 2007, with further references). 248. It is significant that the OSAA does not give any indication of the circumstances under which an individual ’ s communications may be intercepted on account of events or activities endangering Russia ’ s national, military, economic or ecological security. It leaves the authorities an almost unlimited degree of discretion in determining which events or acts constitute such a threat and whether that threat is serious enough to justify secret surveillance, thereby creating possibilities for abuse ( see, for similar reasoning, Iordachi and Others, cited above, § 46). 249. That being said, the Court does not lose sight of the fact that prior judicial authorisation for interceptions is required in Russia. Such judicial authorisation may serve to limit the law-enforcement authorities ’ discretion in interpreting the broad terms of “ a person who may have information about a criminal offence”, “a person who may have information relevant to the criminal case”, and “events or activities endangering Russia ’ s national, military, economic or ecological security” by following an established judicial interpretation of the terms or an established practice to verify whether sufficient reasons for intercepting a specific individual ’ s communications exist in each case. The Court accepts that the requirement of prior judicial authorisation constitutes an important safeguard against arbitrariness. The effectiveness of that safeguard will be examined below. ( γ ) The duration of secret surveillance measures 250. The Court has held that it is not unreasonable to leave the overall duration of interception to the discretion of the relevant domestic authorities which have competence to issue and renew interception warrants, provided that adequate safeguards exist, such as a clear indication in the domestic law of the period after which an interception warrant will expire, the conditions under which a warrant can be renewed and the circumstances in which it must be cancelled (see Kennedy, cited above, § 161; see also Klass and Others, cited above, § 52, and Weber and Saravia, cited above, § 98 ). 251. As regards the first safeguard, both the CCrP and the OSAA provide that interceptions may be authorised by a judge for a period not exceeding six months (see paragraphs 38 and 47 above). There is therefore a clear indication in the domestic law of the period after which an interception authorisation will expire. Secondly, the conditions under which an authorisation can be renewed are also clearly set out in law. In particular, under both the CCrP and the OSAA a judge may extend interception for a maximum of six months at a time, after a fresh examination of all the relevant materials ( ibid .). However, as regards the third safeguard concerning the circumstances in which the interception must be discontinued, the Court notes that the requirement to discontinue interception when no longer necessary is mentioned in the CCrP only. Regrettably, the OSAA does not contain such a requirement ( ibid .). In practice, this means that interceptions in the framework of criminal proceedings are attended by more safeguards than interceptions conducted outside such a framework, in particular in connection with “events or activities endangering national, military, economic or ecological security”. 252. The Court concludes from the above that, while Russian law contains clear rules on the duration and renewal of interceptions providing adequate safeguards against abuse, the OSAA provisions on discontinuing surveillance measures do not provide sufficient guarantees against arbitrary interference. (δ) Procedures to be followed for storing, accessing, examining, using, communicating and destroying the intercepted data 253. Russian law stipulates that data collected as a result of secret surveillance measures constitute a State secret and are to be sealed and stored under conditions excluding any risk of unauthorised access. They may be disclosed to those State officials who genuinely need the data for the performance of their duties and have the appropriate level of security clearance. Steps must be taken to ensure that only the amount of information needed by the recipient to perform his duties is disclosed, and no more. The official responsible for ensuring that the data are securely stored and inaccessible to those without the necessary security clearance is clearly defined (see paragraphs 51 - 57 above). Domestic law also sets out the conditions and procedures for communicating intercepted data containing information about a criminal offence to the prosecuting authorities. It describes, in particular, the requirements for their secure storage and the conditions for their use as evidence in criminal proceedings (see paragraphs 58 - 64 above ). The Court is satisfied that Russian law contains clear rules governing the storage, use and communication of intercepted data, making it possible to minimise the risk of unauthorised access or disclosure (see, for similar reasoning, Kennedy, cited above, §§ 1 62 - 63). 254. As far as the destruction of intercept material is concerned, domestic law provides that it must be destroyed after six months of storage if the person concerned has not been charged with a criminal offence. If the person has been charged with a criminal offence, the trial judge must make a decision, at the end of the criminal proceedings, on the further storage and destruction of the intercept material used in evidence (see paragraphs 65 - 66 above). 255. As regards the cases where the person concerned has not been charged with a criminal offence, the Court is not convinced by the applicant ’ s argument that Russian law permits storage of the intercept material beyond the statutory time-limit (see paragraph 188 above). It appears that the provision referred to by the applicant does not apply to the specific case of storage of data collected as a result of interception of communications. The Court considers the six-month storage time-limit set out in Russian law for such data reasonable. At the same time, it deplores the lack of a requirement to destroy immediately any data that are not relevant to the purpose for which they have been obtained (compare Klass and Others, cited above, § 52, and Kennedy, cited above, § 162 ). The automatic storage for six months of clearly irrelevant data cannot be considered justified under Article 8. 256. Furthermore, as regards the cases where the person has been charged with a criminal offence, the Court notes with concern that Russian law allows unlimited discretion to the trial judge to store or to destroy the data used in evidence after the end of the trial (see paragraph 66 above ). Russian law does not give citizens any indication as to the circumstances in which the intercept material may be stored after the end of the trial. The Court therefore considers that the domestic law is not sufficiently clear on this point. ( ε ) Authorisation of interceptions Authorisation procedures 257. The Court will take into account a number of factors in assessing whether the authorisation procedures are capable of ensuring that secret surveillance is not ordered haphazardly, irregularly or without due and proper consideration. These factors include, in particular, the authority competent to authorise the surveillance, its scope of review and the content of the interception authorisation. 258. As regards the authority competent to authorise the surveillance, authorising of telephone tapping by a non-judicial authority may be compatible with the Convention (see, for example, Klass and Others, cited above, § 51; Weber and Saravia, cited above, § 115; and Kennedy, cited above, § 31), provided that that authority is sufficiently independent from the executive ( see Dumitru Popescu v. Romania (no. 2), no. 71525/01, § 71, 26 April 2007). 259. Russian law contains an important safeguard against arbitrary or indiscriminate secret surveillance. It dictates that any interception of telephone or other communications must be authorised by a court ( see paragraphs 34 and 44 above ). The law-enforcement agency seeking authorisation for interception must submit a reasoned request to that effect to a judge, who may require the agency to produce supporting materials ( see paragraphs 37 and 46 above). The judge must give reasons for the decision to authorise interceptions (see paragraphs 38 and 44 above). 260. Turning now to the authorisation authority ’ s scope of review, the Court reiterates that it must be capable of verifying the existence of a reasonable suspicion against the person concerned, in particular, whether there are factual indications for suspecting that person of planning, committing or having committed criminal acts or other acts that may give rise to secret surveillance measures, such as, for example, acts endangering national security. It must also ascertain whether the requested interception meets the requirement of “ necessity in a democratic society”, as provided by Article 8 § 2 of the Convention, including whether it is proportionate to the legitimate aims pursued, by verifying, for example, whether it is possible to achieve the aims by less restrictive means (see Klass and Others, cited above, § 51; Association for European Integration and Human Rights and Ekimdzhiev, cited above, § § 79 - 80; Iordachi and Others, cited above, § 51; and Kennedy, cited above, §§ 31 - 32). 261. The Court notes that in Russia judicial scrutiny is limited in scope. Thus, materials containing information about undercover agents or police informers or about the organisation and tactics of operational-search measures may not be submitted to the judge and are therefore excluded from the court ’ s scope of review (see paragraph 37 above). The Court considers that the failure to disclose the relevant information to the courts deprives them of the power to assess whether there is a sufficient factual basis to suspect the person in respect of whom operational-search measures are requested of a criminal offence or of activities endangering national, military, economic or ecological security (see, mutatis mutandis, Liu, cited above, §§ 59-63). The Court has earlier found that there are techniques that can be employed which both accommodate legitimate security concerns about the nature and sources of intelligence information and yet accord the individual a substantial measure of procedural justice (see, mutatis mutandis, Chahal v. the United Kingdom, 15 November 1996, § 131, Reports 1996 ‑ V ). 262. Furthermore, the Court observes that in Russia the judges are not instructed, either by the CCrP or by the OSAA, to verify the existence of a “reasonable suspicion” against the person concerned or to apply the “necessity” and “proportionality” test. At the same time, the Court notes that the Constitutional Court has explained in its decisions that the burden of proof is on the requesting agency to show that interception is necessary and that the judge examining an interception request should verify the grounds for that measure and grant authorisation only if he is persuaded that interception is lawful, necessary and justified. The Constitutional Court has also held that the judicial decision authorising interception should contain reasons and refer to specific grounds for suspecting that a criminal offence has been committed, is being committed, or is being plotted or that activities endangering national, military, economic or ecological security are being carried out, as well as that the person in respect of whom interception is requested is involved in these criminal or otherwise dangerous activities (see paragraphs 40 - 42 above). The Constitutional Court has therefore recommended, in substance, that when examining interception authorisation requests Russian courts should verify the existence of a reasonable suspicion against the person concerned and should authorise interception only if it meets the requirements of necessity and proportionality. 263. However, the Court observes that domestic law does not explicitly require the courts of general jurisdiction to follow the Constitutional Court ’ s opinion as to how a legislative provision should be interpreted if such opinion has been expressed in a decision rather than a judgment (see paragraph 106 above). Indeed, the materials submitted by the applicant show that the domestic courts do not always follow the above - mentioned recommendations of the Constitutional Court, all of which were contained in decisions rather than in judgments. Thus, it transpires from the analytical notes issued by District Courts that interception requests are often not accompanied by any supporting materials, that the judges of these District Courts never request the interception agency to submit such materials and that a mere reference to the existence of information about a criminal offence or activities endangering national, military, economic or ecological security is considered to be sufficient for the authorisation to be granted. An interception request is rejected only if it is not signed by a competent person, contains no reference to the offence in connection with which interception is to be ordered, or concerns a criminal offence in respect of which interception is not permitted under domestic law ( see paragraph 193 above). Thus, the analytical notes issued by District Courts, taken together with the statistical information for the period from 2009 - 13 provided by the applicant (see paragraph 194 above), indicate that in their everyday practice Russian courts do not verify whether there is a “reasonable suspicion” against the person concerned and do not apply the “ necessity ” and “ proportionality ” test. 264. Lastly, as regards the content of the interception authorisation, it must clearly identify a specific person to be placed under surveillance or a single set of premises as the premises in respect of which the authorisation is ordered. Such identification may be made by names, addresses, telephone numbers or other relevant information ( see Klass and Others, cited above, § 51; Liberty and Others, cited above, § § 64 - 65; Dumitru Popescu, cited above, § 78; Association for European Integration and Human Rights and Ekimdzhiev, cited above, § 80; and Kennedy, cited above, § 160). 265. The Court observes that the CCrP requires that a request for interception authorisation must clearly mention a specific person whose communications are to be intercepted, as well as the duration of the interception measure (see paragraph 46 above). By contrast, the OSAA does not contain any requirements either with regard to the content of the request for interception or to the content of the interception authorisation. As a result, courts sometimes grant interception authorisations which do not mention a specific person or telephone number to be tapped, but authorise interception of all telephone communications in the area where a criminal offence has been committed. Some authorisations do not mention the duration for which interception is authorised (see paragraph 193 above). The Court considers that such authorisations, which are not clearly prohibited by the OSAA, grant a very wide discretion to the law ‑ enforcement authorities as to which communications to intercept, and for how long. 266. The Court further notes that in urgent cases it is possible to intercept communications without prior judicial authorisation for up to forty-eight hours. A judge must be informed of any such case within twenty-four hours from the commencement of the interception. If no judicial authorisation has been issued within forty-eight hours, the interception must be stopped immediately (see paragraph 35 above). The Court has already examined the “urgency” procedure provided for in Bulgarian law and found that it was compatible with the Convention ( see Association for European Integration and Human Rights and Ekimdzhiev, cited above, § § 16 and 82). However, in contrast to the Bulgarian provision, the Russian “ urgent procedure ” does not provide for sufficient safeguards to ensure that it is used sparingly and only in duly justified cases. Thus, although in the criminal sphere the OSAA limits recourse to the urgency procedure to cases where there exists an immediate danger that a serious or especially serious offence may be committed, it does not contain any such limitations in respect of secret surveillance in connection with events or activities endangering national, military, economic or ecological security. Domestic law does not limit the use of the urgency procedure to cases involving an immediate serious danger to national, military, economic or ecological security. It leaves the authorities an unlimited degree of discretion in determining in which situations it is justified to use the non-judicial urgent procedure, thereby creating possibilities for abusive recourse to it ( ibid. ). Furthermore, although Russian law requires that a judge be immediately informed of each instance of urgent interception, his power is limited to authorising the extension of the interception measure beyond forty-eight hours. He has no power to assess whether the use of the urgent procedure was justified or to decide whether the material obtained during the previous forty-eight hours is to be kept or destroyed (see, by contrast, Association for European Integration and Human Rights and Ekimdzhiev, cited above, § 16). Russian law does not therefore provide for an effective judicial review of the urgency procedure. 267. In view of the above considerations the Court considers that the authorisation procedures provided for by Russian law are not capable of ensuring that secret surveillance measures are not ordered haphazardly, irregularly or without due and proper consideration. The authorities ’ access to communications 268. The Court takes note of the applicant ’ s argument that the security services and the police have the technical means to intercept mobile-telephone communications without obtaining judicial authorisation, as they have direct access to all communications and as their ability to intercept the communications of a particular individual or individuals is not conditional on providing an interception authorisation to the communications service provider. 269. The Court considers that the requirement to show an interception authorisation to the communications service provider before obtaining access to a person ’ s communications is one of the important safeguards against abuse by the law-enforcement authorities, ensuring that proper authorisation is obtained in all cases of interception. In Russia the law ‑ enforcement authorities are not required under domestic law to show the judicial authorisation to the communications service provider before obtaining access to a person ’ s communications (see, by contrast, the EU Council Resolution, paragraph 145 above), except in connection with the monitoring of communications - related data under the CCrP ( see paragraph 48 above). Indeed, pursuant to Orders issued by the Ministry of Communications, in particular the addendums to Order no. 70, communications service providers must install equipment giving the law ‑ enforcement authorities direct access to all mobile-telephone communications of all users (see paragraphs 115 - 22 above). The communications service providers also have an obligation under Order no. 538 to create databases storing information about all subscribers, and the services provided to them, for three years; the secret services have direct remote access to those databases (see paragraphs 132 - 33 above ). The law-enforcement authorities thus have direct access to all mobile-telephone communications and related communications data. 270. The Court considers that the manner in which the system of secret surveillance operates in Russia gives the security services and the police technical means to circumvent the authorisation procedure and to intercept any communications without obtaining prior judicial authorisation. Although the possibility of improper action by a dishonest, negligent or overzealous official can never be completely ruled out whatever the system (see Klass and Others, cited above, § 59), the Court considers that a system, such as the Russian one, which enables the secret services and the police to intercept directly the communications of each and every citizen without requiring them to show an interception authorisation to the communications service provider, or to anyone else, is particularly prone to abuse. The need for safeguards against arbitrariness and abuse appears therefore to be particularly great. 271. The Court will therefore examine with particular attention whether the supervision arrangements provided by Russian law are capable of ensuring that all interceptions are performed lawfully on the basis of proper judicial authorisation. ( ζ ) Supervision of the implementation of secret surveillance measures 272. The Court notes at the outset that Order no. 70 requires that the equipment installed by the communications service providers not record or log information about interceptions (see paragraph 120 above ). The Court has found that an obligation on the intercepting agencies to keep records of interceptions is particularly important to ensure that the supervisory body has effective access to details of surveillance activities undertaken ( see Kennedy, cited above, § 165). The prohibition on logging or recording interceptions set out in Russian law makes it impossible for the supervising authority to discover interceptions carried out without proper judicial authorisation. Combined with the law-enforcement authorities ’ technical ability, pursuant to the same Order, to intercept directly all communications, this provision renders any supervision arrangements incapable of detecting unlawful interceptions and therefore ineffective. 273. As regards supervision of interceptions carried out on the basis of proper judicial authorisations, the Court will examine whether the supervision arrangements existing in Russia are capable of ensuring that the statutory requirements relating to the implementation of the surveillance measures, the storage, access to, use, processing, communication and destruction of intercept material are routinely respected. 274. A court which has granted authorisation for interception has no competence to supervise its implementation. It is not informed of the results of the interceptions and has no power to review whether the requirements of the decision granting authorisation were complied with. Nor do Russian courts in general have competence to carry out the overall supervision of interceptions. Judicial supervision is limited to the initial authorisation stage. Subsequent supervision is entrusted to the President, Parliament, the government, the Prosecutor General and competent lower-level prosecutors. 275. The Court has earlier found that, although it is in principle desirable to entrust supervisory control to a judge, supervision by non-judicial bodies may be considered compatible with the Convention, provided that the supervisory body is independent of the authorities carrying out the surveillance, and is vested with sufficient powers and competence to exercise an effective and continuous control (see Klass and Others, cited above, § 56). 276. As far as the President, Parliament and the Government are concerned, Russian law does not set out the manner in which they may supervise interceptions. There are no publicly available regulations or instructions describing the scope of their review, the conditions under which it may be carried out, the procedures for reviewing the surveillance measures or for remedying the breaches detected (see, for similar reasoning, Association for European Integration and Human Rights and Ekimdzhiev, cited above, § 88). 277. As regards supervision of interceptions by prosecutors, the Court observes that domestic law sets out the scope of, and the procedures for, prosecutors ’ supervision of operational-search activities (see paragraphs 69 ‑ 80 above ). It stipulates that prosecutors may carry out routine and ad hoc inspections of agencies performing operational-search activities and are entitled to study the relevant documents, including confidential ones. They may take measures to stop or remedy the detected breaches of law and to bring those responsible to account. They must submit biannual reports detailing the results of the inspections to the Prosecutor General ’ s Office. The Court accepts that a legal framework exists which provides, at least in theory, for some supervision by prosecutors of secret surveillance measures. It must next be examined whether the prosecutors are independent of the authorities carrying out the surveillance, and are vested with sufficient powers and competence to exercise effective and continuous control. 278. As to the independence requirement, in previous cases the Court has taken into account the manner of appointment and the legal status of the members of the supervisory body. In particular, it found sufficiently independent bodies composed of members of parliament of both the majority and the opposition, or of persons qualified to hold judicial office, appointed either by Parliament or by the Prime Minister (see, for example, Klass and Others, cited above, §§ 21 and 56; Weber and Saravia, cited above, §§ 24 - 25 and 117; Leander, cited above, § 65; L. v. Norway, no. 13564/88, Commission decision of 8 June 1990, Decisions and Reports 65; and Kennedy, cited above, §§ 57 and 166). In contrast, a Minister for Internal Affairs – who was not only a political appointee and a member of the executive, but also directly involved in the commissioning of special means of surveillance – was found to be insufficiently independent (see Association for European Integration and Human Rights and Ekimdzhiev, cited above, §§ 85 and 87). Similarly, a Prosecutor General and competent lower-level prosecutors were also found to be insufficiently independent (see Iordachi and Others, cited above, § 47). 279. In contrast to the supervisory bodies cited above, in Russia prosecutors are appointed and dismissed by the Prosecutor General after consultation with the regional executive authorities (see paragraph 70 above). This fact may raise doubts as to their independence from the executive. 280. Furthermore, it is essential that any role prosecutors have in the general protection of human rights does not give rise to any conflict of interest (see Menchinskaya v. Russia, no. 42454/02, §§ 19 and 38, 15 January 2009). The Court observes that prosecutor ’ s offices do not specialise in supervision of interceptions (see paragraph 71 above). Such supervision is only one part of their broad and diversified functions, which include prosecution and supervision of criminal investigations. In the framework of their prosecuting functions, prosecutors give their approval to all interception requests lodged by investigators in the framework of criminal proceedings (see paragraph 44 above). This blending of functions within one prosecutor ’ s office, with the same office giving approval to requests for interceptions and then supervising their implementation, may also raise doubts as to prosecutors ’ independence (see, by way of contrast, Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, § 215, 10 January 2012, concerning supervision by prosecutors of detention facilities, where it was found that prosecutors complied with the requirement of independence vis-à-vis the penitentiary system ’ s bodies). 281. Turning now to the prosecutors ’ powers and competences, the Court notes that it is essential that the supervisory body has access to all relevant documents, including closed materials and that all those involved in interception activities have a duty to disclose to it any material it required ( see Kennedy, cited above, § 166). Russian law stipulates that prosecutors are entitled to study relevant documents, including confidential ones. It is, however, important to note that information about the security services ’ undercover agents, and about the tactics, methods and means used by them, is outside the scope of prosecutors ’ supervision (see paragraph 74 above ). The scope of their supervision is therefore limited. Moreover, interceptions performed by the FSB in the sphere of counter - intelligence may be inspected only following an individual complaint (see paragraph 76 above ). As individuals are not notified of interceptions (see paragraph 81 above and paragraph 289 below), it is unlikely that such a complaint will ever be lodged. As a result, surveillance measures related to counter-intelligence de facto escape supervision by prosecutors. 282. The supervisory body ’ s powers with respect to any breaches detected are also an important element for the assessment of the effectiveness of its supervision (see, for example, Klass and Others, cited above, § 53, where the intercepting agency was required to terminate the interception immediately if the G10 Commission found it illegal or unnecessary; and Kennedy, cited above, § 168, where any intercept material was to be destroyed as soon as the Interception of Communications Commissioner discovered that the interception was unlawful). The Court is satisfied that prosecutors have certain powers with respect to the breaches detected by them. Thus, they may take measures to stop or remedy the detected breaches of law and to bring those responsible to account (see paragraph 79 above ). However, there is no specific provision requiring destruction of the unlawfully obtained intercept material (see Kennedy, cited above, § 168 ). 283. The Court must also examine whether the supervisory body ’ s activities are open to public scrutiny ( see, for example, L. v. Norway, cited above, where the supervision was performed by the Control Committee, which reported annually to the government and whose reports were published and discussed by Parliament; Kennedy, cited above, § 166, where the supervision of interceptions was performed by the Interception of Communications Commissioner, who reported annually to the Prime Minister, his report being a public document laid before Parliament; and, by contrast, Association for European Integration and Human Rights and Ekimdzhiev, cited above, § 88, where the Court found fault with the system where neither the Minister for Internal Affairs nor any other official was required to report regularly to an independent body or to the general public on the overall operation of the system or on the measures applied in individual cases ). In Russia, prosecutors must submit biannual reports detailing the results of the inspections to the Prosecutor General ’ s Office. However, these reports concern all types of operational-search measures, amalgamated together, without interceptions being treated separately from other measures. Moreover, the reports contain only statistical information about the number of inspections of operational-search measures carried out and the number of breaches detected, without specifying the nature of the breaches or the measures taken to remedy them. It is also significant that the reports are confidential documents. They are not published or otherwise accessible to the public (see paragraph 80 above). It follows that in Russia supervision by prosecutors is conducted in a manner which is not open to public scrutiny and knowledge. 284. Lastly, the Court notes that it is for the Government to illustrate the practical effectiveness of the supervision arrangements with appropriate examples (see, mutatis mutandis, Ananyev and Others, cited above, §§ 109 ‑ 10 ). However, they did not submit any inspection reports or decisions by prosecutors ordering the taking of measures to stop or remedy a detected breach of law. It follows that the Government did not demonstrate that prosecutors ’ supervision of secret surveillance measures is effective in practice. The Court also takes note in this connection of the documents submitted by the applicant illustrating prosecutors ’ inability to obtain access to classified materials relating to interceptions ( see paragraph 14 above). That example also raises doubts as to the effectiveness of supervision by prosecutors in practice. 285. In view of the defects identified above, and taking into account the particular importance of supervision in a system where law-enforcement authorities have direct access to all communications, the Court considers that the prosecutors ’ supervision of interceptions as it is currently organised is not capable of providing adequate and effective guarantees against abuse. ( η ) Notification of interception of communications and available remedies 286. The Court will now turn to the issue of notification of interception of communications which is inextricably linked to the effectiveness of remedies before the courts (see the case-law cited in paragraph 234 above). 287. It may not be feasible in practice to require subsequent notification in all cases. The activity or danger against which a particular series of surveillance measures is directed may continue for years, even decades, after the suspension of those measures. Subsequent notification to each individual affected by a suspended measure might well jeopardise the long-term purpose that originally prompted the surveillance. Furthermore, such notification might serve to reveal the working methods and fields of operation of the intelligence services and even possibly to identify their agents. Therefore, the fact that persons concerned by secret surveillance measures are not subsequently notified once surveillance has ceased cannot by itself warrant the conclusion that the interference was not “necessary in a democratic society”, as it is the very absence of knowledge of surveillance which ensures the efficacy of the interference. As soon as notification can be carried out without jeopardising the purpose of the restriction after the termination of the surveillance measure, information should, however, be provided to the persons concerned (see Klass and Others, cited above, § 58, and Weber and Saravia, cited above, § 135). The Court also takes note of the Recommendation of the Committee of Ministers regulating the use of personal data in the police sector, which provides that where data concerning an individual have been collected and stored without his knowledge, and unless the data are deleted, he should be informed, where practicable, that information is held about him as soon as the object of the police activities is no longer likely to be prejudiced (§ 2.2, see paragraph 143 above). 288. In Klass and Others and Weber and Saravia, the Court examined German legislation which provided for notification of surveillance as soon as that could be done after its termination without jeopardising its purpose. The Court took into account that it was an independent authority, the G10 Commission, which had the power to decide whether an individual being monitored was to be notified of a surveillance measure. The Court found that the provision in question ensured an effective notification mechanism which contributed to keeping the interference with the secrecy of telecommunications within the limits of what was necessary to achieve the legitimate aims pursued (see Klass and Others, cited above, § 58, and Weber and Saravia, cited above, § 136). In Association for European Integration and Human Rights and Ekimdzhiev and Dumitru Popescu, the Court found that the absence of a requirement to notify the subject of interception at any point was incompatible with the Convention, in that it deprived the interception subject of an opportunity to seek redress for unlawful interferences with his Article 8 rights and rendered the remedies available under the national law theoretical and illusory rather than practical and effective. The national law thus eschewed an important safeguard against the improper use of special means of surveillance (see Association for European Integration and Human Rights and Ekimdzhiev, cited above, §§ 90 - 91, and Dumitru Popescu, cited above, § 77). By contrast, in Kennedy the absence of a requirement to notify the subject of interception at any point in time was compatible with the Convention, because in the United Kingdom any person who suspected that his communications were being or had been intercepted could apply to the Investigatory Powers Tribunal, whose jurisdiction did not depend on notification to the interception subject that there had been an interception of his communications (see Kennedy, cited above, § 167). 289. Turning now to the circumstances of the present case, the Court observes that in Russia persons whose communications have been intercepted are not notified of this fact at any point or under any circumstances. It follows that, unless criminal proceedings have been opened against the interception subject and the intercepted data have been used in evidence, or unless there has been a leak, the person concerned is unlikely ever to find out that his communications have been intercepted. 290. The Court takes note of the fact that a person who has somehow learned that his communications have been intercepted may request information about the corresponding data (see paragraph 81 above ). It is worth noting in this connection that in order to be entitled to lodge such a request the person must be in possession of the facts of the operational-search measures to which he was subjected. It follows that access to the information is conditional on the person ’ s ability to prove that his communications were intercepted. Furthermore, the interception subject is not entitled to obtain access to documents relating to interception of his communications; he is at best entitled to receive “information” about the collected data. Such information is provided only in very limited circumstances, namely if the person ’ s guilt has not been proved in accordance with the procedure prescribed by law, that is, he has not been charged or the charges have been dropped on the ground that the alleged offence was not committed or that one or more elements of a criminal offence were missing. It is also significant that only information that does not contain State secrets may be disclosed to the interception subject and that under Russian law information about the facilities used in operational-search activities, the methods employed, the officials involved and the data collected constitutes a State secret ( see paragraph 52 above ). In view of the above features of Russian law, the possibility of obtaining information about interceptions appears to be ineffective. 291. The Court will bear the above factors – the absence of notification and the lack of an effective possibility of requesting and obtaining information about interceptions from the authorities – in mind when assessing the effectiveness of remedies available under Russian law. 292. Russian law provides that a person claiming that his rights have been or are being violated by a State official performing operational-search activities may complain to the official ’ s superior, a prosecutor or a court (see paragraph 83 above). The Court reiterates that a hierarchical appeal to a direct supervisor of the authority whose actions are being challenged does not meet the requisite standards of independence needed to constitute sufficient protection against the abuse of authority (see, for similar reasoning, Khan v. the United Kingdom, no. 35394/97, §§ 45-47, ECHR 2000 ‑ V; Dumitru Popescu, cited above, § 72; and Avanesyan, cited above, § 32 ). Prosecutors also lack independence and have a limited scope of review, as demonstrated above (see paragraphs 277 - 85 above). It remains to be ascertained whether a complaint to a court may be regarded as an effective remedy. 293. There are four judicial procedures which, according to the Government, may be used by a person wishing to complain of the interception of his communications: an appeal, a cassation appeal or a supervisory-review complaint against the judicial decision authorising interception of communications; a judicial - review complaint under Article 125 of the CCrP; a judicial - review complaint under the Judicial Review Act and Chapter 25 of the CCP; and a civil tort claim under Article 1069 of the Civil Code. The Court will examine them in turn. 294. The first of the procedures invoked by the Government is an appeal, cassation appeal or supervisory-review complaint against the judicial decision authorising interception of communications. However, the Constitutional Court stated clearly that the interception subject had no right to appeal against the judicial decision authorising interception of his communications (see paragraph 40 above; see also Avanesyan, cited above, § 30 ). Domestic law is silent on the possibility of lodging a cassation appeal. Given that the Government did not submit any examples of domestic practice on examination of cassation appeals, the Court has serious doubts as to the existence of a right to lodge a cassation appeal against a judicial decision authorising interception of communications. At the same time, the interception subject is clearly entitled to lodge a supervisory - review complaint (see paragraph 43 above ). However, in order to lodge a supervisory - review complaint against the judicial decision authorising interception of communications, the person concerned had to be aware that such a decision existed. Although the Constitutional Court has held that it is not necessary to attach a copy of the contested judicial decision to the supervisory - review complaint ( ibid. ), it is difficult to imagine how a person can lodge such a complaint without having at least the minimum information about the decision he is challenging, such as its date and the court which has issued it. In the absence of notification of surveillance measures under Russian law, an individual would hardly ever be able to obtain that information unless it were to be disclosed in the context of criminal proceedings against him or there was some indiscretion which resulted in disclosure. 295. Further, a complaint under Article 125 of the CCrP may be lodged only by a participant to criminal proceedings while a pre-trial investigation is pending (see paragraphs 88 - 89 above ). This remedy is therefore available only to persons who have learned of the interception of their communications in the framework of criminal proceedings against them. It cannot be used by a person against whom no criminal proceedings have been brought following the interception of his communications and who does not know whether his communications were intercepted. It is also worth noting that the Government did not submit any judicial decisions examining a complaint under Article 125 of the CCrP concerning the interception of communications. They therefore failed to illustrate the practical effectiveness of the remedy invoked by them with examples from the case-law of the domestic courts (see, for similar reasoning, Rotaru, cited above, § 70, and Ananyev and Others, cited above, §§ 109 - 10). 296. As regards the judicial - review complaint under the Judicial Review Act, Chapter 25 of the CCP and the new Code of Administrative Procedure and a civil tort claim under Article 1069 of the Civil Code, the burden of proof is on the claimant to show that the interception has taken place and that his rights were thereby breached (see paragraphs 85, 95 - 96 and 105 above ). In the absence of notification or some form of access to official documents relating to the interceptions, such a burden of proof is virtually impossible to satisfy. Indeed, the applicant ’ s judicial complaint was rejected by the domestic courts on the ground that he had failed to prove that his telephone communications had been intercepted (see paragraphs 11 and 13 above). The Court notes that the Government submitted several judicial decisions taken under Chapter 25 of the CCP or Article 1069 of the Civil Code (see paragraphs 220 - 23 above). However, all of those decisions, with one exception, concern searches or seizures of documents or objects, that is, operational-search measures carried out with the knowledge of the person concerned. Only one judicial decision concerns interception of communications. In that case the intercept subject was able to discharge the burden of proof because she had learned of the interception of her communications in the course of criminal proceedings against her. 297. Further, the Court takes note of the Government ’ s argument that Russian law provides for criminal remedies for abuse of power, unauthorised collection or dissemination of information about a person ’ s private and family life and breach of citizens ’ right to privacy of communications. For the reasons set out in the preceding paragraphs these remedies are also available only to persons who are capable of submitting to the prosecuting authorities at least some factual information about the interception of their communications (see paragraph 24 above). 298. The Court concludes from the above that the remedies referred to by the Government are available only to persons who are in possession of information about the interception of their communications. Their effectiveness is therefore undermined by the absence of a requirement to notify the subject of interception at any point, or an adequate possibility of requesting and obtaining information about interceptions from the authorities. Accordingly, the Court finds that Russian law does not provide for an effective judicial remedy against secret surveillance measures in cases where no criminal proceedings were brought against the interception subject. It is not the Court ’ s task in the present case to decide whether these remedies will be effective in cases where an individual learns about the interception of his communications in the course of criminal proceedings against him (see, however, Avanesyan, cited above, where some of these remedies were found to be ineffective in order to complain of an “inspection” of the applicant ’ s flat). 299. Lastly, with respect to the remedies to challenge the alleged insufficiency of safeguards against abuse in Russian law before the Russian courts, the Court is not convinced by the Government ’ s argument that such remedies are effective (see paragraphs 156 and 225 above). As regards the possibility of challenging the OSAA before the Constitutional Court, the Court observes that the Constitutional Court has examined the constitutionality of the OSAA on many occasions and found that it was compatible with the Constitution (see paragraphs 40 - 43, 50, 82 and 85 - 87 above). In such circumstances the Court finds it unlikely that a complaint by the applicant to the Constitutional Court, raising the same issues that have already been examined by it, would have any prospect of success. Nor is the Court convinced that a challenge of Order no. 70 before the Supreme Court or the lower courts would constitute an effective remedy. Indeed, the applicant did challenge Order no. 70 in the domestic proceedings. However, both the District and City Courts found that the applicant had no standing to challenge the Order because the equipment installed pursuant to it did not in itself interfere with the privacy of his communications (see paragraphs 10 ‑ 11 and 13 above). It is also significant that the Supreme Court found that Order no. 70 was technical rather than legal in nature (see paragraph 128 above). 300. In view of the above considerations, the Court finds that Russian law does not provide for effective remedies to a person who suspects that he has been subjected to secret surveillance. By depriving the subject of interception of the effective possibility of challenging interceptions retrospectively, Russian law thus eschews an important safeguard against the improper use of secret surveillance measures. 301. For the above reasons, the Court also rejects the Government ’ s objection as to non-exhaustion of domestic remedies. (θ) Conclusion 302. The Court concludes that Russian legal provisions governing interceptions of communications do not provide for adequate and effective guarantees against arbitrariness and the risk of abuse which is inherent in any system of secret surveillance, and which is particularly high in a system where the secret services and the police have direct access, by technical means, to all mobile-telephone communications. In particular, the circumstances in which public authorities are empowered to resort to secret surveillance measures are not defined with sufficient clarity. Provisions on discontinuation of secret surveillance measures do not provide sufficient guarantees against arbitrary interference. Domestic law permits automatic storage of clearly irrelevant data and is not sufficiently clear as to the circumstances in which the intercept material will be stored and destroyed after the end of a trial. The authorisation procedures are not capable of ensuring that secret surveillance measures are ordered only when “necessary in a democratic society”. The supervision of interceptions, as it is currently organised, does not comply with the requirements of independence, powers and competence which are sufficient to exercise an effective and continuous control, public scrutiny and effectiveness in practice. The effectiveness of the remedies is undermined by the absence of notification at any point of interceptions, or adequate access to documents relating to interceptions. 303. It is significant that the shortcomings in the legal framework as identified above appear to have an impact on the actual operation of the system of secret surveillance which exists in Russia. The Court is not convinced by the Government ’ s assertion that all interceptions in Russia are performed lawfully on the basis of a proper judicial authorisation. The examples submitted by the applicant in the domestic proceedings ( see paragraph 12 above) and in the proceedings before the Court ( see paragraph 197 above) indicate the existence of arbitrary and abusive surveillance practices, which appear to be due to the inadequate safeguards provided by law (see, for similar reasoning, Association for European Integration and Human Rights and Ekimdzhiev, cited above, § 92; and, by contrast, Klass and Others, cited above, § 59, and Kennedy, cited above, §§ 168 - 69). 304. In view of the shortcomings identified above, the Court finds that Russian law does not meet the “quality of law” requirement and is incapable of keeping the “interference” to what is “necessary in a democratic society”. 305. There has accordingly been a violation of Article 8 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 306. The applicant complained that he had no effective remedy for his complaint under Article 8. He relied on Article 13 of the Convention, which reads as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 307. Having regard to the findings under Article 8 of the Convention in paragraphs 286 to 300 above, the Court considers that, although the complaint under Article 13 of the Convention is closely linked to the complaint under Article 8 and therefore has to be declared admissible, it is not necessary to examine it separately (see Liberty and Others, cited above, § 73). III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 308. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 309. The applicant claimed 9, 000 euros (EUR) in respect of non-pecuniary damage. 310. The Government submitted that the claim was excessive, taking into account that the applicant had challenged Russian law in abstracto without being in any way personally affected by it. The finding of a violation would therefore constitute sufficient just satisfaction. 311. The Court reiterates that, in the context of the execution of judgments in accordance with Article 46 of the Convention, a judgment in which it finds a violation of the Convention or its Protocols imposes on the respondent State a legal obligation not just to pay those concerned any sums awarded by way of just satisfaction, but also to choose, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures to be adopted in its domestic legal order to put an end to the violation found by the Court and make all feasible reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach. Furthermore, in ratifying the Convention, the Contracting States undertake to ensure that their domestic law is compatible with it (see Association for European Integration and Human Rights and Ekimdzhiev, cited above, § 111, with further references). 312. The Court considers that the finding of a violation constitutes sufficient just satisfaction for any non-pecuniary damage caused to the applicant. B. Costs and expenses 313. Before the Chamber, the applicant claimed 26,579 Russian roubles (RUB, approximately EUR 670 ) on the date of submission ) for postal and translation expenses. He relied on postal and fax - service invoices and a translation - services contract. 314. Before the Grand Chamber, the applicant claimed 22,800 pounds sterling (GBP, approximately EUR 2 9, 000 on the date of submission ) and EUR 13, 800 for legal fees. He relied on lawyers ’ time-sheets. Relying on bills and invoices, he also claimed GBP 6,833.24 ( approximately EUR 8,700 on the date of submission ) for translation, travelling and other administrative expenses. 315. The Government accepted the claim for costs and expenses made before the Chamber because it was supported by documentary evidence. As regards the claims for costs and expenses made before the Grand Chamber, the Government submitted that the claims had been submitted more than a month after the hearing. As regards the legal fees, the Government submitted that part of those fees covered the work performed by the representatives before the applicant had signed an authority form and that there was no authority form in the name of Ms Levine. Furthermore, the number of representatives and the number of hours spent by them on the preparation of the case had been excessive. There was moreover no evidence that the applicant had paid the legal fees in question or was under a legal or contractual obligation to pay them. As regards the translation and other administrative expenses, the Government submitted that the applicant had not provided any documents showing that he had paid the amounts claimed. Nor had he proved that the translation expenses had indeed been necessary, given that some of the applicant ’ s lawyers spoke Russian. The rates claimed by the translators had been excessive. Lastly, the travelling expenses had also been excessive. 316. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 4 0,000 covering costs under all heads, plus any tax that may be chargeable to the applicant. C. Default interest 317. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 8 of the Convention, finding that the Russian legal provisions governing interception of communications did not provide for adequate and effective guarantees against arbitrariness and the risk of abuse which was inherent in any system of secret surveillance, and which was particularly high in a system such as in Russia where the secret services and the police had direct access, by technical means, to all mobile telephone communications. In particular, the Court found shortcomings in the legal framework in the following areas: the circumstances in which public authorities in Russia are empowered to resort to secret surveillance measures; the duration of such measures, notably the circumstances in which they should be discontinued; the procedures for authorising interception as well as for storing and destroying the intercepted data; the supervision of the interception. Moreover, the effectiveness of the remedies available to challenge interception of communications was undermined by the fact that they were available only to persons who were able to submit proof of interception and that obtaining such proof was impossible in the absence of any notification system or possibility of access to information about interception. |
661 | Private persons | II. RELEVANT DOMESTIC LAW 23. At the time of the national courts'consideration of the present case, the right of access between a parent and a child was governed by sections 44 and 44A of the Children Act 1981 ( Lov om barn og foreldre ( barnelova )). Under section 44 the child had a right of access to both parents, even if they lived apart, and the parents had mutual responsibility for implementing the right of access. Under section 44A the parent with whom the child did not live had a right of access to the child unless otherwise agreed or determined. The provision contained more detailed rules on the extent of access, its implementation and the procedure. It provided that decisions should first and foremost be based on what was best for the child. 24. Provisions governing the contents of judgments in civil proceedings may be found in Chapter 12 of the 1912 Code of Civil Procedure ( tvistemålsloven ). In so far as relevant Article 144 provides: “A judgment shall contain: ... 3. A brief presentation of the object of the case and of the parties'submissions; when appropriate, reference may be made to written pleadings filed in the case, or to entries in the court record; if so, the material referred to shall be included in transcripts of the judgment; 4. Reasoning for the decision; they shall decisively and exhaustively indicate the facts of the case on which the court bases its decision 5. An operative part. ... .” THE LAW I. THE SCOPE OF THE ISSUES BEFORE THE COURT 25. In his observations at the merits stage, the applicant firstly reverted to his complaint under Article 6 § 2 of the Convention and requested the Court to reconsider its decision of 1 June 2006 declaring this part of the application inadmissible on grounds of non-exhaustion. It was the fault of the lawyer who had represented him before the national courts that this complaint had not been pursued before the Supreme Court. 26. However, the above decision is final and the Court finds that no reasons have been brought forward for it to examine whether it should be re-opened. 27. Secondly the applicant complained about lack of impartiality of the High Court on account of the participation of a judge who had been divorced from a brother of the judge who had dealt with the case in the City Court. 28. However, the Court observes that this is a new complaint, which is not covered by its decision on admissibility and therefore falls outside the ambit of the case. 29. In the light of the above, the Court will confine its examination to the applicant's complaints under Articles 6 § 1 and 8 of the Convention, declared admissible on 1 June 2006, concerning the impugned reasoning in the High Court's judgment of 27 September 2002. II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 30. Article 8 of the Convention reads: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Arguments of the parties 1. The applicant 31. The applicant maintained that the relevant passage of the High Court's judgment amounted to an affirmation of suspicion that he had committed sexual abuse. Referring to a medical statement of 7 June 2003 (see paragraph 2 1 above) the applicant submitted that, having been labelled a sexual abuser, he had suffered serious psychological and social problems. He also invoked a psychiatrist's statement of 4 September 2006 (see paragraph 2 2 above). The impugned passage entailed an unjustified interference with his right to respect for private and family life in violation of Article 8 of the Convention. 2. The Government 32. The Government pointed out that that reference to the allegation and the evidence adduced in this respect was due to the fact that this was the main argument presented by the mother. They emphasised that the disputed passage did not determine the applicant's civil rights or determine the question of criminal guilt. The High Court's decision that it was not necessary to explore whether he had assaulted his son did therefore not in any respect affect the applicant's rights under Article 8. The question of abuse did not affect the outcome of the proceedings in question. Any such assessment would have been superfluous, since the other circumstances in the case were more than sufficient for the Court to determine that access should not be granted. Article 8 was therefore not applicable to the obiter dictum at issue. B. Assessment by the Court 33. The Court does not find that the issue under Article 8 of the Convention can, as suggested by the Government, be analysed solely with reference to the outcome of the case before the High Court. Even though the impugned passage in the High Court's judgment of 27 September 2002 had no bearing on its conclusion with regard to the applicant's claim of access rights in respect of his sons, it nonetheless conveyed information to the effect that the High Court, having regard to the state of the evidence, held a suspicion that the applicant had sexually abused L. It not only related to the most intimate aspects of the applicant's private life but it also suggested that he might have engaged in highly reprehensible conduct vis-à-vis a person to whom he had family ties, his son. The information was moreover capable of adversely affecting his enjoyment of private and family life, in the ordinary sense of these terms. Therefore, in the Court's view, the facts underlying the applicant's complaint fell within the scope of Article 8 of the Convention which provision is therefore applicable to the matter at hand. 34. Furthermore, the Court finds that the inclusion by the High Court of the disputed statement as a part of its own reasoning in the judgment constituted an interference with the applicant's right to respect for his private and family life as guaranteed by Article 8 § 1 of the Convention. It will therefore have to consider whether the interference was justified under Article 8 § 2. 35. In this regard the Court notes that it is undisputed that the interference was “in accordance with the law” and the Court finds no reason to hold otherwise. 36. As to the question of whether the inclusion of the statement pursued any of the legitimate aims enumerated in Article 8 § 2, the Court has taken note of the Government's explanation, made in the context of Article 6 § 1, that it was included because the abuse argument had been the mother's principal submission, though it had not affected the High Court's decision. The Court has further noted the applicant's submission, in connection with his complaint under Article 6 § 2 (declared inadmissible on 1 June 2006), that the relevant passage amounted to an affirmation of suspicion that he had committed sexual abuse and that, despite the High Court's statement that this matter had not been decisive for the outcome, it was hard to believe that this was not the case. The Court for its part finds no reason to doubt that the impugned statement had been prompted by H.T.'s principal submission and the applicant's objection thereto, that he had sexually abused L. The Court is prepared to accept that when the High Court touched upon this matter in its reasoning concerning the applicant's request to be granted a right of access to the children, it was in the pursuit of one or more of the legitimate aims enumerated in Article 8 § 2, notably for the protection of the rights and freedoms of others. 37. However, turning to the next criterion in Article 8 § 2, the one of necessity, it is not apparent to the Court why the High Court, in the first part of the impugned statement, held: “In view of the information available in the case, where quite detailed descriptions have been provided of the abuse, together with [L.]'s strong objections to seeing his father, the High Court finds that there are many elements that may indicate that abuse has occurred.” when in the second part it went on to say: “The High Court has nevertheless not found it necessary for its decision to go further into or take a stance on this.” It thus appears that, without it serving any purpose for its resolution of the case, the High Court took judicial notice of the evidence before it and affirmed on this basis a suspicion of its own that the applicant had committed a serious crime, sexual abuse against one of his sons. No cogent reasons have come to light as to why the High Court in part dealt with, in part omitted to deal with the issue of sexual abuse. In the Court's opinion, the national court should either have disposed of the issue, with all that means in terms of evidentiary assessment and reasoning, or have left it on the side. 38. Furthermore, the Court observes that the above portrayal of the applicant's conduct in an authoritative judicial ruling was likely to carry great significance by the way it stigmatised him and was capable of having a major impact on his personal situation as well as his honour and reputation. Indeed, as it appears from the medical certificate of 3 June 2003, the statement had harmed him both psychologically and physically, had had a stifling effect on his social life and had prejudiced his family life. Despite its character and potentially damaging effects on his enjoyment of private and family life, the inclusion of the said passage in the High Court's judgment was not supported by any cogent reasons. 39. In the light of the above, the Court finds that the interference with the applicant's right to respect for his private and family occasioned by the impugned passage in the High Court's judgment, was not sufficiently justified in the circumstances and, notwithstanding the national court's margin of appreciation in such matters, was disproportionate to the legitimate aims pursued. Accordingly, the contested part of the High Court's judgment gave rise to a violation of Article 8 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 40. Article 6 § 1 of the Convention, in so far as is relevant, reads: “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...” A. Arguments of the parties 1. The applicant 41. Relying on the above provision, the applicant complained about the way in which he had been portrayed in the High Court's judgment and its assessment of the evidence in this respect. He accepted that, in deciding on parental access to a child, a court should be able to consider the validity of an accusation that the parent concerned had sexually abused the child. However, he submitted that the High Court had pointed to sexual abuse whilst at the same time refraining from making a real assessment of the evidence and taking a stance on this matter. The impugned statement had caused him considerable moral injury and suffering and prejudice to his private and family life. 2. The Government 42. The Government argued that the disputed passage in the High Court's judgment did not involve the determination of a civil right within the meaning of Article 6 § 1 of the Convention. As clearly stated in the judgment, the High Court did not find it necessary to determine whether abuse had occurred. The outcome of the case depended solely on other elements and it was therefore not necessary to assess the question of abuse. The disputed passage was merely an obiter dictum. Article 6 § 1 was therefore not applicable to the said passage alone. 43. The sole civil right determined by the High Court concerned the applicant's right to access to his children. To assess whether the reasoning was adequate for the purposes of Article 6 § 1 in this respect, the Court ought to consider the judgment as a whole. The reasons given for not granting the applicant access were highly detailed, both with regard to fact and law. Although the mother had claimed before the High Court that the applicant had assaulted the oldest child, the sole question before the High Court was whether the applicant should be granted access to the children. Based on the evidence presented, the testimonies of the two parties and five witnesses and the statements from the court appointed expert, it was clear to the High Court that the applicant should not be granted access to the children irrespective of whether he had abused the oldest child. The High Court was therefore in no respect obliged to address the issue of abuse. Its reference to the allegation and the evidence adduced in this respect was due to the fact that this was the main argument presented by the mother. However, it was nonetheless explicitly clear from the judgment that the allegations of abuse did not affect the High Court's decision not to grant the applicant access to the children. Thus, there was no need to give reasons with regard to this factual accusation by the mother. 44. In substance, the applicant argued that the High Court should have determined whether he had abused the child or should not have commented on the issue at all. If such an argument were to prevail, this would entail that national courts in the Member States could not give obiter dicta without also in this respect giving full reasons according to Article 6 § 1. This would be a severe break with the traditional view of the right to give obiter dicta, and even more so in this case since the disputed passage did not determine a civil right according to Article 6 § 1. 45. In the view of the Government, the rationale for the requirement in Article 6 § 1 that lower courts give reasons, namely to enable the parties to make effective use of any existing right of appeal (see Hirvisaari v. Finland, no. 49684/99, § 30, 27 September 2001 ), did not apply to obiter dicta. All in all, under existing case-law, the national courts could only be obliged to indicate the grounds on which they based their decision (see, inter alia, Hadjianastassiou v. Greece, judgment of 16 December 1992, Series A no. 252, p. 16, § 33 ). An explicit statement in a judgment that the court did not find it necessary to conclude on a factual argument presented by one of the parties could thus not violate the obligation to give adequate reasons. B. Assessment by the Court 1. Applicability of Article 6 § 1 46. The Court notes that the Government do not seem to contest the applicability of Article 6 § 1 to the proceedings in which the national courts determined the applicant's claim for a right of access to his two sons. The Court for its part is satisfied that the relevant proceedings concerned a “right” that was arguably recognised under national law, namely under sections 44 and 44A of the Children Act 1981, in their respective versions as in force at the material time. Moreover, the dispute was genuine and serious; it related not only to the actual existence of a right but also to its scope and the manner of its exercise. The result of the proceedings was directly decisive for the right in question which, moreover, was “civil” in character. Thus, having regard to its own case-law ( see, for instance, W. v. the United Kingdom, judgment of 8 July 1987, Series A no. 121, pp. 32- 35, § § 72-79; Zander v. Sweden, judgment of 25 November 1993, Series A no. 279-B, and Kerojärvi v. Finland, judgment of 19 July 1995, Series A no. 322; see also more recent judgments, where the applicability of Article 6 § 1 was undisputed: Olsson v. Sweden (no. 1), judgment of 24 March 1988, Series A no. 130, pp. 38-39, § § 88-90; Olsson v. Sweden (no. 2), judgment of 27 November 1992, Series A no. 250, pp. 37-40, § § 95107; Johansen v. Norway, judgment of 7 August 1996, Reports of Judgments and Decisions 1996 ‑ III, pp. 1010-11, § 87-88; Görgülü v. Germany, no. 74969/01, § 56-60, 26 February 2004; Bianchi v. Switzerland, no. 7548/04, § § 101-115, 22 June 2006 ), the Court finds that Article 6 § 1 was applicable to the proceedings in question. 47. Meanwhile, the Government argued that, because the impugned passage in the High Court's judgment of 27 September 2002 was an obiter dictum, the latter did not involve the determination of a dispute attracting the applicability of Article 6 § 1 to the matter at hand. However, the Court is unable to accept this argument. Although the statement in question may not have had a bearing on the outcome, it was nonetheless closely related to the issue to be determined by the High Court. The Court is of the view that Article 6 § 1 was applicable to the proceedings as a whole, including to the reasons stated by the High Court in its judgment. 48. In sum, Article 6 § 1 was applicable to the subject-matter of the applicant's complaint. 2. Compliance with Article 6 § 1 49. Turning to the question of compliance the Court reiterates that, according to its established case-law reflecting a principle linked to the proper administration of justice, judgments of courts and tribunals should adequately state the reasons on which they are based. The extent to which this duty to give reasons applies may vary according to the nature of the decision and must be determined in the light of the circumstances of the case. Although Article 6 § 1 obliges courts to give reasons for their decisions, it cannot be understood as requiring a detailed answer to every argument. Thus, in dismissing an appeal an appellate court may, in principle, simply endorse the reasons for the lower court's decision (see García Ruiz v. Spain [GC], no. 30544/96, § 26, ECHR 1999 ‑ I; and Helle v. Finland, judgment of 19 December 1997, Reports of Judgments and Decisions 1997 ‑ VIII, p. 2930, § § 59 and 60). A lower court or authority in turn must give such reasons as to enable the parties to make effective use of any existing right of appeal (see Hirvisaari v. Finland, no. 49684/99, § 30, 27 September 2001). 50. The Court sees no reason to doubt that the High Court's judgment provided reasons that must be deemed sufficiently detailed for its conclusion that the deprivation of access was on balance justified by the children's best interest. 51. However, the problem in the present instance is rather one of excess of reasoning on a matter that was of a particularly sensitive nature and of paramount importance for all the persons concerned. The Court, having regard to its findings above in respect of Article 8 of the Convention, does not find it necessary to carry out a separate examination in relation to Article 6 § 1 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 52. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 53. The applicant sought no compensation for pecuniary damage but claimed an amount, not exceeding 1,000,000 Norwegian kroner (“NOK”, approximately 123,650 euros – “EUR”), to be determined by the Court according to its own discretion. 54. The Government did not offer any comments on the above claim. 55. The Court, having regard to the medical evidence adduced (see paragraphs 2 1 -2 2 above), accepts that the applicant must have suffered some non-pecuniary damage as a result of the matter found to constitute violations of the Convention. Making an assessment on an equitable basis it awards the applicant EUR 7,000. B. Costs and expenses 56. The applicant further sought the reimbursement of legal costs and expenses, totalling NOK 148,107.75, in respect of the following items: (a) NOK 125,781.25 (approximately EUR 15,500 ) for his lawyer's work (125 hours at a rate of NOK 805 per hour, plus 25% value added tax- “VAT”) in the proceedings before the Court; (b) NOK 18,489 (approximately EUR 2,300) which he had reimbursed to the Norwegian legal aid authorities in respect of legal aid received in the national proceedings; (c) NOK 3,475 for medical expenses; (d) NOK 3,622.50 for a psychiatric opinion in connection with his application to the Court. 57. As regards item (a) the Government were of the view that the number of hours claimed was excessive and should be reduced by 50%. As to items (b), (c) and (d) they did not make any comments. 58. According to the Court's case-law, an applicant is entitled to reimbursement of his or her costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. As regards item (a) the Court notes that only parts of the pleadings of the applicant's lawyer related to the complaints in respect of which the Court has found violations of the Convention. It finds it reasonable to award EUR 7,500 in respect of this item. As to item (b), the Court is satisfied that parts of these costs were necessarily incurred in order to prevent or obtain redress for the matter found to constitute violations of the Convention and awards EUR 1,000. As to items (c) and (d) (altogether around EUR 865), the Court notes that the former item was substantiated in part whereas the latter item was substantiated in full; it finds it reasonable to award EUR 700 for these two items. C. Default interest 59. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 8 (right to respect for private life) of the Convention, finding that that the impugned passage from the High Court judgment had not been sufficiently justified in the circumstances and had been disproportionate to the aims pursued. It was in particular not apparent why the High Court had mentioned that abuse might have occurred, thus confirming a suspicion of its own that the applicant had committed a serious crime, but had decided not to go any further into the matter. In the Court’s opinion, that court should either have dealt with the issue of sexual abuse fully (i.e. by examining evidence and coming to a reasoned conclusion) or left it to one side. Such an authoritative judicial decision concerning his conduct had stigmatised the applicant, had had a major impact on his honour and reputation and prejudiced his private and family life. |
693 | Incitement to ethnic hatred | II. RELEVANT DOMESTIC LAW 37. The Constitution of the Republic of Lithuania, as relevant in this case, provides as follows: Article 25 “ Everyone shall have the right to hold opinions and freely express them. No one may be prevented from seeking, receiving and imparting information and ideas. Freedom of expression, freedom to receive and impart information may not be restricted in any way other than by law and when it is necessary for the protection of health, dignity, private life, and morals, or for the defence of the constitutional order. Freedom of expression and freedom to impart information shall be incompatible with criminal actions - incitement of national, racial, religious, or social hatred, violence or discrimination, slander or disinformation.” 38. The Code on Administrative Law Offences ( “ the Code ” ) punishes with administrative penalties various minor offences which are not provided for in the domestic substantive criminal law. Article 1 of the Code provides that all citizens must ensure respect for legal rules and the rights of other citizens. Article 9 of the Code defines an administrative offence as a wrongful act which causes danger to public order, citizens'rights or the established order of administration. Article 20 of the Code provides that administrative punishment is a form of establishing responsibility that has the aim of punishing offenders, educating them to observe the law and preventing them reoffending. An administrative warning is a penalty under Article 30 1 and it can be used to replace a harsher penalty the Code prescribes for a particular offence; the administrative warning is also intended to serve as a preventive measure, in the same way as a suspended sentence in criminal law. Article 214 12 of the Code punishes the production, storage and distribution of information material promoting national, racial or religious hatred by a fine of between LTL 1,000 and LTL 10,000 with the confiscation of the material, with or without confiscation of its main means of production. Article 256 provides that an expert's conclusion can be considered as evidence. Pursuant to Article 277, an expert can be appointed when special knowledge is required for solving the case. Under Article 272 of the Code, a person who is liable for an administrative sanction has the right to familiarise himself with the material of the case and to submit explanations and evidence, as well as to lodge requests. Article 314 of the Code stipulates that if a fine has been imposed on a person and the latter does not possess the means to pay it, a court can substitute the fine with administrative arrest of up to 30 days. 39. Article 53 of the Law on Administrative Proceedings (LAP), as in force at the material time, provided that, among other procedural rights, the parties were entitled to question other participants in the process, including witnesses and experts, to take part in the examination of evidence and to present explanations. Under Article 130 of the LAP, parties had the right to bring an appeal against a decision of a first - instance court. The appeal should indicate, among other things, evidence to support its grounds. Article 144 of the LAP stipulated that appeal proceedings against a decision or ruling in cases relating to administrative law offences were conducted in writing. Upon the decision of the chamber of judges, an oral hearing of a specific case could be held. III. RELEVANT INTERNATIONAL LAW 40. Article 20 § 2 of the International Covenant on Civil and Political Rights, in force in the Republic of Lithuania since 20 February 1992, provides : “ Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law ”. 41. The International Convention on the Elimination of All Forms of Racial Discrimination, ratified by the Republic of Lithuania on 9 January 199 9, provides, insofar as relevant, as follows: Article I “ 1. In this Convention, the term “racial discrimination” shall mean any distinction, exclusion, restriction or preference based on ... national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life. ” Article 2 “ 1. States Parties condemn racial discrimination and undertake to pursue by all appropriate means ... of eliminating racial discrimination in all its forms and promoting understanding among all races, and, to this end: ... (d) Each State Party shall prohibit and bring to an end, by all appropriate means, including legislation as required by circumstances, racial discrimination by any persons, group or organization ... ” Article 3 “ States Parties particularly condemn racial segregation and apartheid and undertake to prevent, prohibit and eradicate all practices of this nature in territories under their jurisdiction. ” Article 4 “ States Parties condemn all propaganda and all organizations which are based on ideas or theories of superiority of one race or group of persons of one colour or ethnic origin, or which attempt to justify or promote racial hatred and discrimination in any form, and undertake to adopt immediate and positive measures designed to eradicate all incitement to, or acts of, such discrimination and, to this end, with due regard to the principles embodied in the Universal Declaration of Human Rights and the rights expressly set forth in article 5 of this Convention, inter alia: (a) Shall declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin ... ” 42. According to Article 6 § 2 of the Framework Convention for the Protection of National Minorities, signed within the framework of the Council of Europe and in force in the Republic of Lithuania since 1 July 2000: “The Parties undertake to take appropriate measures to protect persons who may be subject to threats or acts of discrimination, hostility or violence as a result of their ethnic, cultural, linguistic or religious identity.” 43. The European Commission against Racism and Intolerance General Policy, in its Recommendation no. 1 : Combating racism, xenophobia, anti-Semitism and intolerance, recommends that the Governments of the member States, insofar as relevant, “ensure that national criminal, civil and administrative law expressly and specifically counter racism, xenophobia, anti-Semitism and intolerance ”. 44. Appendix to Recommendation no. R (97) 20 of the Committee of Ministers to Member States on “Hate speech”, drafted within the framework of the Council of Europe, provides, insofar as relevant, as follows: Scope “The principles set out hereafter apply to hate speech, in particular hate speech disseminated through the media. For the purposes of the application of these principles, the term “ hate speech ” shall be understood as covering all forms of expression which spread, incite, promote or justify racial hatred, xenophobia, antisemitism or other forms of hatred based on intolerance, including: intolerance expressed by aggressive nationalism and ethnocentrism, discrimination and hostility against minorities, migrants and people of immigrant origin.” Principle 2 “ The governments of the member states should establish or maintain a sound legal framework consisting of civil, criminal and administrative law provisions on hate speech which enable administrative and judicial authorities to reconcile in each case respect for freedom of expression with respect for human dignity and the protection of the reputation or the rights of others. ” Principle 3 “The governments of the member states should ensure that ... interferences with freedom of expression are narrowly circumscribed and applied in a lawful and non-arbitrary manner on the basis of objective criteria. Moreover ... any limitation of or interference with freedom of expression must be subject to independent judicial control. This requirement is particularly important in cases where freedom of expression must be reconciled with respect for human dignity and the protection of the reputation or the rights of others. ” Principle 4 “National law and practice should allow the courts to bear in mind that specific instances of hate speech may be so insulting to individuals or groups as not to enjoy the level of protection afforded by Article 10 of the European Convention on Human Rights to other forms of expression. This is the case where hate speech is aimed at the destruction of the rights and freedoms laid down in the Convention or at their limitation to a greater extent than provided therein.” Principle 5 “National law and practice should allow the competent prosecution authorities to give special attention, as far as their discretion permits, to cases involving hate speech. In this regard, these authorities should, in particular, give careful consideration to the suspect's right to freedom of expression given that the imposition of criminal sanctions generally constitutes a serious interference with that freedom. The competent courts should, when imposing criminal sanctions on persons convicted of hate speech offences, ensure strict respect for the principle of proportionality.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION A. The parties'submissions 1. The applicant 45. The applicant alleged a breach of Article 6 of the Convention, which provides, insofar as relevant, as follows: “1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law .... 3. Everyone charged with a criminal offence has the following minimum rights: ... (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; ... .” 46. The applicant submitted that her case had been examined by the first - instance court without the experts having been summoned, even though their conclusions were essential to the determination of the merits of the case. In view in particular of the fact that some of the expert conclusions were controversial, the applicant should have been given the opportunity to have the experts examined at a hearing. The applicant also claimed that she had been unable to state her case properly before the Supreme Administrative Court, as it had not held a hearing on appeal. 2. The Government 47. The Government stated at the outset that in the present case Article 6 was not applicable under either its “ civil ” or “ criminal ” head. With regard to the non - applicability of Article 6 under the civil head the Government stressed the public-law nature of the dispute. The imposition of the administrative punishment – warning with confiscation of the calendars – had exclusively concerned relations between the citizens and the state. In any event, even assuming that Article 6 applied under its civil head, there had been no need for the domestic courts to call and examine witnesses or experts at a hearing. The Government submitted that at no stage of the proceedings had the applicant requested the examination of the experts. Moreover, there was no reason to doubt the objectivity of the experts'conclusions. The applicant had been able to familiarise herself with the material of the case, including the conclusions, and comment on them either by submitting written explanations or orally at the hearing. 48. Regarding the examination of the applicant's appeal by the written procedure at the Supreme Administrative Court, the Government relied on Article 137 § 2 of the Law on Administrative Proceedings, which prescribed that proceedings on appeal against court rulings in cases of administrative law offences were normally conducted in writing. Moreover, even if the applicant had made a request for an oral hearing, which she failed to do, the court would not have been obliged to grant such a request. The Government also noted that in line with the practice of the Supreme Administrative Court, an oral hearing is held in cases where the court decides that not enough evidence has been gathered, or that it is controversial, and thus that it is necessary to hear submissions from the parties in person. In the present case the Supreme Administrative Court took into account the clarity of the factual circumstances and the clarity of the applicant's submissions as well as the fact that Vilnius City Second District Court had duly and thoroughly examined the questions of fact and law. Therefore the Government concluded that there had been no breach of Article 6 under its civil head. 49. As to the applicability of Article 6 of the Convention under its “criminal” head the Government turned to the criteria developed in the Engel case : the legal classification of the offence in domestic law, the nature of the offence and the nature and degree of severity of the possible penalty ( Engel and Others v. the Netherlands, judgment of 8 June 1976, Series A no. 22, § 82). It observed that the offence which the applicant committed under Lithuanian law was administrative, while admitting that the criterion had limited relevance. More importantly, elaborating on the scope of the violated legal norm, the Government acknowledged that it had a general effect. Nonetheless, on the question of the purpose of the penalty for breach of Article 214 12 of the Code on Administrative Law Offences, the Government contended that it was more preventive than punitive. 50. As to the nature and severity of the penalty, the Government stressed that, having taken into consideration the degree of the applicant's guilt and extenuating circumstances, the latter received only a warning under Article 30 1 of the Code as opposed to a fine of between 1,000 LTL (approximately EUR 290) and 10,000 LTL (approximately EUR 2,900) which Article 214 12 of the Code prescribes. Moreover, the administrative punishment imposed could not be converted into a prison sentence. Therefore the Government maintained that the severity of the punishment imposed in no way attained the level required for it to be considered criminal for the purpose of Article 6 of the Convention. 51. According to the Government, even assuming that Article 6 applied under its “criminal” head, the requirement of fairness of the proceedings had been respected. The Convention does not give the defence an absolute right to question every witness it wishes to call. The Vilnius City Second District Court had exercised its discretion and rightly decided that in view of the clarity of the submitted information there was no need to call the experts to the hearing. The first - instance court had then based its decision not only on the experts'conclusions, but also on other evidence, such as the protocol of the administrative law offence and the submissions of the applicant. The Government stressed that at no stage of the proceedings had the applicant, either in writing or during the hearing, explicitly requested the examination of the experts. 52. On the issue of the fact that a hearing on appeal had not been held before the Supreme Administrative Court, the Government maintained that the applicant had not lodged any request for a hearing to be held. Moreover, the applicant's rights under Article 6 had been fully respected by the first - instance court, thus the appellate court could have reasonably considered that there had been no need for a hearing and had been right to decide the case under the written procedure as the national law prescribed. B. The Court's assessment 1. Applicability of Article 6 of the Convention 53. Having regard to the fact that the applicant was sanctioned with an administrative warning and the confiscation of the unsold copies of “ Lithuanian calendar 2000 ”, the question arises whether the proceedings were “criminal” within the autonomous meaning of Article 6 and thus attracted the guarantees under that head. In determining whether an offence qualifies as “criminal”, three criteria are to be applied: the legal classification of the offence in domestic law, the nature of the offence and the nature and degree of severity of the possible penalty (see, among other authorities, Engel and Others, cited above, § 82, and Lauko v. Slovakia, judgment of 2 September 1998, Reports of Judgments and Decisions 1998-VI, p. 2504, § 56). 54. As to the first criteria the Court acknowledges, and it was not disputed by the parties, that the Code on Administrative Law Offences is not characterised under domestic law as “criminal”. However, the indications furnished by the domestic law of the respondent State have only a relative value (see Öztürk v. Germany, judgment of 21 February 1984, Series A no. 73, p. 19, § 52). 55. In addition, it is the Court's established jurisprudence that the second and third criteria are alternative and not necessarily cumulative: for Article 6 to be held applicable, it suffices that the offence in question is by its nature to be regarded as “criminal” from the point of view of the Convention, or that the offence made the person liable to a sanction which, by its nature and degree of severity, belongs in general to the “criminal” sphere (see Ezeh and Connors v. the United Kingdom [GC], nos. 39665/98 and 40086/98, § 86, ECHR 2003 ‑ X). This does not exclude that a cumulative approach may be adopted where the separate analysis of each criterion does not make it possible to reach a clear conclusion as to the existence of a “criminal charge” (see Lauko, cited above, § 57). 56. On the question of the nature of the offence committed by the applicant, the Court recalls that she was sanctioned for the production and distribution of “ Lithuanian calendar 2000 ” under Articles 30 1 and 214 12 of the Code on Administrative Law Offences. The latter provision regulates administrative law offences against the established order of administration ( Administraciniai teisės pažeidimai, kuriais kėsinamasi į nustatytą valdymo tvarką ). Accordingly, this legal rule is directed towards all citizens and not towards a given group possessing a special status. The general character of the legal rule in question is further confirmed by Chapter 1 of the Code on Administrative Law Offences, which refers to the fact that all citizens must ensure respect for legal rules and the rights of other citizens, as well as by Article 9 of the Code, which defines an administrative offence as a wrongful act which causes danger to public order, citizens'rights and the established order of administration. It follows that the legal norm in question is of general effect and therefore falls under the second Engel criterion ( Lauko, cited above, § 58 ). 57. The Court now has to look at the third criterion – the nature and severity of the penalty. The domestic courts found the applicant guilty under Article 214 12 of the Code on Administrative Law Offences, which stipulates a fine of between 1, 000 LTL and 10, 000 LTL, although, taking into consideration that there were mitigating circumstances, the fine was substituted by a warning under Article 30 1 of the Code. 58. As to the nature of the penalty the Court attaches particular significance to Article 20 of the Code on Administrative Law Offences, which stipulates that the aim of administrative punishment is to punish offenders and to deter them from reoffending. The Court recalls that a punitive character is the customary distinguishing feature of a criminal penalty (see the above-mentioned Öztürk judgment, § 53). 59. As to the degree of severity of the penalty the Court reiterates that the actual penalty imposed on the applicant is relevant to its determination but cannot diminish the importance of what was initially at stake (see Ezeh and Connors, cited above, § 120, and the jurisprudence cited therein). 60. Thus, even though in the present case the national courts issued only a warning under Article 30 1 of the Code on Administrative Law Offences, the applicant was punished under Article 214 12, which stipulates a fine of between 1, 000 LTL and 10, 000 LTL. The Court has particular regard to the fact that if a fine has not been paid, Article 314 of the Code provides a possibility to substitute the fine with administrative arrest of up to 30 days. It should not be forgotten that in addition to the warning, the published and undistributed copies of the calendar were confiscated, and confiscation is often regarded as a criminal punishment. 61. In sum, the general character of the legal provision infringed by the applicant together with the deterrent and punitive purpose of the penalty, as well as the severity of the punishment the applicant risked incurring, suffice to show that the offence in question was, in terms of Article 6 of the Convention, criminal in nature. Therefore the Court considers that Article 6 § 3 (d) is applicable in the instant case. 2. Opportunity to examine the experts 62. The Court recalls that the requirements of paragraph 3 of Article 6 of the Convention are to be seen as particular aspects of the right to a fair trial guaranteed by Article 6 § 1 ( see Doorson v. the Netherlands, judgment of 26 March 1996, Reports of Judgments and Decisions 1996 ‑ II, § 66). In this respect the Court has previously held that all the evidence must normally be produced in the presence of the accused at a public hearing with a view to adversarial argument ( Van Mechelen and Others v. the Netherlands, judgment of 23 April 1997, Reports of Judgments and Decisions 1997 ‑ III, § 51). However, the use as evidence of statements obtained at the pre-trial stage is not in itself inconsistent with paragraphs 3 (d) and 1 of Article 6, provided the rights of the defence have been respected. As a rule, these rights require that the defendant be given an adequate and proper opportunity to challenge and question a witness against him, either when he was making his statements or at a later stage of the proceedings (see, among many authorities, Isgrò v. Italy, judgment of 19 February 1991, Series A no. 194-A, p. 12, § 34, and Lüdi v. Switzerland, judgment of 15 June 1992, Series A no. 238, p. 21, § 47). The corollary of that, however, is that where a conviction is based solely or to a decisive degree on depositions that have been made by a person whom the accused has had no opportunity to examine or to have examined, whether during the pre-trial stage or at the trial, the rights of the defence are restricted to an extent that is incompatible with the guarantees provided by Article 6 (see the following judgments: Unterpertinger v. Austria, 24 November 1986, Series A no. 110, §§ 31-33, and Saïdi v. France, 20 September 1993, Series A no. 261-C, §§ 43-44). With respect to statements of witnesses who proved to be unavailable for questioning in the presence of the defendant, the Court recalls that paragraph 1 of Article 6 taken together with paragraph 3 requires the Contracting States to take positive steps, in particular to enable the accused to examine or have examined witnesses against him (see Sadak and Others v. Turkey, nos. 29900/96, 29901/96, 29902/96 and 29903/96, § 67, ECHR 2001-VIII). 63. In the present case the Court notes that sub-paragraph (d) of paragraph 3 of Article 6 relates to witnesses and not experts. However the Court would like to recall that the guarantees contained in paragraph 3 are constituent elements, amongst others, of the concept of a fair trial set forth in paragraph 1 (art. 6-1) (see, inter alia, Artico v. Italy, judgment of 13 May 1980, Series A no. 37, p. 15, § 32; Goddi v. Italy, judgment of 9 April 1984, Series A no. 76, p. 11, § 28; and Colozza and Rubinat v. Italy, judgment of 12 February 1985, Series A no. 89, p. 14, § 26). In the circumstances of the instant case, the Court, whilst also having due regard to the paragraph 3 guarantees, including those enunciated in sub-paragraph (d), considers that it should examine the applicant's complaints under the general rule of paragraph 1 (see the above-mentioned Colozza judgment, loc. cit.). 64. In the circumstances of the case in issue the Court disagrees with the Government's claim about the lack of significance of the experts'conclusions vis-à-vis the other pieces of evidence. The Court takes into consideration the fact that the first - instance court appointed experts to produce political science, bibliographical, psychological and historical reports with the aim of establishing whether “ Lithuanian calendar 2000 ” posed a danger to society, which was the precondition of an administrative law offence. The Court draws particular attention to the fact that when finding the applicant guilty, the national courts of both instances extensively quoted the experts'conclusions. In particular, the Vilnius City Second District Court quoted the conclusions of the political science experts'report that a biased and one-sided portrayal of relations between the nations obstructed the consolidation of civil society and propagated national hatred. The first - instance court also directly relied on the bibliographical experts'report that “ Lithuanian calendar 2000 ” did not meet the generally applied bibliographical standards as to the sources and literature quoted. In determining guilt and coming to the conclusion that the administrative offence had been committed due to the applicant's negligence, the first - instance court relied on the conclusion of psychological experts. From all the foregoing, the Court concludes that in the instant case the conclusions provided by the experts during the pre-trial stage had a key place in the proceedings against the applicant. It is therefore necessary to determine whether the applicant expressed a wish to have the experts examined in open court and, if so, whether she had such an opportunity. 65. Relying on the documents at its disposition the Court draws attention to the applicant's written request of 12 March 2001, received by the Vilnius City Second District Court the following day, by which the applicant asked the court to postpone the hearing as the experts had not appeared at the hearing for the third time in a row (see § 26 above). The applicant also asked the court to determine the reasons behind the experts'absence and to sanction them. Furthermore, in her appeal the applicant referred to her request to have the experts present at the hearing at the first - instance court and the refusal of that court to summon them. However, the Supreme Administrative Court rejected the applicant's request, noting that under the circumstances of the case her inability to question the experts did not violate any of the procedural legal norms. 66. Having analysed all the material submitted to it, the Court considers that neither at the pre-trial stage nor during the trial was the applicant given the opportunity to question the experts, whose opinions contained certain discrepancies, in order to subject their credibility to scrutiny or cast any doubt on their conclusions. Relying on its case-law on the subject, the Court concludes that in the instant case the refusal to entertain the applicant's request to have the experts examined in open court failed to meet the requirements of Article 6 § 1 of the Convention. Taking into consideration the above conclusion, the Court finds it unnecessary to separately examine the question of the absence of a public hearing before the Supreme Administrative Court. II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION A. The parties'submissions 1. The applicant 67. The applicant alleged a breach of Article 10 of the Convention, the relevant part of which reads as follows: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. ( ... ) 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others ( ... ) .” 68. The applicant argued that the interference with her freedom of expression had been disproportionate within the meaning of Article 10 § 2 of the Convention in view of the minor threat posed by the publication to the interests of the Lithuanian State or any ethnic groups living in Lithuania or the neighbouring countries. In this connection the applicant emphasised that “ Lithuanian calendar ” had been edited and officially distributed by her for 6 years in the whole territory of Lithuania, attracting no great attention from the public or from State institutions. Similarly, the 2, 000 edition of “ Lithuanian calendar ” had been released in a very limited print run of 3, 000 in the second half of the year 1999, and for the following five months had caused no significant interest or exaggerated reactions, up until the State authorities'intervention in January 2000 after they received a note from the embassy of the Russian Federation. The applicant likewise noted that the Prosecutor General had refused to start criminal proceedings against her as the publication had not had the elements of the criminal offence of instigation of ethnic or racial hatred. She also observed that the information published in “ Lithuanian calendar 2000 ” had already been made public in other historical documents. The applicant also relied on the fact that the publication had contained mainly the expression of her own opinions on and assessment of various historical events, and the State had presented no evidence proving the necessity of such a serious interference. As a result of the proceedings, she had not only received an administrative penalty in the form of a warning, but had also lost the main source of her income, in view of the confiscation and destruction of all the unsold items of “ Lithuanian calendar 2000 ” and her resultant inability to continue editing the publication she had created. The applicant further submitted that the authorities could have pursued means other than halting the distribution of the calendar, such as giving her the opportunity to make certain rectifications or announcements, if necessary, on the cover of the remaining, unsold, versions of the publication. Finally, the domestic courts'finding of a lack of intent on the part of the applicant, as well as the minor danger which the publication represented, were also to be taken into account in discarding the argument that the interference had been necessary in a democratic society. 2. The Government 69. The Government argued that Article 10 of the Convention had not been violated. According to them it is of essential importance that the freedom of expression not only stipulates the right to hold opinions, but also imposes duties and responsibilities, and therefore cannot be interpreted as allowing the promotion or dissemination of the ideas of ethnic hatred, hostility and the superiority of one nation vis- à- vis other ethnic groups. The Government admitted that by imposing an administrative punishment there was interference with the applicant's freedom of expression; however it had been justified by the necessity to protect the democratic values on the basis of which Lithuanian society is based. Stressing the sensitivity of the questions related to national minorities and territorial integrity after the re-establishment of independence on 11 March 1990, the Government submitted that “ Lithuanian calendar 2000 ” was clearly promoting the extreme ideology of nationalism, which rejected the idea of the integration of civil society, incited ethnic hatred and intolerance, and questioned territorial integrity and promoted national superiority, which had been proved by the notes sent by the embassies of the Republic of Poland, the Republic of Belarus and the Russian Federation. By withdrawing the publication from distribution and imposing an administrative warning on the applicant, the authorities had sought to prevent the spreading of ideas which might violate the rights of ethnic minorities living in Lithuania as well as endanger Lithuania's relations with its neighbouring countries. In view of the clear threat to these legitimate interests posed by the publication, as well as the minor nature of the penalty ordered against the applicant, the Government considered that the interference had been compatible with the second paragraph of Article 10 of the Convention. B. The Court's assessment 70. The Court finds it clear, and this has not been disputed, that there has been an interference with the applicant's freedom of expression on account of the administrative penalty and the confiscation of the publication, which were applied under Articles 30 1 and 214 12 of the Code on Administrative Law Offences. 71. The above-mentioned interference contravened Article 10 of the Convention unless it was “prescribed by law”, pursued one or more of the legitimate aims referred to in paragraph 2 of Article 10 and was “necessary in a democratic society” for achieving such aim or aims. The Court will examine each of these criteria in turn. 1. Prescribed by law 72. The applicant and the Government did not question that the interference was in accordance with the law. Taking into consideration that the interference was prescribed by Articles 30 1 and 214 12 of the Code on Administrative Law Offences, the Court sees no reason to depart from the position of the parties. 2. Legitimate aim 73. The Court agrees with the Government's submissions that the punishment imposed aimed to protect the values laid out in Article 10 § 2 of the Convention, in particular the reputation and rights of the ethnic groups living in Lithuania and referred to in “ Lithuanian calendar 2000 ”. It remains to be determined whether the interference was necessary in a democratic society. “Necessary in a democratic society” 74. According to the Court's well-established case-law, freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual's self-fulfilment (see, among other authorities, Lingens v. Austria, judgment of 8 July 1986, Series A no. 103, p. 26, § 41). Subject to paragraph 2 of Article 10, it is applicable not only to “ information ” or “ ideas ” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no “ democratic society ” (see Jersild v. Denmark, judgment of 23 September 1994, Series A no. 298, pp. 23-24, § 31 and Steel and Morris v. the United Kingdom, no. 68416/01, § 87, ECHR 2005 ‑ II ). 75. The Court also acknowledges that, as set forth in Article 10, freedom of expression is subject to exceptions, which must, however, be construed strictly, and the need for any restrictions must be established convincingly (see Handyside v. the United Kingdom, 7 December 1976, § 49, Series A no. 24; Lingens, cited above, § 41; Jersild v. Denmark, cited above, § 37; Piermont v. France, 27 April 1995, § 26, Series A no. 314; Lehideux and Isorni v. France, 23 September 1998, § 55, Reports of Judgments and Decisions 1998 ‑ VII; Fressoz and Roire v. France [GC], no. 29183/95, § 45, ECHR 1999 ‑ I; Nilsen and Johnsen v. Norway [GC], no. 23118/93, § 43, ECHR 1999-VIII). 76. The adjective “necessary”, within the meaning of Article 10 § 2, implies the existence of a “pressing social need”. The Court recognises that the Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with a European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a “ restriction ” or “ penalty ” is reconcilable with freedom of expression as protected by Article 10 (see Lingens, cited above, p. 25, § 39, and Janowski v. Poland [GC], no. 25716/94, § 30, ECHR 1999-I). 77. In exercising its supervisory jurisdiction, the Court must look at the impugned interference in the light of the case as a whole, including the content of the remarks held against the applicant and the context in which she made them. In particular, it must determine whether the interference in issue was “proportionate to the legitimate aims pursued” and whether the reasons adduced by the national authorities to justify it were “relevant and sufficient” (see The Sunday Times v. the United Kingdom (no. 1), judgment of 26 April 1979, Series A no. 30, p. 38, § 62; Lingens, cited above, pp. 25-26, § 40; Barfod v. Denmark, judgment of 22 February 1989, Series A no. 149, p. 12, § 28; Janowski, cited above; and News Verlags GmbH & CoKG v. Austria, no. 31457/96, § 52, ECHR 2000-I). In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they based themselves on an acceptable assessment of the relevant facts (see Jersild, cited above, § 31). (a) “Pressing social need” 78. Turning to the facts of the present case, the Court notes that the applicant was sanctioned on the basis of the statements she had made in her capacity as an editor and publisher. Regarding the context in which “ Lithuanian calendar 2000 ” was published, the Court has particular regard to the general situation of the Republic of Lithuania. The Court takes into account the Government's explanation as to the context of the case that after the re- establishment of the independence of the Republic of Lithuania on 11 March 1990 the questions of territorial integrity and national minorities were sensitive. The Court also notes that the publication received negative reactions from the diplomatic representations of the Republic of Poland, the Russian Federation and the Republic of Belarus. In this regard the Court also notes the obligations of the Republic of Lithuania under international law, namely, to prohibit any advocacy of national hatred and to take measures to protect persons who may be subject to such threats as a result of their ethnic identity (see 40 -4 4 above). 79. The Court now turns to the question of the specific language the applicant used in “ Lithuanian calendar 2000 ”. The applicant expressed aggressive nationalism and ethnocentrism (“The Lithuanian nation will only survive by being a nationalist nation – no other way exists!”), repeatedly referred to the Jews as perpetrators of war crimes and genocide against the Lithuanians ( “The soviet occupying power, with the help of ... many Jews ... carried out the genocide and colonisation of the Lithuanian nation”, “Through the blood of our ancestors to the worldwide community of the Jews”, “ ... executions against the Lithuanians and the Lithuanian nation, carrying out pro-Jewish politics” ). She also used the same language with reference to the Poles ( “In 1944 ... the Polish Krajova Army killed 12 Lithuanians for the sole reason that they were Lithuanians”, “In 1944 ... the Polish Krajova Army brutally killed more than a hundred Lithuanians ... the Poles, in war conditions, carried out ethnic cleansing. In the whole territory of Lithuania [the members of the Krajova Army] killed about 1 000, and in the ethnic Lithuanian lands about 3 000 more innocent people for the sole reason that they were Lithuanians. The ... events should be regarded as the genocide of the Lithuanian nation .. .” ). The impugned passages contained statements inciting hatred against the Poles and the Jews. The Court considers that these statements were capable of giving the Lithuanian authorities cause for serious concern. 80. In considering the approach of the domestic courts when deciding whether a “pressing social need” indeed existed and the reasons the authorities adduced to justify the interference, the Court observes that the Vilnius City Second District Court appointed experts, who provided conclusions as to the gravity of the applicant's statements and the danger they posed to society. The courts agreed with the conclusion of the experts that a biased and one -sided portrayal of relations among nations hindered the consolidation of civil society and promoted national hatred. The national courts noted the negative reaction which the publication received from a certain part of Lithuanian society and some foreign embassies. They also took into consideration the experts'conclusions that the applicant's statements could be attributed to the “ ideology of extreme nationalism ”, which promoted national hatred, xenophobia and territorial claims. Having regard to the margin of appreciation left to the Contracting States in such circumstances, the Court considers that the domestic authorities, in the circumstances of the case, did not overstep their margin of appreciation when they considered that there was a pressing social need to take measures against the applicant. (b ) “ Proportionality ” 81. Noting the political dimension of the instant case, the Court nevertheless recalls that there is little scope under Article 10 § 2 of the Convention for restrictions on political speech or on debate on matters of public interest (see Wingrove v. the United Kingdom, judgment of 25 November 1996, Reports 1996-V, pp. 1957-58, § 58). The Court would also like to reiterate that the dominant position which the government occupies makes it necessary for it to display restraint in resorting to criminal proceedings, particularly where other means are available for replying to the unjustified attacks and criticisms of its adversaries. Nevertheless, it certainly remains open to the competent State authorities to adopt, in their capacity as guarantors of public order, measures, even of a criminal-law nature, intended to react appropriately and without excess to such remarks (see Incal v. Turkey, judgment of 9 June 1998, Reports 1998-IV, pp. 1567-68, § 54, and the Appendix to Recommendation no. R (97) 20 of the Committee of Ministers to Member States on “Hate speech”, quoted in § 42 of this judgment). 82. The examination of the domestic courts'decisions reveals that the courts recognised that the present case involved the conflict between the right to freedom of expression, established in Article 2 5 of the Constitution of the Republic of Lithuania, and the protection of the reputation of the rights of others. The courts acknowledged the applicant's right to express her ideas, nonetheless stressing that along with freedoms and rights a person also has obligations, inter alia, the obligation not to violate the Constitution and domestic law. They also stressed that personal beliefs cannot justify the breach of national law and the commission of administrative offences. Having balanced the relevant considerations, the national courts found no reason not to apply the relevant articles of the Code on Administrative Law Offences. 83. The nature and severity of the penalties imposed are among the factors to be taken into account when assessing the proportionality of an interference with the freedom of expression (see Ceylan v. Turkey [GC], no. 23556/94, § 37, ECHR 1999-IV; Tammer v. Estonia, no. 41205/98, § 69, ECHR 2001-I; and Skałka v. Poland, no. 43425/98, §§ 41 ‑ 42, 27 May 2003 ). The Court must also exercise the utmost caution where the measures taken or sanctions imposed by the national authorities are such as to dissuade the press from taking part in the discussion of matters of legitimate public concern (see Jersild, cited above, § 35). 84. In the instant case, the Court notes that the confiscation measure imposed on the applicant could be considered relatively serious. However, the applicant did not have a fine imposed on her, which is the punishment Article 214 12 of the Code on Administrative Law Offences stipulated for the acts she had committed. The domestic courts took into account that the applicant had been negligent and had not acted deliberately, that it was her first administrative offence, as well as the fact that she was handicapped, and instead imposed a warning under Article 30 1 of the Code on Administrative Law Offences, which is the mildest administrative punishment available. 85. Having regard to the foregoing, the Court considers that the applicant's punishment was not disproportionate to the legitimate aim pursued and that the reasons advanced by the domestic courts were sufficient and relevant to justify such interference. The interference with the applicant's right to freedom of expression could thus reasonably be considered necessary in a democratic society for the protection of the reputation or rights of others within the meaning of Article 10 § 2 of the Convention. 86. There has consequently been no breach of Article 10 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 87. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 88. The applicant claimed EUR 2,285,050 for pecuniary damage caused by the confiscation of the calendar. She also claimed EUR 2,000,000 for non-pecuniary damage because she had had to leave her homeland and had suffered damage to her health. 89. The Government submitted that the applicant's claims for just satisfaction were absolutely unreasoned, unsubstantiated and excessive. 90. The Court is of the view that there is no causal link between the violation found under Article 6 § 1 of the Convention and the alleged pecuniary damage. Consequently, it finds no reason to award the applicant any sum under this head. 91. However, the Court considers that, in view of the violation of Article 6 § 1, the applicant has suffered non-pecuniary damage, which is not sufficiently compensated by the finding of a violation. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards the applicant the global sum of EUR 2 ,000 under this head. B. Costs and expenses 92. The applicant also claimed EUR 2 ,000 for the legal costs and expenses incurred before the Court. 93. The Government contested the claim. 94. The Court notes that the applicant was granted legal aid under the Court's legal aid scheme, under which the sum of EUR 355 has been paid to the applicant's lawyer to cover the submission of the applicant's observations and additional expenses. 95. According to the Court's case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court awards the claim in full, less the sum already paid under the Court's legal aid scheme (EUR 355). Consequently, the Court awards the final amount of EUR 1,645 in respect of the applicant's costs and expenses. C. Default interest 96. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been no violation of Article 10 (freedom of expression) of the Convention. It found, in particular, that the applicant had expressed aggressive nationalism and ethnocentrism and statements inciting hatred against the Poles and the Jews which were capable of giving the Lithuanian authorities cause for serious concern. Having regard to the margin of appreciation left to the Contracting States in such circumstances, the Court found that in the present case the domestic authorities had not overstepped their margin of appreciation when they considered that there was a pressing social need to take measures against the applicant. The Court also noted that even though the confiscation measure imposed on the applicant could be deemed relatively serious, she had not had a fine imposed on her, but only a warning, which was the mildest administrative punishment available. Therefore, the Court found that the interference with the applicant’s right to freedom of expression could reasonably have been considered “necessary in a democratic society” for the protection of the reputation or rights of others. |
185 | State’s duty to protect physical and psychological integrity of individuals | II. RELEVANT DOMESTIC LAW Relevant criminal law 41. The relevant parts of the Criminal Code ( Kaznenei zakon Republike Hrvatske, Official Gazette nos. 110/1997, 28/1998, 50/2000, 129/2000, 51/2001, 11/2003, 105/2004, 84/2005 and 71/2006 ) read as follows: Article 75 “ A security measure of compulsory psychiatric treatment may be imposed only as regards a perpetrator who, at the time of committing a criminal offence, suffered from significantly diminished responsibility [and] where there is a risk that the factors giving rise to the state [of diminished responsibility] might incite the future commission of a further criminal offence. A security measure of compulsory psychiatric treatment may be imposed, under the conditions set out in paragraph 1 of this Article, during the execution of a prison sentence, in lieu of a prison sentence or together with a suspended sentence. Compulsory psychiatric treatment shall be imposed for as long as the grounds for its application exist, but [it shall not] in any case exceed the prison term ... Compulsory psychiatric treatment shall not under any circumstances exceed three years. ... ” BODILY INJURY Article 98 “ Anyone who inflicts bodily injury on another person or impairs another person's health shall be fined or sentenced to imprisonment for a term not exceeding one year.” Article 102 “Criminal proceedings for the offence of inflicting bodily injury (Article 98) shall be instituted by means of private prosecution.” THREATS Article 129 “(1) Anyone who threatens another person with harm in order to intimidate or disturb that person shall be fined up to one hundred and fifty monthly wages or sentenced to imprisonment for a term not exceeding six months. (2) Anyone who seriously threatens to kill another person ... shall be fined or sentenced to imprisonment for a term not exceeding one year. ... (4) Criminal proceedings for the criminal offences defined in paragraphs 1 and 2 of this Article shall be instituted upon [a private] application.” VIOLENT BEHAVIOUR WITHIN THE FAMILY Article 215a “A family member who by an act of violence, ill-treatment or particularly contemptuous behaviour places another family member in a humiliating position shall be sentenced to imprisonment for a term of between six months and five years.” Relevant minor offences law 42. The relevant provisions of the Protection against Domestic Violence Act (Official Gazette no. 116/2003, Zakon o zaštiti of nasilja u obitelji ) provide: Section 1 “This Act defines the term domestic violence, persons considered as family members within the meaning of this Act, the manner of protection of family members and the types and purpose of minor offences sanctions.” Section 2 “(1) The provisions of the Minor Offences Act are to be applied in respect of minor offences in the sphere of domestic violence, unless otherwise provided by this Act. (2) All proceedings instituted under this Act shall be urgent.” Section 4 “Domestic violence is: – any use of physical force or psychological pressure against a person's integrity; – any other act by a family member which might cause physical or mental suffering; – causing fear, fear for personal safety or harm to a person's dignity; – physical assault irrespective of whether it has caused injury; – verbal assaults, insults, cursing, calling names or other forms of serious harassment; – sexual harassment; – stalking and all other forms of harassment; – illegal isolation of a person or restricting his or her freedom of movement or communication with others; – causing damage to or destruction of property or attempting to do so .” Types and purpose of minor offences sanctions for protection from domestic violence Section 6 “(1) Minor offences sanctions for protection from domestic violence are fines, imprisonment and protective measures. ... ” Protective measures Section 7 “A court may order the following protective measures against the perpetrator of an act of domestic violence ( a) compulsory psycho-social treatment; ( b) prohibiting access to the victim's proximity; ( c) prohibition on harassing and stalking the victim of violence; ( d) removal from flat, house or other living premises; ( e) providing protection to a person exposed to violence; ( f) compulsory treatment for addiction; ( g) seizure of objects intended for or used in the commission of a minor offence.” Purpose of protective measures Section 8 “The purpose of protective measures is to prevent domestic violence, to secure the necessary protection of the health and safety of a person exposed to violence and to remove the circumstances favourable to or capable of inciting the commission of a further minor offence.” Protective measure of compulsory psycho-social treatment Section 9 “(1) A protective measure of obligatory psycho-social treatment may be imposed in respect of the perpetrator of an act of domestic violence in order to put an end to the violent behaviour of the perpetrator or where there is a risk that the perpetrator might reoffend against persons under section 3 of this Act. (2) The measure under paragraph 1 of this section shall remain in place as long as the reasons for which it has been imposed exist, but for no longer than six months. ... ” Protective measure prohibiting access to the victim's proximity Section 10 “(1) A protective measure prohibiting access to the victim's proximity may be imposed against a person who has committed an act of domestic violence where there is a risk that he or she might reoffend. (2) A decision imposing a measure prohibiting access to the victim's proximity shall define the places or areas covered as well as the distance of access. (3) The duration of a measure under paragraph one of this section shall not be shorter than one month or exceed one year. ... ” Protective measure prohibiting the harassing and stalking of a victim of violence Section 11 “(1) A protective measure prohibiting the harassing and stalking of a victim of violence may be ordered against a person who has committed violence by harassing or stalking and where there is a danger of his or her reoffending against persons under section 3 of this Act. (2) The measure under paragraph 1 of this section shall be ordered for a period from one month to one year. ... ” Protective measure of providing protection to a person exposed to violence Section 13 “(1) A protective measure of providing protection to a person exposed to violence may be ordered in respect of a person exposed to violence for his or her physical protection and to enable him or her to take from home his or her personal documents, clothes, money or other items necessary for everyday life. (2) The measure under paragraph 1 of this section shall include an order to the police to escort the person exposed to violence and protect that person while he or she takes his or her personal items and to escort him or her while leaving the home. (3) The duration of this measure shall be defined by the duration of implementation of the court order.” Ordering of protective measures Section 16 “(1) Protective measures may be ordered at the request of a person exposed to violence or of the police, or of the court's own motion. (2) The protective measures under section 7 ( a) and ( g) shall be ordered by the court of its own motion. (3) The protective measures under this Act shall be ordered for a period which shall not be less than one month, nor shall it exceed two years from the date when a decision in minor offence proceedings has become final or from the date of completion of a prison term, if not otherwise provided under this Act.” Section 17 “(1) The protective measures under section 7 ( b), ( c), ( d) and g) of this Act may be ordered independently even where no other sanction has been imposed. (2) The protective measures under paragraph 1 of this section may be imposed at the request of a person who has lodged a request for minor offences proceedings to be instituted, in order to remove a direct risk to the life of persons exposed to violence or other family members. (3) A court shall give a decision under paragraphs 1 and 2 of this section within 48 hours. ... ” Responsibility for non-compliance with a protective measure Section 20 “(1) The perpetrators of domestic violence are obliged to comply with the protective measure [ordered against them ]. (2) Persons who do not comply with the protective measure ordered against them shall be punished for a minor offence by a fine which may not be less than 3,000 Croatian kuna or by at least forty days'imprisonment. ... ” 43. The relevant part of the Minor Offences Act ( Zakon o Prekršajima, Official Gazette no. 88/2002 ) reads: Section 30 “A fine may be prescribed in respect of an individual in a minimum amount of 300 Croatian kuna and a maximum amount of 10,000 Croatian kuna ... ” Section 31 “ The prison term may be prescribed for a minimum duration of three days and a maximum of thirty days. On an exceptional basis, in respect of the most serious minor offences, it may be prescribed for a maximum duration of sixty days. ... ” 44. The relevant provisions of the Enforcement of Prison Sentences Act ( Zakon o izvršavanju kazne zatvora, Official Gazette nos. 128/1999 and 190/2003) read as follows: PURPOSE OF A PRISON TERM Section 2 “The main purpose of a prison term, apart from humane treatment and respect for the personal integrity of the person serving the prison term, ... is the development of his or her capacity to live after release in accordance with the laws and general customs of society.” INDIVIDUAL PRGRAMME FOR ENFORCEMENT OF A PRISON TERM Section 69 (1) The individual programme for the enforcement of a prison term (hereinafter “the enforcement programme”) consists of a combination of pedagogical, working, leisure, health, psychological and safety activities and measures aimed at adapting the time spent in detention to the character traits and needs of the prisoner and the type and possibilities of the particular penitentiary or prison. The enforcement programme shall be designed with a view to fulfilling the purposes of a prison term under section 7 of this Act. (2) The enforcement programme shall be designed by the prison governor on a proposal from the penitentiary or prison expert team ... (3) The enforcement programme shall contain information on ... special procedures ( ... psychological and psychiatric assistance ... special security measures ... ) ... ” THE LAW I. ALLEGED VIOLATION OF ARTICLES 2, 3 and 8 OF THE CONVENTION 48. The applicant complained that by failing to afford her adequate protection against B's violence the State authorities had failed to comply with their positive obligations. She relied on Articles 2, 3 and 8 of the Convention, the relevant parts of which read : Article 2 – Right to life “1. Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. ... ” Article 3 – Prohibition of torture “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Article 8 – Right to respect for private and family life “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Admissibility 49. The Court notes that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties'submissions 50. The applicant argued that the State authorities had failed in their positive obligations under Articles 2, 3 and 8 of the Convention in respect of the acts of violence committed against her by B. She maintained that although the national courts, in both criminal and minor offences proceedings, had imposed certain sanctions and ordered certain measures, most of these had not been enforced, thereby seriously undermining any meaningful purpose of those proceedings. The national courts had also misapplied the relevant provisions of the applicable substantive and procedural law. 51. She also argued that the requirement for her to prove an immediate risk to her life in order to have a protective measure of prohibition on harassing and stalking a victim of violence applied put a disproportionate burden on her as the victim of violent acts (see paragraph 3 5 above). In any event the Z. Minor Offences Court had had sufficient proof of a risk to her life because at that time B had already been convicted of uttering death threats against her (see paragraph 20 above). 52. The applicant further maintained that owing to the failure of the national authorities to provide her with adequate protection against B's violence she had to live in fear for her physical integrity and for her life, had had to hide in the shelter, together with C, and had also had to move to a secret address. 53. The Government argued that in Croatia the protection of victims of domestic violence was ensured through the mechanisms of criminal law, and in particular the Protection against Domestic Violence Act. In the present case the relevant authorities had reacted to the incidents of violence against the applicant by B, had instituted several sets of both criminal and minor offences proceedings and had applied such criminal sanctions and protective measures against B as they had considered proper and suitable in the circumstances. The Government submitted that the prison term imposed on B for not paying in full the fine imposed in the decision of the Z. Minor Offences Court of 2 October 2006 had not been enforced because Z. Prison had been full to capacity. Likewise, the measure of compulsory psycho-social treatment imposed on B in the same decision had not been implemented owing to the lack of licensed individuals or agencies able to execute such a protective measure (see paragraphs 3 1 and 3 4 above). 54. In addition, the Government had adopted two national strategies for protection against domestic violence (the first one covering the period between 2005 and 2007 and the second covering the period between 2008 and 2010) which included, inter alia, the education of all those involved in cases of domestic violence and cooperation with the non-governmental organisations working in that field as well as financial and other support for them. Thus, in 2008 only sixteen new shelters with a total of 329 places for the victims of violence had been established, of which six were State-funded. 2. The Court's assessment 55. The Court takes note of B's repeated violent behaviour towards the applicant. The facts in issue concern frequent episodes of violence in the period between November 2003 and June 2006, amounting to some two years and seven months. The violence was both verbal, including serious death threats, and physical, including hitting and kicking the applicant in the head, face and body, causing her injuries. In view of the fact that all the incidents of domestic violence in the present case concerned the same perpetrator and occurred in a continual manner, the Court will examine them as a continuous situation. 56. The Court takes further note of the psychiatric reports concerning B which indicated that he suffered from several mental disorders, including a severe form of PTSD, emphasised his tendency towards violence and his reduced ability to control his impulses, and reiterated the recommendation for continuing compulsory psychiatric treatment (see paragraphs 6, 12 and 13 above). 57. The above facts show that the applicant made credible assertions that over a prolonged period of time B presented a threat to her physical integrity and had actually attacked her on a number of occasions. In view of these facts, the Court considers that the State authorities had a positive obligation to protect the applicant from the violent behaviour of her (former) husband. This obligation might arise under all three Articles of the Convention relied upon, namely Articles 2, 3 and 8. However, in order to avoid further analysis as to whether the death threats against the applicant engaged the State's positive obligation under Article 2 of the Convention, as well as issues pertinent to the threshold for the purposes of Article 3 of the Convention, the Court will analyse the circumstances of the present case from the standpoint of Article 8 of the Convention. 58. In this connection the Court reiterates that there is no doubt that the events giving raise to the present application pertain to the sphere of private life within the meaning of Article 8 of the Convention. Indeed, the physical and moral integrity of an individual is covered by the concept of private life. The concept of private life extends also to the sphere of the relations of individuals between themselves. There appears, furthermore, to be no reason in principle why the notion of “private life” should be taken to exclude attacks on one's physical integrity (see X and Y v. the Netherlands, 26 March 1985, § 23, Series A no. 91). 59. While the essential object of Article 8 is to protect the individual against arbitrary action by the public authorities, there may in addition be positive obligations inherent in effective “respect” for private and family life and these obligations may involve the adoption of measures in the sphere of the relations of individuals between themselves (see, mutatis mutandis, X and Y, cited above, §§ 23-24; Mikulić v. Croatia, no. 53176/99, § 57, ECHR 2002-I; and Sandra Janković v. Croatia, no. 38478/05, § 44, ECHR 2009 ‑ ... (extracts) ). 60. As regards respect for private life, the Court has previously held, in various contexts, that the concept of private life includes a person's physical and psychological integrity. Under Article 8 States have a duty to protect the physical and moral integrity of an individual from other persons. To that end they are to maintain and apply in practice an adequate legal framework affording protection against acts of violence by private individuals (see X and Y, cited above, §§ 22 and 23; Costello-Roberts v. the United Kingdom, 25 March 1993, § 36, Series A no. 247-C; D.P. and J.C. v. the United Kingdom, no. 38719/97, § 118, 10 October 2002; M.C. v. Bulgaria, no. 39272/98, §§ 150 and 152, ECHR 2003 ‑ XII; Bevacqua and S. v. Bulgaria, no. 71127/01, § 65, 12 June 2008; and Sandra Janković, cited above, § 45 ). 61. The Court will therefore examine whether Croatia, in dealing with the applicant's case, has been in breach of its positive obligations under Article 8 of the Convention (see, mutatis mutandis, Handyside v. the United Kingdom, 7 December 1976, § 49, Series A no. 24). (a) Measures ordered and implemented ( i ) Detention 62. As to the measures taken against B by the Croatian authorities, the Court notes that one of the measures applied against B was his pre-trial detention. Thus, in the criminal proceedings on charges of violent behaviour within the family, instituted on 21 November 2005 (see §§ 7–17 above), B was detained from 21 November to 20 December 2005. These proceedings concerned the allegations of physical and verbal violence against the applicant in the period between November 2003 and August 2005 as well as the allegations of child molestation. They are still pending. 63. In the proceedings concerning the charges of making death threats against the applicant and a policewoman, instituted on 1 March 2006 (see §§ 18-22 above), B was detained from 30 June to 24 October 2006. ( ii ) Other protective measures 64. Further to B's detention, the national courts applied some other measures against him. Thus, in the last-mentioned proceedings concerning death threats against the applicant and a policewoman, the Zagreb Municipal Court also issued a restraining order against B, prohibiting access to the applicant at a distance of less than three hundred metres and prohibiting contact with the applicant. 65. In the minor offences proceedings on charges of domestic violence, instituted on 26 March 2006, the Zagreb Minor Offences Court ordered a protective measure prohibiting access to the applicant at a distance of less than one hundred metres for a period of one year (see §§ 29-35 above). (b) Measures recommended or ordered and not followed or complied with 66. However, the Court notes that some further recommendations and measures were not followed or complied with. It must be stated at this juncture that it is not the Court's task to verify whether the domestic courts correctly applied domestic criminal law; what is in issue in the present proceedings is not individual criminal-law liability, but the State's responsibility under the Convention. The Court must grant substantial deference to the national courts in the choice of appropriate measures, while also maintaining a certain power of review and the power to intervene in cases of manifest disproportion between the gravity of the act and the results obtained at domestic level (see, mutatis mutandis, Nikolova and Velichkova v. Bulgaria, no. 7888/03, § 62, 20 December 2007; Atalay v. Turkey, no. 1249/03, § 40, 18 September 2008; and Beganović v. Croatia, no. 46423/06, § 78, ECHR 2009 ‑ ... ). 67. In this connection the Court notes that the obligation on the State under Article 8 of the Convention in cases involving acts of violence against an applicant would usually require the State to adopt adequate positive measures in the sphere of criminal-law protection. The Court stresses that the Convention is a living instrument which must be interpreted in the light of present-day conditions and that the increasingly high standard being required in the area of the protection of human rights and fundamental liberties correspondingly and inevitably requires greater firmness in assessing breaches of the fundamental values of democratic societies (see, mutatis mutandis, Selmouni v. France, [GC], no. 25803/94, § 101, ECHR 1999-V; Mayeka and Mitunga v. Belgium, no. 13178/03, § 48, ECHR 2006 ‑ XI; and Sandra Janković, cited above, § 47 ). Bringing to justice perpetrators of violent acts serves mainly to ensure that such acts do not remain ignored by the relevant authorities and to provide effective protection against them. (i ) Detention 68. In the criminal proceedings instituted on 1 March 2006 the Zagreb Municipal Court, in a judgment of 16 October 2006, found B guilty on two counts of making death threats, against the applicant and against a policewoman, and sentenced him to eight months'imprisonment. B has not yet started to serve that prison term. 69. In one of the sets of minor offences proceedings on charges of domestic violence a decision was adopted on 2 October 2006 ordering the applicant to pay a fine in the amount of HRK 6,000. He paid only HRK 1,000 and the remaining HRK 5,000 was supplemented by a prison term, but B never served his prison sentence. The Government explained that this was because Z. Prison was full to capacity. 70. Instead he was arrested as late as 4 September 2009 in a separate set of criminal proceedings concerning charges of death threats against a judge and her daughter, and was placed in pre-trial detention. In these proceedings a judgment sentencing B to three years'imprisonment was adopted on 19 October 2009. (ii ) Psychiatric treatment 71. At the same time an order was made for B to undergo psychiatric treatment. While the Court agrees that this measure was desirable, it cannot but note that it was not applied in connection with any proceedings concerning B's violence against the applicant. Furthermore, it was applied several years after the applicant had reported frequent incidents involving verbal and physical violence and death threats by B. The Court also notes that the Government have provided no information as to whether an individual programme for the execution of B's prison term was designed by the prison governor as required under section 69 of the Enforcement of Prison Sentences Act. An individual programme of this kind in respect of B takes on additional importance in view of the fact that his prison term was combined with a measure as significant as compulsory psychiatric treatment ordered by the domestic courts in relation to the serious death threats he had made (see, by way of comparison, Branko Tomašić and Others v. Croatia, no. 46598/06, § 56, ECHR 2009 ‑ ... ). 72. In this connection the Court notes that as early as December 2004 a psychiatrist who examined B found that he suffered from chronic PTSD, with symptoms that included lowered tolerance of frustration, latent aggressiveness, a worsening of his condition and impaired social functioning, in particular in family life. In another psychiatric report, dated January 2008, it was found that B was in need of continuing psychiatric control and supervision and that a regular programme of therapy would preserve his relatively stable mental condition and hence diminish the likelihood of his repeating the criminal offences and, in practical terms, remove the risk to his environment. 73. In one set of minor offences proceedings on charges of domestic violence, a decision of 2 October 2006 ordered that the applicant should undergo psycho-social treatment in order to address his mental health problems in connection with his violent behaviour (see paragraph 3 1 above). However, owing to the lack of licensed individuals or agencies able to execute such a protective measure, it was never enforced (see §§ 31-33 above). (iii ) Fines 74. The Court notes that the Government have not submitted any information showing that the fine of HRK 2,000 which B was ordered to pay in the minor offences proceedings on 20 November 2006 has been enforced. Further to that, in another set of minor offences proceedings, he was ordered to pay a fine in the amount of HRK 7,000 on 19 July 2007. However, the national courts allowed these proceedings to become time-barred when they were pending before the appeal court. (c) Conclusion 75. The Court stresses that its task is not to take the place of the competent Croatian authorities in determining the most appropriate methods of protecting individuals from attacks on their personal integrity, but rather to review under the Convention the decisions that those authorities have taken in the exercise of their power of appreciation (see Sandra Janković, cited above, § 46). 76. In line with the principle stated above, the Court is also aware that it is for the national authorities to organise their legal systems so as to comply with their positive obligations under the Convention, and in that respect it is of course possible to conduct separate sets of criminal proceedings against the same defendant in respect of different criminal offences involving the same victim. However, in a situation such as the one in the present case, where different sets of criminal and minor offences proceedings concerned a series of violent acts by the same person, namely B, and against the same victim, namely the applicant, it appears that the requirement of effective protection of the applicant's right to respect for her private life would have been better satisfied had the authorities been in a position to view the situation as a whole. That would have given them a better overview of the situation and an opportunity of addressing the need to protect the applicant from various forms of violence in the most appropriate and timely manner. 77. The Court recognises that the national courts instituted several sets of minor offences and criminal proceedings against B, in the context of which they ordered certain measures such as periods of pre-trial detention, psychiatric or psycho-social treatment, restraining and similar orders and even a prison term. By ordering these measures the Croatian authorities showed that they considered them adequate and necessary in order to address the situation of violence against the applicant. The Court cannot but agree with that approach. 78. The national courts never overturned the measures in question or held that they were no longer necessary. However, as explained above in detail, many of these measures, such as periods of detention, fines, psycho-social treatment and even a prison term, have not been enforced (see paragraphs 6 8 -7 4 above) and the recommendations for continuing psychiatric treatment, made quite early on, were complied with as late as 19 October 2009 and then in the context of criminal proceedings unrelated to the violence against the applicant. In addition, it is not certain that B has as yet undergone any psychiatric treatment (see paragraph 2 3 above ). The Court stresses that the main purpose of imposing criminal sanctions is to restrain and deter the offender from causing further harm. However, these aims can hardly be achieved without the sanctions imposed being enforced. 79. The national authorities failed to implement measures ordered by the national courts, aimed on the one hand at addressing B's psychiatric condition, which appear to have been at the root of his violent behaviour, and on the other hand at providing the applicant with protection against further violence by B. They thus left the applicant for a prolonged period in a position in which they failed to satisfy their positive obligations to ensure her right to respect for her private life. 80. There has accordingly been a violation of Article 8 of the Convention. In view of that finding, the Court considers that no separate issue remains to be examined under Articles 2 and 3 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 81. The applicant further complained of the unfairness of the criminal and minor offences proceedings instituted against B. She relied on Article 6 § 1 of the Convention, the relevant part of which provides : “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...” 82. The Court notes that the applicant cannot rely on Article 6 of the Convention in so far as her complaint relates to criminal proceedings against third persons. Furthermore, the complaints made by the applicant have been examined above in connection with the complaint under Article 8 of the Convention. 83. It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4. III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 84. The applicant alleged that she had no effective remedy in respect of her complaint under the Convention. She relied on Article 13 of the Convention, which provides : “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 85. The Government contested that argument. 86. The Court notes that this complaint is linked to the one examined above under Article 8 of the Convention and must therefore likewise be declared admissible. 87. The applicant argued that because of the failure of the national authorities to enforce their own decisions adopted in various proceedings instituted against B on charges of verbal and physical violence against her, she had no effective remedy by which to obtain protection against B's violence. The Court notes that these very same issues have already been examined above under Article 8 of the Convention and have led to a finding of a violation of that Article. Therefore, the Court considers that in the specific circumstances of the present case it is not necessary to examine whether, in this case, there has been a violation of Article 13 of the Convention. IV. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION 88. The applicant further complained that the relevant laws relating to domestic violence were insufficient and ineffective and that since acts of domestic violence were predominantly committed against women, those laws were also discriminatory. She relied on Article 14 of the Convention, which provides : “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” 1. The parties'submissions 89. The applicant concentrated her arguments concerning the alleged violation of Article 14 on three main points. Firstly, she argued that the legislation pertinent to the incidents of domestic violence was discriminatory in that it provided for minor offences proceedings in respect of all acts of domestic violence, including instances of serious physical abuse, while such violence occurring outside a domestic context was dealt with through ordinary criminal-law mechanisms. Furthermore, although a measure of compulsory psychiatric treatment was provided for by law, in practice it had been entirely ineffective. 90. Secondly, she argued that although the Government had adopted two national strategies for protection against domestic violence (in 200 5 and 20 08 ) neither had been implemented. In that connection she stressed that the training of experts working in the context of domestic violence was insufficient and that there had been no evaluation of such training. 91. Thirdly, the applicant maintained that the statistics relating to the application of protective measures under the Protection against Domestic Violence Act showed that in 2007, in the City of Zagreb, 173 cases concerning domestic violence had been processed under that Act. In 98 of these cases a request had been made for the application of protective measures; such measures had actually been applied in only eleven cases, while in 40 cases they had been refused and in 47 cases a judge had made no comments on the request for a protective measure. The applicant submitted further official statistics showing that out of 172 sets of minor offences proceedings conducted in 2007, 132 had ended by finding both (former) spouses guilty. Of these, 70 cases had resulted in a sentence of imprisonment, 38 of which had been suspended. In the remaining 16 cases in which only one (former) spouse was found guilty, men had been the perpetrators in 14 cases and women in 2, while the other cases had been terminated without a conviction. 92. Separate statistics were submitted regarding the length of proceedings instituted under the Protection against Domestic Violence Act before the High Minor Offences Court, which is an appeal court in minor offences cases. In 2007 that court received 1, 568 cases under the said Act. In 461 cases the proceedings had lasted thirty days, in 574 cases between 31 and 60 days, in 420 cases they had lasted between 61 and 120 days and in 67 cases more than 121 days. 93. The Government argued that there had been no discriminatory treatment of the applicant by any of the authorities involved. Unlike in the Opuz case (see Opuz v. Turkey, no. 33401/02, ECHR 2009 ‑ ... ), the facts of the present case showed that none of the authorities had treated the incidents of violence against the applicant as a family matter they could not interfere with. Furthermore, none of the officials had in any manner tried to dissuade the applicant from pursuing her claims against B. 2. The Court's assessment 94. The Court has already accepted that a general policy or measure which is apparently neutral but has disproportionately prejudicial effects on persons or groups of persons who, as for instance in the present case, are identifiable only on the basis of gender, may be considered discriminatory notwithstanding that it is not specifically aimed at that group (see, mutatis mutandis, Hugh Jordan v. the United Kingdom, no. 24746/94, § 154, 4 May 2001; Hoogendijk v. the Netherlands (dec.), no. 58461/00, 6 January 2005; and Oršuš and Others v. Croatia [GC], no. 15766/03, § 150, ECHR 2010 ‑ ... ), unless that measure is objectively justified by a legitimate aim and the means of achieving that aim are appropriate, necessary and proportionate. Furthermore, discrimination potentially contrary to the Convention may result from a de facto situation (see Zarb Adami v. Malta, no. 17209/02, § 76, ECHR 2006 -VIII). Where an applicant produces prima facie evidence that the effect of a measure or practice is discriminatory, the burden of proof will shift on to the respondent State, to whom it falls to show that the difference in treatment is not discriminatory (see Oršuš and Others, cited above, § 1 50 ). 95. The Court notes that in Opuz, on the basis of reports submitted by the applicants and prepared by the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) Committee, the Diyarbakır Bar Association and Amnesty International, it found that general and discriminatory judicial passivity in Turkey, albeit unintentional, had mainly affected women, and considered that the violence suffered by the applicant and her mother could be regarded as gender-based violence which was a form of discrimination against women. Despite the reforms carried out by the Government in recent years, the overall unresponsiveness of the judicial system and the impunity enjoyed by the aggressors, as found in that case, indicated that there had been insufficient commitment to take appropriate action to address domestic violence ( see Opuz, cited above, § 200). 96. In support of these findings the Court relied on the Turkish Government's recognition of the general attitude of the local authorities, such as the manner in which the women were treated at police stations when they reported domestic violence, and judicial passivity in providing effective protection to victims (see Opuz, cited above, § 192). Furthermore, the reports submitted indicated that when victims reported domestic violence to police stations, police officers did not investigate their complaints but sought to assume the role of mediator by trying to convince the victims to return home and drop their complaint. In this connection, police officers considered the problem as a family matter with which they could not interfere (see Opuz, cited above, §§ 92, 96, 102 and 195 ). The reports also showed that there were unreasonable delays in issuing injunctions and in serving injunctions on the aggressors, given the negative attitude of the police officers. Moreover, the perpetrators of domestic violence did not seem to receive dissuasive punishments, because the courts mitigated sentences on the grounds of custom, tradition or honour (see Opuz, cited above, §§ 91-93, 95, 101, 103, 1 06 and 196 ). 97. The Court notes at the outset that in the present case the applicant has not submitted any reports in respect of Croatia of the kind concerning Turkey in the Opuz case. There is not sufficient statistical or other information disclosing an appearance of discriminatory treatment of women who are victims of domestic violence on the part of the Croatian authorities such as the police, law-enforcement or health-care personnel, social services, prosecutors or judges of the courts of law. The applicant did not allege that any of the officials involved in the cases concerning the acts of violence against her had tried to dissuade her from pursuing the prosecution of B or giving evidence in the proceedings instituted against him, or that they had tried in any other manner to hamper her efforts to seek protection against B's violence. 98. Starting from the arguments submitted by the applicant (see paragraphs 89 -9 2 above), the Court will proceed to examine whether they disclose prima facie evidence of discrimination on the basis of gender. 99. As regards the applicant's arguments related to the legislative provisions covering the incidents of domestic violence, the Court stresses that it is for legislators and politicians to deal with the issues pertinent to devising general criminal policy, including the prevention of crime, in a given legal system (see Branko Tomašić and Others, cited above, § 7 3 ). The Court's task is to review under the Convention the decisions that those authorities have taken. 100. The Court notes that, in Croatia, incidents of domestic violence may be addressed both in minor offences proceedings and in ordinary criminal proceedings. In the Court's view, the fact that certain acts of domestic violence may be the subject of minor offences proceedings does not in itself appear discriminatory on the basis of gender. In this connection the Court notes that various types of sanctions and measures may be applied in those proceedings, such as fines of up to HRK 10,000, a prison term of up to sixty days and the preventive measures listed in sections 7-10 of the Protection against Domestic Violence Act (see paragraph 4 2 above). In addition to that the criminal offence of violent behaviour within the family under Article 215a of the Criminal Code is punishable by a prison term ranging from six months to five years. In the Court's view the legislative framework in question does not show any appearance of discrimination on the basis of gender. Thus, in the present case several sets of both minor offences and criminal proceedings were instituted against B. 101. The Court has already established that not all the sanctions and measures ordered or recommended in the context of these proceedings were complied with. While this failure appears problematic from the standpoint of Article 8 of the Convention, it does not in itself disclose an appearance of discrimination or discriminatory intent on the basis of gender in respect of the applicant. 102. As regards the national strategies for protection against domestic violence adopted in 2008 and 2010, the Court notes that the applicant's allegation that the training of relevant experts had been insufficient is unsupported by any relevant examples, data or reports and cannot in itself lead to a conclusion of gender discrimination in the treatment of incidents of domestic violence in Croatia. 103. As regards the statistics concerning the implementation of protective measures, the information submitted is again incomplete and unsupported by relevant analysis and thus not capable of leading the Court to draw any conclusions on that basis. As regards the other statistics submitted, the only worrisome data is that out of 173 sets of minor offences proceedings conducted in 2007 in connection with incidents of domestic violence, in 132 sets of proceedings both spouses were found guilty. However, no such findings were made in the cases concerning the applicant. 104. Against the background described above, the Court finds that the applicant has not produced sufficient prima facie evidence that the measures or practices adopted in Croatia in the context of domestic violence, or the effects of such measures or practices, are discriminatory. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 105. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 106. The applicant claimed 20,000 euros (EUR) in respect of non ‑ pecuniary damage. 107. The Government deemed the amount claimed excessive and unsubstantiated. 108. Having regard to all the circumstances of the present case, the Court accepts that the applicant suffered non-pecuniary damage which cannot be compensated for solely by the finding of a violation. Making its assessment on an equitable basis, the Court awards the applicant EUR 9 ,000 in respect of non-pecuniary damage, plus any tax that may be chargeable to her. B. Costs and expenses 109. The applicant also claimed HRK 8,659. 30 for the costs and expenses incurred before the Constitutional Court and HRK 23,515.60 for those incurred before the Court. 110. The Government submitted that the applicant was not entitled to any costs and expenses before the national courts. 111. According to the Court's case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court accepts that the applicant's constitutional complaint was aimed at remedying the situation of violation claimed by the applicant in the present case. It therefore awards the claim for costs and expenses in the domestic proceedings in the amount of EUR 1,200 and considers it reasonable to award the sum of EUR 3,270 for the proceedings before the Court, plus any tax that may be chargeable to her on those amounts. C. Default interest 112. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention in that the Croatian authorities had failed to implement many of the measures ordered by the courts to protect the applicant or deal with her ex-husband’s psychiatric problems, which appeared to be at the root of his violent behaviour. It was also unclear whether he had undergone any psychiatric treatment. The Court further declared the applicant’s complaint under Article 14 (prohibition of discrimination) of the Convention inadmissible, on the ground, in particular, that she had not given sufficient evidence (such as reports or statistics) to prove that the measures or practices adopted in Croatia against domestic violence, or the effects of such measures or practices, were discriminatory. |
852 | Interception of communications, phone tapping and secret surveillance | II. THE RELEVANT LEGISLATION AND CASE-LAW 15. French criminal law adopts the principle that any kind of evidence is admissible: "unless otherwise provided by statute, any type of evidence shall be admissible to substantiate a criminal charge ..." (Article 427 of the Code of Criminal Procedure). There is no statutory provision which expressly empowers investigating judges to carry out or order telephone tapping, or indeed to carry out or order various measures which are nonetheless in common use, such as the taking of photographs or fingerprints, shadowing, surveillance, requisitions, confrontations of witnesses and reconstructions of crimes. On the other hand, the Code of Criminal Procedure does expressly confer power on them to take several other measures, which it regulates in detail, such as pre-trial detention, seizure of property and searches. 16. Under the old Code of Criminal Procedure the Court of Cassation had condemned the use of telephone tapping by investigating judges, at least in circumstances which it regarded as disclosing, on the part of a judge or the police, a lack of "fairness" incompatible with the rules of criminal procedure and the safeguards essential to the rights of the defence (combined divisions, 31 January 1888, ministère public c. Vigneau, Dalloz 1888, jurisprudence, pp. 73-74; Criminal Division, 12 June 1952, Imbert, Bull. no. 153, pp. 258-260; Civil Division, second section, 18 March 1955, époux Jolivot c. époux Lubrano et autres, DS 1955, jurisprudence, pp. 573-574, and Gazette du Palais (GP) 1955, jurisprudence, p. 249). Some trial courts and courts of appeal which had to deal with the issue, on the other hand, showed some willingness to hold that such telephone tapping was lawful if there had been neither "entrapment" nor "provocation"; this view was based on Article 90 of the former Code (Seine Criminal Court, Tenth Division, 13 February 1957, ministère public contre X, GP 1957, jurisprudence, pp. 309-310). 17. Since the 1958 Code of Criminal Procedure came into force, the courts have had regard in this respect to, among others, Articles 81, 151 and 152, which provide: Article 81 (first, fourth and fifth paragraphs) "The investigating judge shall, in accordance with the law, take all the investigative measures which he deems useful for establishing the truth. ... If the investigating judge is unable to take all the investigative measures himself, he may issue warrants to senior police officers ( officiers de police judiciaire ) in order to have them carry out all the necessary investigative measures on the conditions and subject to the reservations provided for in Articles 151 and 152. The investigating judge must verify the information thus gathered. ..." Article 151 (as worded at the material time) "An investigating judge may issue a warrant requiring any judge of his court, any district-court judge within the territorial jurisdiction of that court, any senior police officer ( officier de police judiciaire ) with authority in that jurisdiction or any investigating judge to undertake any investigative measures he considers necessary in places coming under their respective jurisdictions. The warrant shall indicate the nature of the offence to which the proceedings relate. It shall be dated and signed by the issuing judge and shall bear his seal. It may only order investigative measures directly connected with the prosecution of the offence to which the proceedings relate. ..." Article 152 "The judges or senior police officers instructed to act shall exercise, within the limits of the warrant, all the powers of the investigating judge. ..." 18. An Act of 17 July 1970 added to the Civil Code an Article 9 guaranteeing to everyone "the right to respect for his private life". It also added to the Criminal Code an Article 368, whereby: "Anyone who wilfully intrudes on the privacy of others: 1. By listening to, recording or transmitting by means of any device, words spoken by a person in a private place, without that person ’ s consent; 2. ... shall be liable to imprisonment for not less than two months and not more than one year and a fine ... or to only one of these two penalties." During the preparatory work, one of the vice-chairmen of the National Assembly ’ s Statutes Committee, Mr Zimmermann, sought "certain assurances" that this enactment "[would] not prevent the investigating judge from issuing strictly within the provisions of the law warrants to have telephones tapped, obviously without making use of any form of inducement and in compliance with all the legal procedures" (Journal officiel, National Assembly, 1970 proceedings, p. 2074). The Minister of Justice, Mr René Pleven, replied: "... there is no question of interfering with the powers of investigating judges, who are indeed empowered, in the circumstances laid down by law, to order tapping"; he added a little later: "When an official taps a telephone, he can only do so lawfully if he has a warrant from a judicial authority or is acting on the instructions of a minister" (ibid., p. 2075). Both Houses of Parliament thereupon passed the Bill without amending it on this point. 19. Article 41 of the Post and Telecommunications Code provides that any public servant or anyone authorised to assist with the performance of relevant official duties who breaches the secrecy of correspondence entrusted to the telecommunications service shall be liable to the penalties provided for in Article 187 of the Criminal Code - a fine, imprisonment and temporary disqualification from any public office or employment. Article 42 provides that anyone who, without permission from the sender or the addressee, divulges, publishes or uses the content of correspondence transmitted over the air or by telephone shall be liable to the penalties provided for in Article 378 of the Criminal Code (on professional confidentiality) - a fine or imprisonment. General Instruction no. 500-78 on the telephone service - intended for Post and Telecommunications Authority officials - contains the following provisions, however, given here in the amended version of 1964 (Article 24 of Part III): "Postmasters and sub-postmasters are required to comply with any requests that ... calls to or from a specified telephone should be monitored by the relevant authority, made by: 1. An investigating judge (Articles 81, 92 and 94 of the Code of Criminal Procedure) or any judge or senior police officer ( officier de police judiciaire ) to whom a judicial warrant has been issued (Art. 152); ..." The General Instruction was published in the official bulletin of the Ministry of Post and Telecommunications and was described by the Government as an "implementing regulation". 20. The striking development of various forms of serious crime - large-scale thefts and robberies, terrorism, drug-trafficking - appears in France to have led to a marked increase in the frequency with which investigating judges resort to telephone tapping. The courts have as a result given many more decisions on the subject than formerly; telephone tapping has not been held to be unlawful in itself, although the courts have occasionally shown some distaste for it (Paris Court of Appeal, Ninth Criminal Division, 28 March 1960, Cany et Rozenbaum, GP 1960, jurisprudence, pp. 253-254). The decisions cited to the Court by the Government, the Commission and the applicant, or of which the Court has had cognisance by its own means, are mostly of later date than the facts of the instant case (June 1982) and have gradually provided a number of clarifications. These do not all stem from judgments of the Court of Cassation, and do not for the time being constitute a uniform body of case-law, because the decisions or reasons given in some of the cases have remained unique. They may be summarised as follows. (a) Articles 81 and 151 of the Code of Criminal Procedure (see paragraph 17 above) empower investigating judges - and them alone, as far as judicial investigations are concerned - to carry out telephone tapping or, much more commonly in practice, to issue a warrant to that effect to a senior police officer ( officier de police judiciaire ) within the meaning of Article 16 (see, in particular, Court of Cassation, Criminal Division, 9 October 1980, Tournet, Bull. no. 255, pp. 662-664; 24 April 1984, Peureux, Huvig et autre, DS 1986, jurisprudence, pp. 125-128; 23 July 1985 - see paragraph 12 above; 4 November 1987 - see paragraph 14 above; 15 February 1988, Schroeder, and 15 March 1988, Arfi, Bull. no. 128, pp. 327-335). Telephone tapping is an "investigative measure" which may sometimes be "useful for establishing the truth". It is comparable to the seizure of letters or telegrams (see, among other authorities, Poitiers Court of Appeal, Criminal Division, 7 January 1960, Manchet, Juris-Classeur périodique (JCP) 1960, jurisprudence, no. 11599, and Paris Court of Appeal, Indictment Division, 27 June 1984, F. et autre, DS 1985, jurisprudence, pp. 93-96) and it similarly does not offend the provisions of Article 368 of the Criminal Code, having regard to the legislative history and to the principle that any kind of evidence is admissible (see paragraphs 15 and 18 above and Strasbourg tribunal de grande instance, 15 February 1983, S. et autres, unreported; Colmar Court of Appeal, 9 March 1984, Chalvignac et autre, unreported but cited by the Government at the Commission hearing on 6 May 1988; Paris Court of Appeal, Indictment Division, judgment of 27 June 1984 previously cited and judgment of 31 October 1984, Li Siu Lung et autres, GP 1985, sommaires, pp. 94-95). (b) The investigating judge can only issue such a warrant "where there is a presumption that a specific offence has been committed which has given rise to the investigation" which he is responsible for conducting and not in respect of a whole category of offences "on the off chance"; this is clear not only from Articles 81 and 151 (second and third paragraphs) of the Code of Criminal Procedure but also "from the general principles of criminal procedure" (see, among other authorities, Court of Cassation, Criminal Division, judgments of 23 July 1985, 4 November 1987 and 15 March 1988 previously cited). The French courts do not seem ever to have held that telephone tapping is lawful only where the offences being investigated are of some seriousness or if the investigating judge has specified a maximum duration for it. (c) "Within the limits of the warrant" that has been issued to him - if need be by fax ( Limoges Court of Appeal, Criminal Division, 18 November 1988, Lecesne et autres, DS 1989, sommaires, p. 394) - the senior police officer exercises "all the powers of the investigating judge" (Article 152 of the Code of Criminal Procedure). He exercises these under the supervision of the investigating judge, who by the fifth paragraph of Article 81 is bound to "verify the information ... gathered" (see, among other authorities, Court of Cassation, Criminal Division, judgments of 9 October 1980, 24 April 1984, 23 July 1985, 4 November 1987 and 15 March 1988 previously cited). The warrant apparently sometimes takes the form of a general delegation of powers, including - without its being expressly mentioned - the power to tap telephones (Court of Cassation, Civil Division, second section, judgment of 18 March 1955 previously cited, and Paris Court of Appeal, judgment of 28 March 1960 previously cited). (d) In no case may a police officer tap telephones on his own initiative without a warrant, for example during the preliminary investigation preceding the opening of the judicial investigation (see, among other authorities, Court of Cassation, Criminal Division, 13 June 1989, Derrien, and 19 June 1989, Grayo, Bull. no. 254, pp. 635-637, and no. 261, pp. 648-651; full court, 24 November 1989, Derrien, DS 1990, p. 34, and JCP 1990, jurisprudence, no. 21418, with the submissions of Mr Advocate-General Emile Robert). (e) Telephone tapping must not be accompanied by "any subterfuge or ruse" (see, among other authorities, Court of Cassation, Criminal Division, judgment of 9 October 1980, 24 April 1984, 23 July 1985, 4 November 1987, 15 February 1988 and 15 March 1988 previously cited) failing which the information gathered by means of it must be either deleted or removed from the case file (Court of Cassation, Criminal Division, judgments of 13 and 19 June 1989 previously cited). (f) The telephone tapping must also be carried out "in such a way that the exercise of the rights of the defence cannot be jeopardised" (see, among other authorities, Court of Cassation, Criminal Division, judgments of 9 October 1980, 24 April 1984, 23 July 1985, 4 November 1987, 15 February 1988, 15 March 1988 and 19 June 1989 previously cited). In particular, the confidentiality of the relations between suspect or person accused and lawyer must be respected, as must, more generally, a lawyer ’ s duty of professional confidentiality, at least when he is not acting in any other capacity (Aix-en-Provence Court of Appeal, Indictment Division, 16 June 1982 and 2 February 1983, Sadji Hamou et autres, GP 1982, jurisprudence, pp. 645-649, and GP 1983, jurisprudence, pp. 313-315; Paris Court of Appeal, Indictment Division, judgment of 27 June 1984 previously cited). (g) With this reservation, it is permissible to tap telephone calls to or from a charged person (Court of Cassation, Criminal Division, judgments of 9 October 1980 and 24 April 1984 previously cited) or a mere suspect, such as Mr Terrieux in the instant case (see paragraph 9 above and also the previously cited judgments of the Strasbourg tribunal de grande instance, 15 February 1983, the Colmar Court of Appeal, 9 March 1984, and the Indictment Division of the Paris Court of Appeal, 27 June 1984) or even a third party, such as a witness, whom there is reason to believe to be in possession of information about the perpetrators or circumstances of the offence (see, among other authorities, Aix-en-Provence Court of Appeal, judgment of 16 June 1982 previously cited). (h) A public telephone-box may be tapped (Seine Criminal Court, Tenth Division, 30 October 1964, Trésor public et Société de courses c. L. et autres, DS 1965, jurisprudence, pp. 423-424) just like a private line, irrespective of whether current is diverted to a listening station (Court of Cassation, Criminal Division, 13 June 1989, and full court, 24 November 1989, previously cited). ( i ) The senior police officer supervises the tape or cassette recording of the conversations and their transcription, where he does not carry out these operations himself; when it comes to choosing extracts to submit "for examination by the court", it is for him to determine "what words may render the speaker liable to criminal proceedings". He performs these duties "on his own responsibility and under the supervision of the investigating judge" (Strasbourg tribunal de grande instance, judgment of 15 February 1983 previously cited, upheld by the Colmar Court of Appeal on 9 March 1984; Paris Court of Appeal, judgment of 27 June 1984 previously cited). (j) The original tapes - which in the instant case were sealed (see paragraphs 8-9 above) - are "exhibits", not "investigation documents", but have only the weight of circumstantial evidence; their contents are transcribed in reports in order to give them a physical form so that they can be inspected (Court of Cassation, Criminal Division, 28 April 1987, Allieis, Bull. no. 173, pp. 462-467). (k) If transcription raises a problem of translation into French, Articles 156 et seq. of the Code of Criminal Procedure, which deal with expert opinions, do not apply to the appointment and work of the translator (Court of Cassation, Criminal Division, 6 September 1988, Fekari, Bull. no. 317, pp. 861-862 (extracts), and 18 December 1989, M. et autres, not yet reported). (l) There is no statutory provision prohibiting the inclusion in the file on a criminal case of evidence from other proceedings, such as tapes and reports containing transcriptions, if they may "assist the judges and help to establish the truth", provided that such evidence is added under an adversarial procedure (Toulouse Court of Appeal, Indictment Division, 16 April 1985 - see paragraph 11 above; Court of Cassation, Criminal Division, 23 July 1985 - see paragraph 12 above - and 6 September 1988 previously cited). (m) The defence must be able to inspect the reports containing transcriptions, to hear the original tape recordings, to challenge their authenticity during the judicial investigation and subsequent trial and to apply for any necessary investigative measures - such as an expert opinion, as in the instant case (see paragraph 10 in fine) - relating to their contents and the circumstances in which they were made (see, among other authorities, Court of Cassation, Criminal Division, 23 July 1985 - see paragraph 12 above; 16 July 1986, Illouz, unreported; and 28 April 1987, Allieis, previously cited). (n) Just as the investigating judge supervises the senior police officer, he is himself supervised by the Indictment Division, to which he - exactly like the public prosecutor - may apply under Article 171 of the Code of Criminal Procedure. Trial courts, courts of appeal and the Court of Cassation may have to deal with objections or grounds of appeal as the case may be - particularly by defendants but also, on occasion, by the prosecution (Court of Cassation, judgments of 19 June and 24 November 1989 previously cited) - based on a failure to comply with the requirements summarised above or with other rules which the parties concerned claim are applicable. A failure of this kind, however, would not automatically nullify the proceedings such that a court of appeal could be held to have erred if it had not dealt with them of its own motion; they affect only defence rights (Court of Cassation, Criminal Division, 11 December 1989, Takrouni, not yet reported). 21. Since at least 1981, parties have increasingly often relied on Article 8 (art. 8) of the Convention - and, much less frequently, on Article 6 (art. 6) (Court of Cassation, Criminal Division, 23 April 1981, Pellegrin et autres, Bull. no. 117, pp. 328-335, and 21 November 1988, S. et autres ) - in support of their complaints about telephone tapping; they have sometimes as in the instant case (see paragraph 12 above) - cited the case-law of the European Court of Human Rights. Hitherto only telephone tapping carried out without a warrant, during the police investigation (see, among other authorities, Court of Cassation, judgments of 13 June and 24 November 1989 previously cited), or in unexplained circumstances (see, among other authorities, Court of Cassation, judgment of 19 June 1989 previously cited) or in violation of defence rights (Paris Court of Appeal, Indictment Division, judgment of 31 October 1984, previously cited) has been held by the French courts to be contrary to Article 8 § 2 (art. 8-2) ("in accordance with the law") or to domestic law in the strict sense. In all other cases the courts have either found no violation (Court of Cassation, Criminal Division, judgments of 24 April 1984, 23 July 1985, 16 July 1986, 28 April 1987, 4 November 1987, 15 February 1988, 15 March 1988, 6 September 1988 and 18 December 1989 previously cited, and 16 November 1988, S. et autre, unreported, and the judgments of 15 February 1983 (Strasbourg), 9 March 1984 ( Colmar ) and 27 June 1984 (Paris) previously cited) or else ruled the plea inadmissible for various reasons (Court of Cassation, Criminal Division, judgments of 23 April 1981, 21 November 1988 and 11 December 1989 previously cited and the unreported judgments of 24 May 1983, S. et autres; 23 May 1985, Y. H. W.; 17 February 1986, H.; 4 November 1986, J.; and 5 February 1990, B. et autres ). 22. While academic opinion is divided as to the compatibility of telephone tapping as carried out in France - on the orders of investigating judges or others - with the national and international legal rules in force in the country, there seems to be unanimous agreement that it is desirable and even necessary for Parliament to try to solve the problem by following the example set by many foreign States (see in particular Gaëtan di Marino, comments on the Tournet judgment of 9 October 1980 (Court of Cassation), JCP 1981, jurisprudence, no. 19578; Albert Chavanne, ‘ Les résultats de l ’ audio -surveillance comme preuve pénale ’, Revue internationale de droit comparé, 1986, pp. 752-753 and 755; Gérard Cohen-Jonathan, ‘ Les écoutes téléphoniques ’, Studies in honour of Gérard J. Wiarda, 1988, p. 104; Jean Pradel, ‘ Écoutes téléphoniques et Convention européenne des Droits de l ’ Homme ’, DS 1990, chronique, pp. 17-20). In July 1981 the Government set up a study group chaired by Mr Robert Schmelck, who was then President of the Court of Cassation, and consisting of senators and MPs of various political persuasions, judges, university professors, senior civil servants, judges and a barrister. The group submitted a report on 25 June 1982, but this has remained confidential and has not yet led to a bill being tabled. PROCEEDINGS BEFORE THE COMMISSION 23. Before the Commission, to which he applied on 16 October 1985 (application no. 11801/85), Mr Kruslin put forward a single ground of complaint: he argued that the interception and recording of his telephone conversation on 17 June 1982 had infringed Article 8 (art. 8) of the Convention. The Commission declared the application admissible on 6 May 1988. In its report of 14 December 1988 (made under Article 31) (art. 31) it expressed the opinion by ten votes to two that there had indeed been a breach of that Article (art. 8). The full text of the Commission ’ s opinion and of the separate opinion contained in the report is reproduced as an annex to this judgment [*]. FINAL SUBMISSIONS TO THE COURT 24. At the hearing the Court was requested: (a) by the Agent of the Government to "hold that there ha[d] been no breach of Article 8 (art. 8) of the Convention in the instant case"; (b) by the Delegate of the Commission to "conclude that in the instant case there ha[d] been a breach of Article 8 (art. 8)"; and (c) by counsel for the applicant to "find the French Government in breach in this case". AS TO THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 (art. 8) 25. Mr Kruslin claimed that in the instant case there had been a breach of Article 8 (art. 8), which provides: "1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others." The Government disputed that submission, while the Commission agreed with it in substance. 26. Although it was Mr Terrieux ’ s line that they were tapping, the police in consequence intercepted and recorded several of the applicant ’ s conversations, and one of these led to proceedings being taken against him (see paragraphs 9-10 above). The telephone tapping therefore amounted to an "interference by a public authority" with the exercise of the applicant ’ s right to respect for his "correspondence" and his "private life" (see the Klass and Others judgment of 8 September 1978, Series A no. 28, p. 21, § 41, and the Malone judgment of 2 August 1984, Series A no. 82, p. 30, § 64). The Government did not dispute this. Such an interference contravenes Article 8 (art. 8) unless it is "in accordance with the law", pursues one or more of the legitimate aims referred to in paragraph 2 (art. 8-2) and furthermore is "necessary in a democratic society" in order to achieve them. A. "In accordance with the law" 27. The expression "in accordance with the law", within the meaning of Article 8 § 2 (art. 8-2), requires firstly that the impugned measure should have some basis in domestic law; it also refers to the quality of the law in question, requiring that it should be accessible to the person concerned, who must moreover be able to foresee its consequences for him, and compatible with the rule of law. 1. Whether there was a legal basis in French law 28. It was a matter of dispute before the Commission and the Court whether the first condition was satisfied in the instant case. The applicant said it was not. Article 368 of the Criminal Code, he claimed, prohibited telephone tapping in principle (see paragraph 18 above). It took precedence over Article 81 of the Code of Criminal Procedure, which did not expressly authorise telephone tapping and required the investigating judge to behave "in accordance with the law" - and therefore in accordance, inter alia, with Article 368 of the Criminal Code - when ordering any steps "useful for establishing the truth" (see paragraph 17 above). Articles 151 and 152 (ibid.) made no difference, he added, as investigating judges could not delegate to senior police officers powers which they did not have themselves. The Delegate of the Commission agreed as to the latter point. In the Government ’ s submission, there was no contradiction between Article 368 of the Criminal Code and Article 81 of the Code of Criminal Procedure, at least not if regard was had to the drafting history of the former (see paragraph 18 above). The Code of Criminal Procedure, they argued, did not give an exhaustive list of the investigative means available to the investigating judge - measures as common as the taking of photographs or fingerprints, shadowing, surveillance, requisitions, confrontations between witnesses, and reconstructions of crimes, for example, were not mentioned in it either (see paragraph 15 above). The provisions added to Article 81 by Articles 151 and 152 were supplemented in national case-law (see paragraphs 17 and 20-21 above). By "law" as referred to in Article 8 § 2 (art. 8-2) of the Convention was meant the law in force in a given legal system, in this instance a combination of the written law - essentially Articles 81, 151 and 152 of the Code of Criminal Procedure - and the case-law interpreting it. The Delegate of the Commission considered that in the case of the Continental countries, including France, only a substantive enactment of general application - whether or not passed by Parliament - could amount to a "law" for the purposes of Article 8 § 2 (art. 8-2) of the Convention. Admittedly the Court had held that "the word ‘ law ’ in the expression ‘ prescribed by law ’ cover[ed] not only statute but also unwritten law" (see the Sunday Times judgment of 26 April 1979, Series A no. 30, p. 30, § 47, the Dudgeon judgment of 22 October 1981, Series A no. 45, p. 19, § 44, and the Chappell judgment of 30 March 1989, Series A no. 152, p. 22, § 52), but in those instances the Court was, so the Delegate maintained, thinking only of the common-law system. That system, however, was radically different from, in particular, the French system. In the latter, case-law was undoubtedly a very important source of law, but a secondary one, whereas by "law" the Convention meant a primary source. 29. Like the Government and the Delegate, the Court points out, firstly, that it is primarily for the national authorities, notably the courts, to interpret and apply domestic law (see, among many other authorities, the Malone judgment previously cited, Series A no. 82, p. 36, § 79, and the Eriksson judgment of 22 June 1989, Series A no. 156, p. 25, § 62). It is therefore not for the Court to express an opinion contrary to theirs on whether telephone tapping ordered by investigating judges is compatible with Article 368 of the Criminal Code. For many years now, the courts - and in particular the Court of Cassation - have regarded Articles 81, 151 and 152 of the Code of Criminal Procedure as providing a legal basis for telephone tapping carried out by a senior police officer ( officier de police judiciaire ) under a warrant issued by an investigating judge. Settled case-law of this kind cannot be disregarded. In relation to paragraph 2 of Article 8 (art. 8-2) of the Convention and other similar clauses, the Court has always understood the term "law" in its "substantive" sense, not its "formal" one; it has included both enactments of lower rank than statutes (see, in particular, the De Wilde, Ooms and Versyp judgment of 18 June 1971, Series A no. 12, p. 45, § 93) and unwritten law. The Sunday Times, Dudgeon and Chappell judgments admittedly concerned the United Kingdom, but it would be wrong to exaggerate the distinction between common-law countries and Continental countries, as the Government rightly pointed out. Statute law is, of course, also of importance in common-law countries. Conversely, case-law has traditionally played a major role in Continental countries, to such an extent that whole branches of positive law are largely the outcome of decisions by the courts. The Court has indeed taken account of case-law in such countries on more than one occasion (see, in particular, the Müller and Others judgment of 24 May 1988, Series A no. 133, p. 20, § 29, the Salabiaku judgment of 7 October 1988, Series A no. 141, pp. 16-17, § 29, and the Markt Intern Verlag GmbH and Klaus Beermann judgment of 20 November 1989, Series A no. 165, pp. 18-19, § 30). Were it to overlook case-law, the Court would undermine the legal system of the Continental States almost as much as the Sunday Times judgment of 26 April 1979 would have "struck at the very roots" of the United Kingdom ’ s legal system if it had excluded the common law from the concept of "law" (Series A no. 30, p. 30, § 47). In a sphere covered by the written law, the "law" is the enactment in force as the competent courts have interpreted it in the light, if necessary, of any new practical developments. In sum, the interference complained of had a legal basis in French law. 2. "Quality of the law" 30. The second requirement which emerges from the phrase "in accordance with the law" - the accessibility of the law - does not raise any problem in the instant case. The same is not true of the third requirement, the law ’ s" foreseeability" as to the meaning and nature of the applicable measures. As the Court pointed out in the Malone judgment of 2 August 1984, Article 8 § 2 (art. 8-2) of the Convention "does not merely refer back to domestic law but also relates to the quality of the law, requiring it to be compatible with the rule of law". It "thus implies ... that there must be a measure of legal protection in domestic law against arbitrary interferences by public authorities with the rights safeguarded by paragraph 1 (art. 8-1) ... Especially where a power of the executive is exercised in secret, the risks of arbitrariness are evident ... Undoubtedly ..., the requirements of the Convention, notably in regard to foreseeability, cannot be exactly the same in the special context of interception of communications for the purposes of police investigations" - or judicial investigations - "as they are where the object of the relevant law is to place restrictions on the conduct of individuals. In particular, the requirement of foreseeability cannot mean that an individual should be enabled to foresee when the authorities are likely to intercept his communications so that he can adapt his conduct accordingly. Nevertheless, the law must be sufficiently clear in its terms to give citizens an adequate indication as to the circumstances in which and the conditions on which public authorities are empowered to resort to this secret and potentially dangerous interference with the right to respect for private life and correspondence. ... [In its judgment of 25 March 1983 in the case of Silver and Others the Court] held that ‘ a law which confers a discretion must indicate the scope of that discretion ’, although the detailed procedures and conditions to be observed do not necessarily have to be incorporated in rules of substantive law (ibid., Series A no. 61, pp. 33-34, §§ 88-89). The degree of precision required of the ‘ law ’ in this connection will depend upon the particular subject-matter ... Since the implementation in practice of measures of secret surveillance of communications is not open to scrutiny by the individuals concerned or the public at large, it would be contrary to the rule of law for the legal discretion granted to the executive" - or to a judge - "to be expressed in terms of an unfettered power. Consequently, the law must indicate the scope of any such discretion conferred on the competent authorities and the manner of its exercise with sufficient clarity ... to give the individual adequate protection against arbitrary interference." (Series A no. 82, pp. 32-33, §§ 67-68) 31. The Government submitted that the Court must be careful not to rule on whether French legislation conformed to the Convention in the abstract and not to give a decision based on legislative policy. The Court was therefore not concerned, they said, with matters irrelevant to Mr Kruslin ’ s case, such as the possibility of telephone tapping in relation to minor offences or the fact that there was no requirement that an individual whose telephone had been monitored should be so informed after the event where proceedings had not in the end been taken against him. Such matters were in reality connected with the condition of "necessity in a democratic society", fulfilment of which had to be reviewed in concrete terms, in the light of the particular circumstances of each case. 32. The Court is not persuaded by this argument. Since it must ascertain whether the interference complained of was "in accordance with the law", it must inevitably assess the relevant French "law" in force at the time in relation to the requirements of the fundamental principle of the rule of law. Such a review necessarily entails some degree of abstraction. It is none the less concerned with the "quality" of the national legal rules applicable to Mr Kruslin in the instant case. 33. Tapping and other forms of interception of telephone conversations represent a serious interference with private life and correspondence and must accordingly be based on a "law" that is particularly precise. It is essential to have clear, detailed rules on the subject, especially as the technology available for use is continually becoming more sophisticated. Before the Commission (supplementary observations of 4 July 1988, pages 4-7, summarised in paragraph 37 of the report) and, in a slightly different form, before the Court, the Government listed seventeen safeguards which they said were provided for in French law ( droit ). These related either to the carrying out of telephone tapping or to the use made of the results or to the means of having any irregularities righted, and the Government claimed that the applicant had not been deprived of any of them. 34. The Court does not in any way minimise the value of several of the safeguards, in particular the need for a decision by an investigating judge, who is an independent judicial authority; the latter ’ s supervision of senior police officers and the possible supervision of the judge himself by the Indictment Division, by trial courts and courts of appeal and, if need be, by the Court of Cassation; the exclusion of any "subterfuge" or "ruse" consisting not merely in the use of telephone tapping but in an actual trick, trap or provocation; and the duty to respect the confidentiality of relations between suspect or accused and lawyer. It has to be noted, however, that only some of these safeguards are expressly provided for in Articles 81, 151 and 152 of the Code of Criminal Procedure. Others have been laid down piecemeal in judgments given over the years, the great majority of them after the interception complained of by Mr Kruslin (June 1982). Some have not yet been expressly laid down in the case-law at all, at least according to the information gathered by the Court; the Government appear to infer them either from general enactments or principles or else from an analogical interpretation of legislative provisions - or court decisions - concerning investigative measures different from telephone tapping, notably searches and seizure of property. Although plausible in itself, such "extrapolation" does not provide sufficient legal certainty in the present context. 35. Above all, the system does not for the time being afford adequate safeguards against various possible abuses. For example, the categories of people liable to have their telephones tapped by judicial order and the nature of the offences which may give rise to such an order are nowhere defined. Nothing obliges a judge to set a limit on the duration of telephone tapping. Similarly unspecified are the procedure for drawing up the summary reports containing intercepted conversations; the precautions to be taken in order to communicate the recordings intact and in their entirety for possible inspection by the judge (who can hardly verify the number and length of the original tapes on the spot) and by the defence; and the circumstances in which recordings may or must be erased or the tapes be destroyed, in particular where an accused has been discharged by an investigating judge or acquitted by a court. The information provided by the Government on these various points shows at best the existence of a practice, but a practice lacking the necessary regulatory control in the absence of legislation or case-law. 36. In short, French law, written and unwritten, does not indicate with reasonable clarity the scope and manner of exercise of the relevant discretion conferred on the public authorities. This was truer still at the material time, so that Mr Kruslin did not enjoy the minimum degree of protection to which citizens are entitled under the rule of law in a democratic society (see the Malone judgment previously cited, Series A no. 82, p. 36, § 79). There has therefore been a breach of Article 8 (art. 8) of the Convention. B. Purpose and necessity of the interference 37. Having regard to the foregoing conclusion, the Court, like the Commission (see paragraph 77 of the report), does not consider it necessary to review compliance with the other requirements of paragraph 2 of Article 8 (art. 8-2) in this case. II. APPLICATION OF ARTICLE 50 (art. 50) 38. By Article 50 (art. 50), "If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party." The applicant claimed, firstly, compensation in the amount of 1,000,000 French francs (FRF) in respect of his fifteen-year prison sentence (see paragraph 13 above), which he alleged to be the direct result of the breach of Article 8 (art. 8) as the telephone tapping complained of had led to the decision to take proceedings against him. He also sought reimbursement of lawyer ’ s fees and expenses: FRF 20,000 in order to prepare his appeal on points of law against the Indictment Division ’ s judgment of 16 April 1985 in the Gerbe d ’ Or case (see paragraph 12 above) plus FRF 50,000 for his defence at the Haute- Garonne Assize Court and the Court of Cassation in the Baron case (see paragraph 14 above). He made no claim for the proceedings at Strasbourg, as the Commission and the Court had granted him legal aid. The Government and the Delegate of the Commission expressed no opinion on the matter. 39. In the circumstances of the case the finding that there has been a breach of Article 8 (art. 8) affords Mr Kruslin sufficient just satisfaction for the alleged damage; it is accordingly unnecessary to award pecuniary compensation. 40. The costs and expenses incurred by the applicant in the Baron case cannot be taken into account by the Court; no doubt the telephone tapping was, as he pointed out, made use of in the two cases successively, but the Commission and the Court have only been concerned with considering its compatibility with the Convention in connection with the Gerbe d ’ Or case (see paragraph 14 in fine above). The sum of FRF 20,000 sought in respect of the latter case, however, is relevant and not excessive, and it should therefore be awarded to him. | The Court held that there had been a violation of Article 8 of the Convention, finding that French law did not indicate with reasonable clarity the scope and manner of exercise of the authorities’ discretion in this area. This was truer still at the material time, so that the Court considered that the applicant had not enjoyed the minimum degree of protection to which citizens are entitled under the rule of law in a democratic society. |
712 | Right to form, to join or not join a trade union | I. GENERAL BACKGROUND AND DOMESTIC LAW A. Closed shops and dismissal from employment In general 13. In essence, a closed shop is an undertaking or workplace in which, as a result of an agreement or arrangement between one or more trade unions and one or more employers or employers ’ associations, employees of a certain class are in practice required to be or become members of a specified union. The employer is not under any legal obligation to consult or obtain the consent of individual employees directly before such an agreement or arrangement is put into effect. Closed shop agreements and arrangements vary considerably in both their form and their content; one distinction that is often drawn is that between the "pre-entry" shop (the employee must join the union before engaged) and the "post-entry" shop (he must join within a reasonable time after being engaged), the latter being more common. In the United Kingdom, the institution of the closed shop is of very long standing. In recent years, closed shop arrangements have become more formalised and the number of employees covered thereby has increased (3.75 million in the 1960 ’ s and 5 million in 1980, approximately). Recent surveys suggest that in many cases the obligation to join a specified union does not extend to existing non-union employees. The law in force until 1971 14. There was no legislation explicitly directed to the practice of the closed shop until 1971. Nevertheless, the courts had since the 1920 ’ s recognised the legitimacy of the trade union object of advancing the union ’ s interests even to the point of enforcing the dismissal, or a ban on the hiring, of non-union employees. However, it was an unlawful conspiracy at common law to pursue a closed shop against individuals beyond the point which the courts regarded as the defence of genuine trade union interests (Huntley v. Thornton [1957] 1 All England Law Reports 234; Morgan v. Fry [1967] 2 All England Law Reports 386). The Royal Commission on Trade Unions and Employers ’ Associations, which reported in 1968, whilst rejecting the possibility of prohibiting the closed shop, considered the question of safeguards for individuals in a closed shop situation. In particular, a majority of that Commission took the view that an existing employee who was dismissed for refusal to join a union following the introduction of a closed shop should be able to succeed against his employer in a complaint of unfair dismissal so long as he could show that he had reasonable grounds for that refusal. 15. Prior to 1971, the rights and liabilities of the parties to a contract of employment were for the most part governed by common law. Leaving aside cases of justified summary dismissal, it was lawful to dismiss an employee, even without cause, provided that he was given due notice. The remedy open to an employee dismissed without due notice was merely to sue for the balance of wages he would have earned during the appropriate notice period; the courts would not order his employer to re-engage him. These principles applied, for example, to dismissals motivated by an employee ’ s joining, or refusing to join, a trade union. The Industrial Relations Act 1971 16. Since 1971, there has been increased Parliamentary intervention in the areas under consideration, and changes of Government have led to changes in the scope and content of the legislation in force. The first major enactment was the Industrial Relations Act 1971 which radically altered the common law position in two respects. 17. In the first place, the 1971 Act conferred on employees (with certain exceptions) the right not to be unfairly dismissed. Dismissal of an employee without cause became unlawful, even if he had been given due notice. An individual who considered that he had been unfairly dismissed could present a complaint to an industrial tribunal; unless the dismissal had been motivated by one or more reasons specified in the Act (for example, qualifications, conduct, redundancy) or some other substantial reason and unless the employer was found to have acted reasonably in treating that or those reasons as a sufficient reason for dismissal, the tribunal could award compensation to the employee or recommend that he be re-engaged. The employee ’ s common law rights were unaffected by the Act, although after 1971 little reliance was placed on them in practice by those entitled to the new right. 18. In the second place, the 1971 Act introduced specific provisions which were designed to make the operation of the majority of closed shops unlawful. In addition to stipulating that pre-entry closed shop agreements were void, the Act, subject to certain exceptions, gave every worker the right to be a member of no trade union or to refuse to be a member of any particular union. In the context of the rules on unfair dismissal and in contrast to the position at common law (see paragraph 15 in fine above), the Act laid down that dismissal motivated by the employee ’ s exercise of, or intention to exercise, that right was be to regarded as unfair. 19. A Green Paper on Trade Union Immunities, published by the British Government in January 1981, states that the 1971 Act "met considerable resistance from trade unions and in practice its closed shop provisions were circumvented by many employers and unions. The closed shop continued much as before". The law in force at the time of the events giving rise to the applicants ’ complaints 20. The industrial Relations Act 1971 was repealed by the Trade Union and Labour Relations Act 1974 ("TULRA"). The provisions of TULRA relevant to the present case came into force on 16 September 1974. 21. The repeal of the Industrial Relations Act 1971 removed from the statute book both the prohibition on closed shops and the employee ’ s right not to belong to a union. However, the law did not fully return to its pre-1971 condition. This was because TULRA maintained the protection against unfair dismissal; since one result of a closed shop is that an individual who declines to join a specified union may have his employment terminated, it was necessary to spell out the precise conditions in which dismissal for this reason was to be regarded as fair. Accordingly, TULRA: (a) set out - by reference to the concept of "union membership agreement", which it defined - the circumstances in which a closed shop situation was to be regarded as existing; (b) laid down the basic rule that, if such a situation existed, the dismissal of an employee for refusal to join a specified union was to be regarded as fair for the purposes of the law on unfair dismissal; (c) provided that, by way of exceptions, such a dismissal was to be regarded as unfair if the employee genuinely objected (i) on grounds of religious belief to being a member of any union whatsoever; or (ii) on any reasonable grounds to being a member of a particular union. 22. The powers of an industrial tribunal under the 1971 Act to award compensation to an unfairly dismissed employee were also re-enacted by TULRA. However, the power to recommend his re-engagement was later replaced, by the Employment Protection Act 1975, by a discretionary power to order reinstatement or re-engagement in certain circumstances (notably, where this was considered "practicable"). It was provided that, if the order were not complied with, the employee should be awarded the normal compensation for unfair dismissal and, in specified cases, an additional sum. 23. TULRA was modified in various respects by the Trade Union and Labour Relations (Amendment) Act 1976 ("the Amendment Act") which came into force on 25 March 1976. In particular, the second of the exceptions mentioned in paragraph 21 (c) above was abolished, so that the action for unfair dismissal remained available only to genuine religious objectors. With the object of achieving greater flexibility, the Amendment Act also modified the concept of "union membership agreement". Subsequent legislative developments 24. The Employment Protection (Consolidation) Act 1978 repealed and re-enacted the then existing provisions concerning unfair dismissal. The 1978 Act was in turn amended, without retroactive effect, by the Employment Act 1980. It remains the basic rule that the dismissal of an employee for refusal to join a specified union in a closed shop situation is to be regarded as fair for the purposes of the law on unfair dismissal. However, with effect from 15 August 1980, this rule became subject to three exceptions whereby such dismissal is to be regarded as unfair if: (a) the employee objects on grounds of conscience or other deeply-held personal conviction to being a member of any or a particular union; or (b) the employee belonged, before the closed shop agreement or arrangement came into effect, to the class of employees covered thereby and has not been a member of a union in accordance therewith; or (c) in the case of a closed shop agreement or arrangement taking effect after 15 August 1980, either it has not been approved by the vote in a ballot of not less than 80% of the employees affected or, although it is so approved, the employee has not since the balloting been a member of a union in accordance therewith. A Code of Practice, issued with the authority of Parliament and coming into effect on 17 December 1980, recommended, inter alia, that closed shop agreements should protect basic individual rights and be applied flexibly and tolerantly and with due regard to the interests of individuals as well as unions and employers. The Code is admissible in evidence, but imposes no legal obligations. 25. The green Paper on Trade Union Immunities (see paragraph 19 above) rehearsed arguments for and against various proposals and indicated that the Government would welcome views on whether further changes in legislation affecting the closed shop were desirable and would be likely to prove effective. B. Other relevant matters concerning trade union membership 26. Since 1971, there has been statutory protection of the right to belong to a trade union. The exact content of the provisions has varied over the years, but their essence is that an employee is entitled to compensation if he is dismissed or penalised for, or deterred or prevented from, being or seeking to become a member or taking part in the activities of a trade union (Industrial Relations Act 1971, section 5; TULRA, Schedule 1, paragraph 6 (4); Employment Protection Act 1975, section 53; Employment Protection (Consolidation) Act 1978, sections 23 and 58). 27. At the end of 1979, there were 477 trade unions in the United Kingdom, with 13.5 million members; in 1980, 108 unions with 12.1 million members, were affiliated to the Trades Union Congress. The Congress adopted in 1 939 a series of morally binding recommendations ("the Bridlington Principles") designed to minimise, and laying down procedures for dealing with, disputes between affiliated unions over membership questions. The current version of the Principles states, inter alia, that dual membership is valid only if the two unions concerned have jointly agreed to it. 28. The Trade Union Act 191 3, as amended, attaches certain conditions to the application by a union of its funds for a number of political objects specified in section 3 (3), without prejudice to the furtherance of any other political objects. In particular, payments for the specified object must be made out of a separate "political fund" and any member of the union has the right to exemption from contributing thereto. A person so exempted may not be placed at any disadvantage as compared with other members, and contribution to the said fund may not be made a condition for admission to the union. PROCEEDINGS BEFORE THE COMMISSION 45. Mr. Young and Mr. James applied to the Commission on 26 July 1976 and Mr. Webster on 18 February 1977; they each made identical complaints, relying on Articles 9, 10, 11 and 13 (art. 9, art. 10, art. 11, art. 13) of the Convention. They submitted that the enforcement of TULRA and the Amendment Act, allowing their dismissal from employment when they objected on reasonable grounds to joining a trade union, interfered with their freedom of thought, conscience, expression and association with others. They further complained that no adequate remedies had been available to them. 46. The application of Mr. Young and Mr. James and that of Mr. Webster were declared admissible by the Commission on 11 July 1977 and 3 March 1978, respectively. In its report of 14 December 1979 (Article 31 of the Convention) (art. 31), the Commission expressed the opinion: - by fourteen votes to three, that there had been a violation of Article 11 (art. 11); - that it was not necessary to deal separately with the issues arising under Articles 9 and 10 (art. 9, art. 10); - by eight votes to two, with two abstentions, that there was no additional breach of Article 13 (art. 13). The report contains four separate opinions. FINAL SUBMISSIONS MADE TO THE COURT 47. At the hearings on 4 March 1981, the Government maintained the submissions set out in their memorial, whereby they had requested the Court: "(I) With regard to Article 11 (art. 11) (i) to decide and declare that the facts found do not disclose a breach by the United Kingdom of their obligations under Article 11 (art. 11); alternatively, if the request at (i) should be rejected, then (ii) to decide and declare that the responsibility of the United Kingdom, if any, under the Convention in respect of the termination of the contracts of employment of the three applicants is engaged exclusively by reason of the enactment of the Acts of 1974 and 1976 and is not engaged on the ground that British Rail is an organ of the State or on the ground that the Government of the United Kingdom is to be regarded as the employer of British Rail or of the applicants. (2) With regard to Articles 9 and 10 (art. 9, art. 10) (i) to decide and declare that the provisions of Articles 9 and 10 (art. 9, art. 10) of the Convention are inapplicable in the circumstances of the present cases; alternatively, if the request at (i) should be rejected, then (ii) to decide and declare that the facts found do not disclose a breach by the United Kingdom of their obligations under Articles 9 and 10 (art. 9, art. 10) of the Convention. (3) With regard to Article 13 (art. 13) (i) to decide and declare that Article 13 (art. 13) of the Convention has no application in the present cases in that no rights or freedoms set forth in the Convention were involved or affected by reason of the dismissal of the applicants from their employment; alternatively, (ii) to decide and declare that the facts found do not disclose a breach by the United Kingdom of their obligations under Article 13 (art. 13) of the Convention additional to any breach of Article 11 (art. 11) of the Convention." AS TO THE LAW I. PRELIMINARY: RESPONSIBILITY OF THE RESPONDENT STATE 48. Mr. Young, Mr. James and Mr. Webster alleged that the treatment to which they had been subjected gave rise to violations of Articles 9, 10 and 11 (art. 9, art. 10, art. 11) of the Convention, in particular read collectively, and of Article 13 (art. 13). Before the substance of the matter is examined, it must be considered whether responsibility can be attributed to the respondent State, the United Kingdom. The Government conceded that, should the Court find that the termination of the applicants ’ contracts of employment constituted a relevant interference with their rights under Article 11 (art. 11) and that that interference could properly be regarded as a direct consequence of TULRA and the Amendment Act, the responsibility of the respondent State would be engaged by virtue of the enactment of that legislation. A similar approach was adopted by the Commission in its report. 49. Under Article 1 (art. 1) of the Convention, each Contracting State "shall secure to everyone within [its] jurisdiction the rights and freedoms defined in ... [the] Convention"; hence, if a violation of one of those rights and freedoms is the result of non-observance of that obligation in the enactment of domestic legislation, the responsibility of the State for that violation is engaged. Although the proximate cause of the events giving rise to this case was the 1975 agreement between British Rail and the railway unions, it was the domestic law in force at the relevant time that made lawful the treatment of which the applicants complained. The responsibility of the respondent State for any resultant breach of the Convention is thus engaged on this basis. Accordingly, there is no call to examine whether, as the applicants argued, the State might also be responsible on the ground that it should be regarded as employer or that British Rail was under its control. II. THE ALLEGED VIOLATION OF ARTICLE 11 (art. 11) 50. The main issues in this case arise under Article 11 (art. 11), which reads as follows: "1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests. 2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article (art. 11) shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State." I. THE EXISTENCE OF AN INTERFERENCE WITH AN ARTICLE 11 (art. 11) RIGHT 51. A substantial part of the pleadings before the Court was devoted to the question whether Article 11 (art. 11) guarantees not only freedom of association, including the right to form and to join trade unions, in the positive sense, but also, by implication, a "negative right" not to be compelled to join an association or a union. Whilst the majority of the Commission stated that it was not necessary to determine this issue, the applicants maintained that a "negative right" was clearly implied in the text. The Government, which saw the Commission ’ s conclusion also as in fact recognising at least a limited negative right, submitted that Article 11 (art. 11) did not confer or guarantee any right not to be compelled to join an association. They contended that this right had been deliberately excluded from the Convention and that this was demonstrated by the following passage in the travaux préparatoires : "On account of the difficulties raised by the ‘ closed-shop system ’ in certain countries, the Conference in this connection considered that it was undesirable to introduce into the Convention a rule under which ‘ no one may be compelled to belong to an association ’ which features in [Article 20 par. 2 of] the United Nations Universal Declaration" (Report of 19 June 1950 of the Conference of Senior Officials, Collected Edition of the" Travaux Préparatoires ", vol. IV, p. 262). 52. The Court does not consider it necessary to answer this question on this occasion. The Court recalls, however, that the right to form and to join trade unions is a special aspect of freedom of association (see the National Union of Belgian Police judgment of 27 October 1975, Series A no. 19, p. 17, par. 38); it adds that the notion of a freedom implies some measure of freedom of choice as to its exercise. Assuming for the sake of argument that, for the reasons given in the above-cited passage from the travaux préparatoires, a general rule such as that in Article 20 par. 2 of the Universal Declaration of Human Rights was deliberately omitted from, and so cannot be regarded as itself enshrined in, the Convention, it does not follow that the negative aspect of a person ’ s freedom of association falls completely outside the ambit of Article 11 (art. 11) and that each and every compulsion to join a particular trade union is compatible with the intention of that provision. To construe Article 11 (art. 11) as permitting every kind of compulsion in the field of trade union membership would strike at the very substance of the freedom it is designed to guarantee (see, mutatis mutandis, the judgment of 23 July 1968 on the merits of the "Belgian Linguistic" case, Series A no. 6, p. 32, par. 5, the Golder judgment of 21 February 1975, Series A no. 18, p. 19, par. 38, and the Winterwerp judgment of 24 October 1979, Series A no. 33, p. 24, par. 60). 53. The Court emphasises once again that, in proceedings originating in an individual application, it has, without losing sight of the general context, to confine its attention as far as possible to the issues raised by the concrete case before it (see, inter alia, the Guzzardi judgment of 6 November 1980, Series A no. 39, pp. 31-32, par. 88). Accordingly, in the present case, it is not called upon to review the closed shop system as such in relation to the Convention or to express an opinion on every consequence or form of compulsion which it may engender; it will limit its examination to the effects of that system on the applicants. 54. As a consequence of the agreement concluded in 1975 (see paragraph 29 above), the applicants were faced with the dilemma either of joining NUR (in the case of Mr. James) or TSSA or NUR (in the cases of Mr. Young and Mr. Webster) or of losing jobs for which union membership had not been a requirement when they were first engaged and which two of them had held for several years. Each applicant regarded the membership condition introduced by that agreement as an interference with the freedom of association to which he considered that he was entitled; in addition, Mr. Young and Mr. Webster had objections to trade union policies and activities coupled, in the case of Mr. Young, with objections to the political affiliations of the specified unions (see paragraphs 34, 37 and 43 above). As a result of their refusal to yield to what they considered to be unjustified pressure, they received notices terminating their employment. Under the legislation in force at the time (see paragraphs 17 and 20-23 above), their dismissal was "fair" and, hence, could not found a claim for compensation, let alone reinstatement or re-engagement. 55. The situation facing the applicants clearly runs counter to the concept of freedom of association in its negative sense. Assuming that Article 11 (art. 11) does not guarantee the negative aspect of that freedom on the same footing as the positive aspect, compulsion to join a particular trade union may not always be contrary to the Convention. However, a threat of dismissal involving loss of livelihood is a most serious form of compulsion and, in the present instance, it was directed against persons engaged by British Rail before the introduction of any obligation to join a particular trade union. In the Court ’ s opinion, such a form of compulsion, in the circumstances of the case, strikes at the very substance of the freedom guaranteed by Article 11 (art. 11). For this reason alone, there has been an interference with that freedom as regards each of the three applicants. 56. Another facet of this case concerns the restriction of the applicants ’ choice as regards the trade unions which they could join of their own volition. An individual does not enjoy the right to freedom of association if in reality the freedom of action or choice which remains available to him is either non-existent or so reduced as to be of no practical value (see, mutatis mutandis, the Airey judgment of 9 October 1979, Series A no. 32, p. 12, par. 24). The Government submitted that the relevant legislation (see paragraph 26 above) not only did not restrict but also expressly protected freedom of action or choice in this area; in particular, it would have been open to the applicants to form or to join a trade union in addition to one of the specified unions. The applicants, on the other hand, claimed that this was not the case in practice, since such a step would have been precluded by British Rail ’ s agreement with the railway unions and by the Bridlington Principles (see paragraph 27 above); in their view, joining and taking part in the activities of a competing union would, if attempted, have led to expulsion from one of the specified unions. These submissions were, however, contested by the Government. Be that as it may, such freedom of action or choice as might have been left to the applicants in this respect would not in any way have altered the compulsion to which they were subjected since they would in any event have been dismissed if they had not become members of one of the specified unions. 57. Moreover, notwithstanding its autonomous role and particular sphere of application, Article 11 (art. 11) must, in the present case, also be considered in the light of Articles 9 and 10 (art. 9, art. 10) (see, mutatis mutandis, the Kjeldsen, Busk Madsen and Pedersen judgment of 7 December 1976, Series A no. 23, p. 26, par. 52). Mr. Young and Mr. Webster had objections to trade union policies and activities, coupled, in the case of Mr. Young, with objections to the political affiliations of TSSA and NUR (see paragraphs 34 and 43 above). Mr. James ’ objections were of a different nature, but he too attached importance to freedom of choice and he had reached the conclusion that membership of NUR would be of no advantage to him (see paragraph 37 above). The protection of personal opinion afforded by Articles 9 and 10 (art. 9, art. 10) in the shape of freedom of thought, conscience and religion and of freedom of expression is also one of the purposes of freedom of association as guaranteed by Article 11 (art. 11). Accordingly, it strikes at the very substance of this Article (art. 11) to exert pressure, of the kind applied to the applicants, in order to compel someone to join an association contrary to his convictions. In this further respect, the treatment complained of - in any event as regards Mr. Young and Mr. Webster - constituted an interference with their Article 11 (art. 11) rights. 2. The existence of a justification for the interference found by the Court 58. The Government expressly stated that, should the Court find an interference with a right guaranteed by paragraph 1 of Articles 9, 10 or 11 (art. 9-1, art. 10-1, art. 11-1), they would not seek to argue that such interference was justified under paragraph 2. The Court has nevertheless decided that it should examine this issue of its own motion, certain considerations of relevance in this area being contained in the documents and information with which it has been furnished. 59. An interference with the exercise of an Article 11 (art. 11) right will not be compatible with paragraph 2 (art. 11-2) unless it was "prescribed by law", had an aim or aims that is or are legitimate under that paragraph and was "necessary in a democratic society" for the aforesaid aim or aims (see, mutatis mutandis, the Sunday Times judgment of 26 April 1979, Series A no. 30, p. 29, par. 45). 60. The applicants argued that the restrictions of which they complained met none of these three conditions. The Court does not find it indispensable to determine whether the first two conditions were satisfied, these being issues which were not fully argued before it. It will assume that the interference was "prescribed by law", within the meaning of the Convention (see the above-mentioned Sunday Times judgment, pp. 30-31, par. 46-49), and had the aim, amongst other things, of protecting the "rights and freedoms of others", this being the only of the aims listed in paragraph 2 that might be relevant. 61. In connection with the last point, the Court ’ s attention has been drawn to a number of advantages said to flow from the closed shop system in general, such as the fostering of orderly collective bargaining, leading to greater stability in industrial relations; the avoidance of a proliferation of unions and the resultant trade union anarchy; the counteracting of inequality of bargaining power; meeting the need of some employers to negotiate with a body fully representative of the workforce; satisfying the wish of some trade unionists not to work alongside non-union employees; ensuring that trade union activities do not benefit of those who make no financial contribution thereto. Any comment on these arguments would be out of place in the present case since the closed shop system as such is not under review (see paragraph 53 above). 62. On the other hand, what has to be determined is the "necessity" for the interference complained of: in order to achieve the aims of the unions party to the 1975 agreement with British Rail, was it "necessary in a democratic society" to make lawful the dismissal of the applicants, who were engaged at a time when union membership was not a condition of employment? 63. A number of principles relevant to the assessment of the "necessity" of a given measure have been stated by the Court in its Handyside judgment of 7 December 1976 (Series A no. 24). Firstly, "necessary" in this context does not have the flexibility of such expressions as "useful" or "desirable" (p. 22, par. 48). The fact that British Rail ’ s closed shop agreement may in a general way have produced certain advantages is therefore not of itself conclusive as to the necessity of the interference complained of. Secondly, pluralism, tolerance and broadmindedness are hallmarks of a "democratic society" (p. 23, par. 49). Although individual interests must on occasion be subordinated to those of a group, democracy does not simply mean that the views of a majority must always prevail: a balance must be achieved which ensures the fair and proper treatment of minorities and avoids any abuse of a dominant position. Accordingly, the mere fact that the applicants ’ standpoint was adopted by very few of their colleagues is again not conclusive of the issue now before the Court. Thirdly, any restriction imposed on a Convention right must be proportionate to the legitimate aim pursued (p. 23, par. 49). 64. The Court has noted in this connection that a majority of the Royal Commission on Trade Unions and Employers ’ Associations, which reported in 1968, considered that the position of existing employees in a newly-introduced closed shop was one area in which special safeguards were desirable (see paragraph 14 above). Again, recent surveys suggest that, even prior to the entry into force of the Employment Act 1980 (see paragraph 24 above), many closed shop arrangements did not require existing non-union employees to join a specified union (see paragraph 13 above); the Court has not been informed of any special reasons justifying the imposition of such a requirement in the case of British Rail. Besides, according to statistics furnished by the applicants, which were not contested, a substantial majority even of union members themselves disagreed with the proposition that persons refusing to join a union for strong reasons should be dismissed from employment. Finally, in 1975 more than 95 per cent of British Rail employees were already members of NUR, TSSA or ASLEF (see paragraph 31 above). All these factors suggest that the railway unions would in no way have been prevented from striving for the protection of their members ’ interests (see the above-mentioned National Union of Belgian Police judgment, p. 18, par. 39) through the operation of the agreement with British Rail even if the legislation in force had not made it permissible to compel non-union employees having objections like the applicants to join a specified union. 65. Having regard to all the circumstances of the case, the detriment suffered by Mr. Young, Mr. James and Mr. Webster went further than was required to achieve a proper balance between the conflicting interests of those involved and cannot be regarded as proportionate to the aims being pursued. Even making due allowance for a State ’ s "margin of appreciation" (see, inter alia, the above-mentioned Sunday Times judgment, p. 36, par. 59), the Court thus finds that the restrictions complained of were not" necessary in a democratic society", as required by paragraph 2 of Article 11 (art. 11-2). There has accordingly been a violation of Article 11 (art. 11). III. THE ALLEGED VIOLATION OF ARTICLES 9 AND 10 (art. 9, art. 10) 66. The applicants alleged that the treatment of which they complained also gave rise to breaches of Articles 9 and 10 (art. 9, art. 10). This was contested by the Government. Having taken account of these Articles (art. 9, art. 10) in the context of Article 11 (art. 11) (see paragraph 57 above), the Court, like the Commission, does not consider it necessary to determine whether they have been violated in themselves. IV. THE ALLEGED VIOLATION OF ARTICLE 13 (art. 13) 67. Having regard to its decision on Article 11 (art. 11) (see paragraph 65 above), the Court does not consider it necessary to determine whether there has in addition been a violation of Article 13 (art. 13), on which the applicants also relied. V. THE APPLICATION OF ARTICLE 50 (art. 50) 68. Counsel for the applicants indicated that, should the Court find a violation, his clients would seek just satisfaction under Article 50 (art. 50) in respect of material losses, legal costs and allied expenses, non-material damages and the damage, both pecuniary and moral, suffered in being deprived of rights and freedoms guaranteed by the Convention. He did not fully quantify their claims and suggested that this issue might be adjourned for further consideration. The Government confined themselves to observing that the question of the application of Article 50 (art. 50) was not relevant at this stage. 69. Accordingly, although it was raised under Rule 47 bis of the Rules of Court, this question is not ready for decision and must be reserved; in the circumstances of the case, the Court considers that the question should be referred back to the Chamber under Rule 50 par. 4 of the Rules of Court. | Violation of Article 11 of the Convention: Closed shop agreements had to protect individuals’ freedom of thought (see also: Sibson v. the United Kingdom, judgment of 20 April 1993). |
1,009 | Military presence | II. RELEVANT INTERNATIONAL LAW MATERIALS A. International humanitarian law on belligerent occupation 89. The duties of an Occupying Power can be found primarily in Articles 42 to 56 of the Regulations concerning the Laws and Customs of War on Land (The Hague, 18 October 1907 ) ( “the Hague Regulations”) and Articles 27 to 34 and 47 to 78 of the Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War ( of 12 August 1949 ) ( “ the Fourth Geneva Convention”), as well as in certain provisions of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), of 8 June 1977 ( “Additional Protocol I ”). Articles 42 and 43 of the Hague Regulations provide as follows: Article 42 “ Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised. ” Article 43 “ The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.” Article 64 of the Fourth Geneva Convention provides that penal laws may be repealed or suspended by the Occupying Power only where they constitute a threat to the security or an obstacle to the application of the Fourth Geneva Convention. It also details the situations in which the Occupying Power is entitled to introduce legislative measures. These are specifically : “ ... provisions which are essential to enable the Occupying Power to fulfil its obligations under the present Convention, to maintain the orderly government of the territory, and to ensure the security of the Occupying Power, of the members and property of the occupying forces or administration, and likewise of the establishments and lines of communication used by them.” Agreements concluded between the Occupying Power and the local authorities cannot deprive the population of the occupied territory of the protection afforded by international humanitarian law and protected persons themselves can in no circumstances renounce their rights (Fourth Geneva Convention, Articles 8 and 47 ). Occupation does not create any change in the status of the territory (see Article 4 of Additional Protocol I), which can only be effected by a peace treaty or by annexation followed by recognition. The former sovereign remains sovereign and there is no change in the nationality of the inhabitants. B. Case-law of the International Court of Justice concerning the interrelationship between international humanitarian law and international human rights law and the extraterritorial obligations of States under international human rights law 90. In the proceedings concerning the International Court of Justice ’ s Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (9 July 2004), Israel denied that the human rights instruments to which it was a party, including the International Covenant on Civil and Political Rights, were applicable to the Occupied Palestinian Territory and asserted ( at paragraph 102) that: “humanitarian law is the protection granted in a conflict situation such as the one in the West Bank and Gaza Strip, whereas human rights treaties were intended for the protection of citizens from their own government in times of peace.” In order to determine whether the instruments were applicable in the Occupied Palestinian Territory, the International Court of Justice first addressed the issue of the relationship between international humanitarian law and international human rights law, holding as follows: “106. ... the Court considers that the protection offered by human rights conventions does not cease in case of armed conflict, save through the effect of provisions for derogation of the kind to be found in Article 4 of the International Covenant on Civil and Political Rights. As regards the relationship between international humanitarian law and human rights law, there are thus three possible situations: some rights may be exclusively matters of international humanitarian law; others may be exclusively matters of human rights law; yet others may be matters of both these branches of international law. In order to answer the question put to it, the Court will have to take into consideration both these branches of international law, namely human rights law and, as lex specialis, international humanitarian law.” The International Court of Justice next considered the question whether the International Covenant on Civil and Political Rights was capable of applying outside the State ’ s national territory and whether it applied in the Occupied Palestinian Territory. It held as follows (references and citations omitted) : “ 108. The scope of application of the International Covenant on Civil and Political Rights is defined by Article 2, paragraph 1, thereof, which provides: ‘ Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognised in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. ’ This provision can be interpreted as covering only individuals who are both present within a State ’ s territory and subject to that State ’ s jurisdiction. It can also be construed as covering both individuals present within a State ’ s territory and those outside that territory but subject to that State ’ s jurisdiction. The Court will thus seek to determine the meaning to be given to this text. 109. The Court would observe that, while the jurisdiction of States is primarily territorial, it may sometimes be exercised outside the national territory. Considering the object and purpose of the International Covenant on Civil and Political Rights, it would seem natural that, even when such is the case, States Parties to the Covenant should be bound to comply with its provisions. The constant practice of the Human Rights Committee is consistent with this. Thus, the Committee has found the Covenant applicable where the State exercises its jurisdiction on foreign territory. It has ruled on the legality of acts by Uruguay in cases of arrests carried out by Uruguayan agents in Brazil or Argentina ... It decided to the same effect in the case of the confiscation of a passport by a Uruguayan consulate in Germany ... 110. The Court takes note in this connection of the position taken by Israel, in relation to the applicability of the Covenant, in its communications to the Human Rights Committee, and of the view of the Committee. In 1998, Israel stated that, when preparing its report to the Committee, it had had to face the question ‘ whether individuals resident in the occupied territories were indeed subject to Israel ’ s jurisdiction ’ for purposes of the application of the Covenant ... Israel took the position that ‘ the Covenant and similar instruments did not apply directly to the current situation in the occupied territories ’ ... The Committee, in its concluding observations after examination of the report, expressed concern at Israel ’ s attitude and pointed ‘ to the long-standing presence of Israel in [the occupied] territories, Israel ’ s ambiguous attitude towards their future status, as well as the exercise of effective jurisdiction by Israeli security forces therein ’ ... In 2003 in face of Israel ’ s consistent position, to the effect that ‘ the Covenant does not apply beyond its own territory, notably in the West Bank and Gaza ... ’, the Committee reached the following conclusion: ‘ in the current circumstances, the provisions of the Covenant apply to the benefit of the population of the occupied territories, for all conduct by the State Party ’ s authorities or agents in those territories that affect the enjoyment of rights enshrined in the Covenant and fall within the ambit of State responsibility of Israel under the principles of public international law ’ ... 111. In conclusion, the Court considers that the International Covenant on Civil and Political Rights is applicable in respect of acts done by a State in the exercise of its jurisdiction outside its own territory.” In addition, the International Court of Justice appeared to assume that, even in respect of extraterritorial acts, it would in principle be possible for a State to derogate from its obligations under the International Covenant on Civil and Political Rights, Article 4 § 1 of which provides: “In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.” Thus, in paragraph 136 of its Advisory Opinion, having considered whether the acts in question were justified under international humanitarian law on grounds of military exigency, the International Court of Justice held: “136. The Court would further observe that some human rights conventions, and in particular the International Covenant on Civil and Political Rights, contain provisions which States Parties may invoke in order to derogate, under various conditions, from certain of their conventional obligations. In this respect, the Court would however recall that the communication notified by Israel to the Secretary-General of the United Nations under Article 4 of the International Covenant on Civil and Political Rights concerns only Article 9 of the Covenant, relating to the right to freedom and security of person (see paragraph 127 above); Israel is accordingly bound to respect all the other provisions of that instrument.” 91. In its judgment Armed Activities on the Territory of the Congo (Democratic Republic of the Congo (DRC) v. Uganda ) of 19 December 2005, the International Court of Justice considered whether, during the relevant period, Uganda was an “Occupying Power” of any part of the territory of the Democratic Republic of the Congo, within the meaning of customary international law, as reflected in Article 42 of the Hague Regulations (§§ 172-73 of the judgment ). The International Court of Justice found that Ugandan forces were stationed in the province of Ituri and exercised authority there, in the sense that they had substituted their own authority for that of the Congolese government (§§ 174-76). The International Court of Justice continued: “178. The Court thus concludes that Uganda was the Occupying Power in Ituri at the relevant time. As such it was under an obligation, according to Article 43 of the Hague Regulations of 1907, to take all the measures in its power to restore, and ensure, as far as possible, public order and safety in the occupied area, while respecting, unless absolutely prevented, the laws in force in the DRC. This obligation comprised the duty to secure respect for the applicable rules of international human rights law and international humanitarian law, to protect the inhabitants of the occupied territory against acts of violence, and not to tolerate such violence by any third party. 179. The Court, having concluded that Uganda was an Occupying Power in Ituri at the relevant time, finds that Uganda ’ s responsibility is engaged both for any acts of its military that violated its international obligations and for any lack of vigilance in preventing violations of human rights and international humanitarian law by other actors present in the occupied territory, including rebel groups acting on their own account. 180. The Court notes that Uganda at all times has responsibility for all actions and omissions of its own military forces in the territory of the DRC in breach of its obligations under the rules of international human rights law and international humanitarian law which are relevant and applicable in the specific situation. ” The International Court of Justice established the facts relating to the serious breaches of human rights allegedly attributable to Uganda, in the occupied Ituri region and elsewhere (§§ 205-12). In order to determine whether the conduct in question constituted a breach of Uganda ’ s international obligations, the International Court of Justice recalled its finding in the above -cited Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory Advisory Opinion that both international humanitarian law and international human rights law would have to be taken into consideration and that international human rights instruments were capable of having an extraterritorial application, “particularly in occupied territories” (§ 216). The International Court of Justice next determined which were “the applicable rules of international human rights law and international humanitarian law”, by listing the international humanitarian and international human rights treaties to which both Uganda and the Democratic Republic of the Congo were party, together with the relevant principles of customary international law (§§ 217 ‑ 19). C. The duty to investigate alleged violations of the right to life in situations of armed conflict and occupation under international humanitarian law and international human rights law 92. Article 121 of the Geneva Convention (III) relative to the Treatment of Prisoners of War (of 12 August 1949) (“the Third Geneva Convention”) provides that an official enquiry must be held by the Detaining Power following the suspected homicide of a prisoner of war. Article 131 of the Fourth Geneva Convention provides: “Every death or serious injury of an internee, caused or suspected to have been caused by a sentry, another internee or any other person, as well as any death the cause of which is unknown, shall be immediately followed by an official enquiry by the Detaining Power. A communication on this subject shall be sent immediately to the Protecting Power. The evidence of any witnesses shall be taken, and a report including such evidence shall be prepared and forwarded to the said Protecting Power. If the enquiry indicates the guilt of one or more persons, the Detaining Power shall take all necessary steps to ensure the prosecution of the person or persons responsible.” The Geneva Conventions also place an obligation on each High Contracting Party to investigate and prosecute alleged grave breaches of the Conventions, including the wilful killing of protected persons (Articles 49 and 50 of the Geneva Convention (I) for the Amelioration of the Condition of the Sick and Wounded in the Field (of 12 August 1949) (“the First Geneva Convention”); Articles 50 and 51 of the Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (of 12 August 1949) (“the Second Geneva Convention”); Articles 129 and 130 of the Third Geneva Convention; and Articles 146 and 147 of the Fourth Geneva Convention). 93. In his report of 8 March 2006 on extrajudicial, summary or arbitrary executions ( E/CN.4/2006/53 ), the United Nations Special Rapporteur, Philip Alston, observed in connection with the right to life under Article 6 of the International Covenant on Civil and Political Rights in situations of armed conflict and occupation (footnotes omitted): “ 36. Armed conflict and occupation do not discharge the State ’ s duty to investigate and prosecute human rights abuses. The right to life is non-derogable regardless of circumstance. This prohibits any practice of not investigating alleged violations during armed conflict or occupation. As the Human Rights Committee has held, ‘ It is inherent in the protection of rights explicitly recognised as non-derogable ... that they must be secured by procedural guarantees ... The provisions of the [ International Covenant on Civil and Political Rights ] relating to procedural safeguards may never be made subject to measures that would circumvent the protection of non-derogable rights ’. It is undeniable that during armed conflicts circumstances will sometimes impede investigation. Such circumstances will never discharge the obligation to investigate – this would eviscerate the non-derogable character of the right to life – but they may affect the modalities or particulars of the investigation. In addition to being fully responsible for the conduct of their agents, in relation to the acts of private actors States are also held to a standard of due diligence in armed conflicts as well as peace. On a case-by-case basis a State might utilise less effective measures of investigation in response to concrete constraints. For example, when hostile forces control the scene of a shooting, conducting an autopsy may prove impossible. Regardless of the circumstances, however, investigations must always be conducted as effectively as possible and never be reduced to mere formality. ... ” 94. In its judgment in the Case of the “ Mapiripán Massacre ” v. Colombia of 15 September 2005, the Inter-American Court of Human Rights held, inter alia, in connection with the respondent State ’ s failure fully to investigate the massacre of civilians carried out by a paramilitary group with the alleged assistance of the State authorities: “ 238. In this regard, the Court recognises the difficult circumstances of Colombia, where its population and its institutions strive to attain peace. However, the country ’ s conditions, no matter how difficult, do not release a State Party to the American Convention of its obligations set forth in this treaty, which specifically continue in cases such as the instant one. The Court has argued that when the State conducts or tolerates actions leading to extra-legal executions, not investigating them adequately and not punishing those responsible, as appropriate, it breaches the duties to respect rights set forth in the Convention and to ensure their free and full exercise, both by the alleged victim and by his or her next of kin, it does not allow society to learn what happened, and it reproduces the conditions of impunity for this type of facts to happen once again.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 95. The applicants contended that their relatives were within the jurisdiction of the United Kingdom under Article 1 of the Convention at the moment of death and that, except in relation to the sixth applicant, the United Kingdom had not complied with its investigative duty under Article 2. 96. The Government accepted that the sixth applicant ’ s son had been within United Kingdom jurisdiction but denied that the United Kingdom had jurisdiction over any of the other deceased. They contended that, since the second and third applicants ’ relatives had been killed after the adoption of United Nations Security Council Resolution 1511 (see paragraph 16 above), the acts which led to their deaths were attributable to the United Nations and not to the United Kingdom. In addition, the Government contended that the fifth applicant ’ s case should be declared inadmissible for non-exhaustion of domestic remedies and that the fifth and sixth applicants no longer had victim status. A. Admissibility 1. Attribution 97. The Government pointed out that the operations that led to the deaths of the second and third applicants ’ relatives occurred after 16 October 2003, when the United Nations Security Council adopted Resolution 1511. Paragraph 13 of that Resolution authorised a Multinational Force to take “all necessary measures to contribute to the maintenance of security and stability in Iraq” (see paragraph 16 above). It followed that, in conducting the relevant operations in which the second and third applicants ’ relatives were shot, United Kingdom troops were not exercising the sovereign authority of the United Kingdom but the international authority of the Multinational Force acting pursuant to the binding decision of the United Nations Security Council. 98. The applicants stressed that the Government had not raised this argument at any stage during the domestic proceedings. Moreover, an identical argument had been advanced by the Government and rejected by the House of Lords in R. (on the application of Al-Jedda) (FC) (Appellant) v. Secretary of State for Defence (Respondent) [2007] UKHL 58. 99. The Court recalls that it is intended to be subsidiary to the national systems safeguarding human rights. It is, therefore, appropriate that the national courts should initially have the opportunity to determine questions of the compatibility of domestic law with the Convention and that, if an application is nonetheless subsequently brought before the Court, it should have the benefit of the views of the national courts, as being in direct and continuous contact with the forces of their countries. It is thus of importance that the arguments put by the Government before the national courts should be on the same lines as those put before this Court. In particular, it is not open to a Government to put to the Court arguments which are inconsistent with the position they adopted before the national courts ( see A. and Others v. the United Kingdom [GC], no. 3455/05, § 154, ECHR 2009 ). 100. The Government did not contend before the national courts that any of the killings of the applicants ’ relatives were not attributable to United Kingdom armed forces. The Court considers, therefore, that the Government are estopped from raising this objection in the present proceedings. 2. Jurisdiction 101. The Government further contended that the acts in question took place in southern Iraq and outside the United Kingdom ’ s jurisdiction under Article 1 of the Convention. The sole exception was the killing of the sixth applicant ’ s son, which occurred in a British military prison over which the United Kingdom did have jurisdiction. 102. The Court considers that the question whether the applicants ’ cases fall within the jurisdiction of the respondent State is closely linked to the merits of their complaints. It therefore joins this preliminary question to the merits. 3. Exhaustion of domestic remedies 103. The Government contended that the fifth applicant ’ s case should be declared inadmissible for non-exhaustion of domestic remedies. They pointed out that although he brought judicial review proceedings alleging breaches of his substantive and procedural rights under Articles 2 and 3, his claim was stayed pending resolution of the six test cases (see paragraph 7 3 above). After those claims had been resolved, it would have been open to the applicant to apply to the Divisional Court to lift the stay, but he did not do so. His case was not a shooting incident, and the domestic courts had not had the opportunity to consider the facts relevant to his claims that his son was within the jurisdiction of the United Kingdom and that there had been a breach of the procedural obligation. 104. The applicants invited the Court to reject this submission. A judicial - review claim had been lodged by the fifth applicant on 5 May 2004. It was, by agreement, stayed pending the outcome of the six test cases (see paragraph 73 above). The fifth applicant would have had no reasonable prospects of success if, after the House of Lords gave judgment in Al-Skeini and Others (Respondents) v. Secretary of State for Defence (Appellant) Al-Skeini and Others (Appellants) v. Secretary of State for Defence (Respondent) (Consolidated Appeals) [2007] UKHL 26, he had sought to revive and pursue his stayed judicial - review claim. The lower courts would have been bound by the House of Lords ’ interpretation of Article 1 and would have applied it so as to find that the applicant ’ s deceased son had not been within United Kingdom jurisdiction. 105. The Court observes that, according to the fifth applicant, his son died when, having been arrested by United Kingdom soldiers on suspicion of looting, he was driven in an army vehicle to the river and forced to jump in. His case is, therefore, distinguishable on its alleged facts from those of the first, second and fourth applicants, whose relatives were shot by British soldiers; the third applicant, whose wife was shot during exchange of fire between British troops and unknown gunmen; and the sixth applicant, whose son was killed while detained in a British military detention facility. It is true that the House of Lords in the Al-Skeini proceedings did not have before it a case similar to the fifth applicant ’ s, where an Iraqi civilian met his death having been taken into British military custody, but without being detained in a military prison. Nonetheless, the Court considers that the applicants are correct in their assessment that the fifth applicant would have had no prospects of success had he subsequently sought to pursue his judicial - review application in the domestic courts. Lord Brown, with whom the majority of the House of Lords agreed, made it clear that he preferred the approach to jurisdiction in the sixth applicant ’ s case taken by the Divisional Court, namely that jurisdiction arose in respect of Baha Mousa only because he died while detained in a British military prison (see paragraph 88 above). In these circumstances, the Court does not consider that the fifth applicant can be criticised for failing to attempt to revive his claim before the Divisional Court. It follows that the Government ’ s preliminary objection based on non-exhaustion of domestic remedies must be rejected. 4. Victim status 106. The Government submitted that the fifth and sixth applicants could no longer claim to be victims of any violations of their rights under Article 2, since the death of each of their sons had been fully investigated by the national authorities and compensation paid to the applicants. 107. The Court considers that this question is also closely linked and should be joined to the merits of the complaint under Article 2. 5. Conclusion on admissibility 108. The Court considers that the application raises serious questions of fact and law which are of such complexity that their determination should depend on an examination on the merits. It cannot, therefore, be considered manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, and no other ground for declaring it inadmissible has been established. It must therefore be declared admissible. B. Merits 1. Jurisdiction ( a ) The parties ’ submissions ( i ) The Government 109. The Government submitted that the leading authority on the concept of “jurisdiction” within the meaning of Article 1 of the Convention was the Court ’ s decision in Banković and Others (cited above). Banković and Others established that the fact that an individual had been affected by an act committed by a Contracting State or its agents was not sufficient to establish that he was within that State ’ s jurisdiction. Jurisdiction under Article 1 was “primarily” or “essentially” territorial and any extension of jurisdiction outside the territory of the Contracting State was “exceptional” and required “special justification in the particular circumstances of each case”. The Court had held in Banković and Others that the Convention rights could not be “divided and tailored”. Within its jurisdiction, a Contracting State was under an obligation to secure all the Convention rights and freedoms. The Court had also held in Banković and Others that the Convention was “ an instrument of European public order” and “ a multilateral treaty operating, subject to Article 56 of the Convention, in an essentially regional context and notably in the legal space ( espace juridique ) of the Contracting States”. The essentially territorial basis of jurisdiction reflected principles of international law and took account of the practical and legal difficulties faced by a State operating on another State ’ s territory, particularly in regions which did not share the values of the Council of Europe member States. 110. In the Government ’ s submission, the Grand Chamber in Banković and Others, having conducted a comprehensive review of the case-law, identified a limited number of exceptions to the territorial principle. The principal exception derived from the case-law on northern Cyprus and applied when a State, as a consequence of military action, exercised effective control of an area outside its national territory. Where the Court had found this exceptional basis of jurisdiction to apply, it had stressed that the State exercising effective control was thereby responsible for securing the entire range of substantive Convention rights in the territory in question (see Loizidou v. Turkey (preliminary objections), 23 March 1995, § 62, Series A no. 310; Cyprus v. Turkey [GC ], no. 25781/94, §§ 75-80, ECHR 2001 ‑ IV; Banković and Others, cited above, §§ 70-71; and Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, §§ 314-16, ECHR 2004 ‑ VII). Moreover, despite dicta to the contrary in the subsequent Chamber judgment in Issa and Others (cited above), the Grand Chamber in Banković and Others made it clear that the “effective control of an area” basis of jurisdiction could apply only within the legal space of the Convention. In addition to the control exercised by Turkey in northern Cyprus, the Court had applied this exception in relation to only one other area, Transdniestria, which also fell within the territory of another Contracting State. Any other approach would risk requiring the State to impose culturally alien standards, in breach of the principle of sovereign self ‑ determination. 111. According to the Government, the Court ’ s case-law on Article 56 of the Convention further indicated that a State would not be held to exercise Article 1 jurisdiction over an overseas territory merely by virtue of exercising effective control there ( see Quark Fishing Ltd v. the United Kingdom (dec.), no. 15305/06, ECHR 2006 ‑ XIV ). If the “ effective control of territory ” exception were held to apply outside the territories of the Contracting States, this would lead to the conclusion that a State was free to choose whether or not to extend the Convention and its Protocols to a non ‑ metropolitan territory outside the Convention “ espace juridique ” over which it might in fact have exercised control for decades, but was not free to choose whether to extend the Convention to territories outside that space over which it exercised effective control as a result of military action only temporarily, for example only until peace and security could be restored. 112. The Government submitted that, since Iraq fell outside the legal space of the Convention, the “effective control of an area” exceptional basis of jurisdiction could not apply. In any event, the United Kingdom did not have “effective control” over any part of Iraq during the relevant time. This was the conclusion of the domestic courts, which had all the available evidence before them. The number of Coalition Forces, including United Kingdom forces, was small: in south -east Iraq, an area of 96,000 square kilometres with a population of 4.6 million, there were 14,500 Coalition troops, including 8,150 United Kingdom troops. United Kingdom troops operated in the Al - Basra and Maysan provinces, which had a population of 2.76 million for 8,119 troops. United Kingdom forces in Iraq were faced with real practical difficulties in restoring conditions of security and stability so as to enable the Iraqi people freely to determine their political future. The principal reason for this was that at the start of the occupation there was no competent system of local law enforcement in place, while at the same time there was widespread violent crime, terrorism and tribal fighting involving the use of light and heavy weapons. 113. Governing authority in Iraq during the occupation was exercised by the Coalition Provisional Authority (CPA), which was governed by United States Ambassador Paul Bremer and which was not a subordinate authority of the United Kingdom. In addition, from July 2003 there was a central Iraqi Governing Council and a number of local Iraqi councils. The status of the CPA and Iraqi administration was wholly different from that of the “Turkish Republic of Northern Cyprus” (the “ TRNC ” ) in Cyprus or the “Moldovan Republic of Transdniestria” (the “ MRT ” ) in Transdniestria, which were both characterised by the Court as “self ‑ proclaimed authorities which are not recognised by the international community”. The authority of the CPA and the Iraqi administration was recognised by the international community, through the United Nations Security Council. Moreover, the purpose of the United Kingdom ’ s joint occupation of Iraq was to transfer authority as soon as possible to a representative Iraqi administration. In keeping with this purpose, the occupation lasted for only just over a year. 114. In the Government ’ s submission, the fact that between May 2003 and June 2004 the United Kingdom was an Occupying Power within the meaning of the Hague Regulations (see paragraph 89 above) did not, in itself, give rise to an obligation to secure the Convention rights and freedoms to the inhabitants of south -east Iraq. As an Occupying Power the United Kingdom did not have sovereignty over Iraq and was not entitled to treat the area under its occupation as its own territory or as a colony subject to its complete power and authority. The Hague Regulations did not confer on the United Kingdom the power to amend the laws and Constitution of Iraq so as to conform to the United Kingdom ’ s own domestic law or regional multilateral international obligations such as the Convention. On the contrary, the Hague Regulations set limits on the United Kingdom ’ s powers, notably the obligation to respect the laws in force in Iraq “ unless absolutely prevented”. Moreover, the resolutions passed by the United Nations Security Council recognised that governing authority in Iraq during the occupation was to be exercised by the CPA and that the aim of the occupation was to transfer authority as soon as possible to a representative Iraqi administration. It followed that the international legal framework, far from establishing that the United Kingdom was obliged to secure Convention rights in Iraq, established instead that the United Kingdom would have been acting contrary to its international obligations if it had sought to modify the Constitution of Iraq so as to comply with the Convention. In any event, the Court ’ s case-law demonstrated that it approached the question whether a State exercised jurisdiction extraterritorially as one of fact, informed by the particular nature and history of the Convention. The obligations imposed by the Fourth Geneva Convention and the Hague Regulations were carefully tailored to the circumstances of occupation and could not in themselves have consequences for the very different issue of jurisdiction under the Convention. 115. The Government accepted that it was possible to identify from the case-law a number of other exceptional categories where jurisdiction could be exercised by a State outside its territory and outside the Convention region. In Banković and Others (cited above) the Grand Chamber referred to other cases involving the activities of diplomatic or consular agents abroad and on board craft and vessels registered in or flying the flag of the State. In Banković and Others, the Court also cited as an example Drozd and Janousek v. France and Spain ( 26 June 1992, Series A no. 240 ), which demonstrated that jurisdiction could be exercised by a State if it brought an individual before its own court, sitting outside its territory, to apply its own criminal law. In its judgment in Öcalan (cited above, § 91), the Grand Chamber held that Turkey had exercised jurisdiction over the applicant when he was “arrested by members of the Turkish security forces inside an aircraft registered in Turkey in the international zone of Nairobi Airport” and “physically forced to return to Turkey by Turkish officials and was under their authority and control following his arrest and return to Turkey”. In the Government ’ s submission, none of these exceptions applied in the first, second, third and fourth applicants ’ cases. 116. The Government contended that the applicants ’ submission that, in shooting their relatives, the United Kingdom soldiers exercised “authority and control” over the deceased, so as to bring them within the United Kingdom ’ s jurisdiction, was directly contrary to the decision in Banković and Others (cited above). In Banković and Others, the Grand Chamber considered the applicability of the Convention to extraterritorial military operations generally, having regard, inter alia, to State practice and Article 15 of the Convention, and concluded that the Convention did not apply to the military action of the respondent States which resulted in those applicants ’ relatives ’ deaths. Equally, in the present case, the military action of United Kingdom soldiers in shooting the applicants ’ relatives while carrying out military security operations in Iraq did not constitute an exercise of jurisdiction over them. No distinction could be drawn in this respect between a death resulting from a bombing and one resulting from a shooting in the course of a ground operation. 117. The Government rejected the applicants ’ argument that a jurisdictional link existed because the United Kingdom soldiers were exercising “legal authority” over the deceased, derived from the obligation under the Hague Regulations to ensure “public order and safety” in the occupied territory. The meaning of Article 1 of the Convention was autonomous and could not be determined by reference to wholly distinct provisions of international humanitarian law. Moreover, the duty relied on was owed to every Iraqi citizen within the occupied territory and, if the applicants were correct, the United Kingdom would have been required to secure Convention rights to them all. Nor could it be said that United Kingdom troops at the relevant time were exercising “public powers ” pursuant to treaty arrangements (see Banković and Others, cited above, § 73). In fact, United Kingdom troops were exercising military power in an effort to create a situation in which governmental functions could be exercised and the rule of law could properly operate. No sensible distinction could be drawn between the different types of military operation undertaken by them. There was no basis for concluding that the applicability of the Convention should turn upon the particular activity that a soldier was engaged in at the time of the alleged violation, whether street patrol, ground offensive or aerial bombardment. 118. In conclusion, the Government submitted that the domestic courts were correct that the United Kingdom did not exercise any Article 1 jurisdiction over the relatives of the first to fourth applicants at the time of their deaths. The cases could not be distinguished from that of the deceased in Banković and Others (cited above). Nor were the facts of the fifth applicant ’ s case sufficient to distinguish it in this respect from those of the first to fourth applicants. The fifth applicant ’ s son was not arrested in circumstances similar to those which founded jurisdiction in Öcalan (cited above). As a suspected looter, in the situation of extreme public disorder in the immediate aftermath of the cessation of major combat activities, he was physically required by United Kingdom soldiers to move from the place of looting to another location. The acts of the United Kingdom soldiers involved an assertion of military power over the fifth applicant ’ s son, but no more. The Government accepted that the sixth applicant ’ s son was within United Kingdom jurisdiction when he died, but only on the basis found by the Divisional Court and subsequently by Lord Brown, with whom Lords Rodger and Carswell and Baroness Hale agreed, namely that jurisdiction was established when the deceased was detained in a United Kingdom-run military detention facility located in a United Kingdom base, essentially by analogy with the extraterritorial exception made for embassies. At the hearing before the Court, counsel for the Government confirmed that it was the Government ’ s position that, for example, an individual being taken to a British detention facility on foreign soil in a British military vehicle would not fall within the United Kingdom ’ s jurisdiction until the moment the vehicle and individual passed within the perimeter of the facility. 119. This did not mean that United Kingdom troops were free to act with impunity in Iraq. As Lord Bingham observed in his opinion in the House of Lords, the acts of the United Kingdom forces were subject to and regulated by international humanitarian law. United Kingdom soldiers in Iraq were also subject to United Kingdom domestic criminal law and could be prosecuted in the national courts. The International Criminal Court had jurisdiction to prosecute war crimes where the State was unwilling or unable to prosecute. Civil claims in tort could also be brought in the United Kingdom courts against United Kingdom agents and authorities alleged to have caused injury to individuals in Iraq. ( ii ) The applicants 120. The applicants accepted that jurisdiction under Article 1 was essentially territorial. However, they underlined that it was not exclusively so and that it was possible for a Contracting State to exercise jurisdiction extraterritorially. The procedure under Article 56 allowed States to extend the reach of the Convention to other territories, with due regard to local requirements, by means of a notified declaration. However, it was clear from the case-law that Article 56 was not an exclusive mechanism for extraterritorial applicability. 121. The applicants submitted that the case-law of the Court and Commission recognised the exercise by States of jurisdiction extraterritorially through the principles of both “State agent authority” and “effective control of an area”. The first reference to “State agent authority” jurisdiction was in the Commission ’ s admissibility decision in Cyprus v. Turkey ( nos. 6780/74 and 6950/75, Commission decision of 26 May 1975, DR 2, p. 125, at p. 136 ), when the Commission observed that “authorised agents of the State ... not only remain under its jurisdiction when abroad but bring any other persons or property ‘ within the jurisdiction ’ of that State, to the extent that they exercise authority over such persons or property”. This principle was subsequently applied in Cyprus v. Turkey ( nos. 6780/74 and 6950/75, Commission ’ s report of 10 July 1976 ), when the Commission found that the actions of Turkish soldiers in Cyprus involved the exercise of Turkish jurisdiction. These actions comprised the killing of civilians, including individuals subject to the order of an officer and others shot while attempting to recover possessions from property under Turkish control; the rape of women in empty houses and on the street; the arbitrary detention of civilians; cruelty to detainees; the displacement of civilians; and the military confiscation of property. Since Turkey did not accept the Court ’ s jurisdiction until 1990, the case was never examined by the Court. The Commission ’ s report, however, did not support the suggestion that military custodial authority alone constituted a relationship of sufficient authority and control. 122. The applicants pointed out that in the later cases against Turkey concerning northern Cyprus which were examined by the Commission and the Court during the 1990s, Turkey accepted that its jurisdiction under Article 1 would be engaged in respect of the direct acts of Turkish military personnel. However, the Turkish Government shifted ground and argued that it did not have jurisdiction because the acts in question were not committed by Turkish agents but were instead attributable to an autonomous local administration installed in 1983, the “TRNC”. The Court, in Loizidou (preliminary objections) and in Cyprus v. Turkey ( both cited above ), countered this argument by elaborating the principle of “effective control of an area”, which applied ( see Loizidou (preliminary objections), § 62 ) : “when as a consequence of military action – whether lawful or unlawful – [a Contracting State] exercises effective control of an area outside its national territory. The obligation to secure, in such an area, the rights and freedoms set out in the Convention derives from the fact of such control whether it be exercised directly, through its armed forces, or through a subordinate local administration. ” In these cases, the Court did not give any indication that the “State agent authority” principle had been supplanted. In fact, in Loizidou (preliminary objections), before setting out the principle of “effective control of an area” jurisdiction, the Court observed (§ 6 2 ) that: “In addition, the responsibility of Contracting Parties can be involved because of acts of their authorities, whether performed within or outside national boundaries, which produce effects outside their own territory (see the Drozd and Janousek v. France and Spain judgment of 26 June 1992, Series A no. 240, p. 29, § 91). ” Furthermore, its conclusion on the question whether the alleged violation was capable of falling within Turkish jurisdiction relied on both grounds equally (§ 63): “In this connection the respondent Government have acknowledged that the applicant ’ s loss of control of her property stems from the occupation of the northern part of Cyprus by Turkish troops and the establishment there of the ‘ TRNC ’. Furthermore, it has not been disputed that the applicant was prevented by Turkish troops from gaining access to her property.” In the Court ’ s subsequent case-law, the two principles had continued to be placed side by side (see Banković and Others, cited above, §§ 69-73; Issa and Others, cited above, §§ 69-71; Andreou v. Turkey (dec.), no. 45653/99, 3 June 2008; and Solomou and Others v. Turkey, no. 36832/97, §§ 44-45, 24 June 2008 ). There was no precedent of the Court to suggest that “ State agent authority ” jurisdiction was inapt as a means of analysing direct actions by military State agents exercising authority. 123. The applicants argued that their dead family members fell within the United Kingdom ’ s jurisdiction under the “ State agent authority ” principle. The Government had accepted, in respect of the sixth applicant ’ s son, that the exercise of authority and control by British military personnel in Iraq was capable of engaging the United Kingdom ’ s extraterritorial jurisdiction. However, jurisdiction in extraterritorial detention cases did not rest on the idea of a military prison as a quasi-territorial enclave. Jurisdiction in respect of the sixth applicant ’ s son would equally have arisen had he been tortured and killed while under arrest at the hotel where he worked or in a locked army vehicle parked outside. Moreover, the authority and control exercised by military personnel was not limited in principle to actions as custodians, even if the arrest and detention of persons outside State territory could be seen as a classic instance of State agent authority (as was argued by the respondent Governments in Banković and Others, cited above, § 37). 124. The applicants submitted that the deceased relatives of all six applicants fell within United Kingdom jurisdiction by virtue of the authority and control exercised over them by United Kingdom State agents. They emphasised that British armed forces had responsibility for public order in Iraq, maintaining the safety and security of local civilians and supporting the civil administration. In performing these functions, the British armed forces were operating within the wider context of the United Kingdom ’ s occupation of south -east Iraq. The control and authority was also exercised through the CPA South Regional Office, which was staffed primarily by British personnel. The individuals killed were civilians to whom the British armed forces owed the duty of safety and security. There was thus a particular relationship of authority and control between the soldiers and the civilians killed. To find that these individuals fell within the authority of the United Kingdom armed forces would not require the acceptance of the impact ‑ based approach to jurisdiction which was rejected in Banković and Others (cited above), but would instead rest on a particular relationship of authority and control. In the alternative, the applicants argued that, at least in respect of the deceased relatives of the second, fourth, fifth and sixth applicants, the British soldiers exercised sufficient authority and control to bring the victims within the United Kingdom ’ s jurisdiction. 125. The applicants further contended that their dead relatives fell within United Kingdom jurisdiction because, at the relevant time, the United Kingdom was in effective control of south -east Iraq. It was their case that where, as a matter of international law, territory was occupied by a State as an Occupying Power, because that territory was actually placed under the authority of that State ’ s hostile army (see Article 42 of the Hague Regulations; paragraph 89 above), that was sufficient to constitute extraterritorial jurisdiction under Article 1 of the Convention. This consequence of belligerent occupation reflected the approach in international law, both as regards extraterritorial jurisdiction and extraterritorial application of human rights based on “jurisdiction”. 126. They rejected the idea that the “effective control of an area” basis of jurisdiction could apply only within the legal space of the Convention. Furthermore, they reasoned that to require a State to exert complete control, similar to that exercised within its own territory, would lead to the perverse position whereby facts disclosing a violation of the Convention would, instead of entitling the victim to a remedy, form the evidential basis for a finding that the State did not exercise jurisdiction. Similarly, defining the existence of control over an area by reference to troop numbers alone would be uncertain, allow evasion of responsibility and promote arbitrariness. The application of the Convention should influence the actions of the Contracting States, prompting careful consideration of military intervention and ensuring sufficient troop numbers to meet their international obligations. The applicants endorsed the approach suggested by Sedley LJ in the Court of Appeal (see paragraph 80 above), that a Contracting State in military occupation was under a duty to do everything possible to keep order and protect essential civil rights. While the Court ’ s case-law (the northern Cyprus cases and Ilaşcu and Others, cited above ) included details of numbers of military personnel deployed, this was relevant to establishing whether a territory had actually been placed under the authority of a hostile army, in cases where the respondent States (Turkey and Russia) denied being in occupation. Where, as in the present case, the respondent State accepted that it was in occupation of the territory, such an assessment was unnecessary. 127. The applicants argued that the duty of an occupying State under international humanitarian law to apply the domestic law of the territorial State and not to impose its own law could not be used to evade jurisdiction under the Convention, since the “effective control of an area” basis of jurisdiction applied also to unlawful occupation. They referred to the judgment of the International Court of Justice in Armed Activities on the Territory of the Congo and its Advisory Opinion Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (see paragraphs 9 0 - 9 1 above), where it found that the occupying State was under a duty to apply international human rights law. The clear principle emerging from these cases was that belligerent occupation in international law was a basis for the recognition of extraterritorial human rights jurisdiction. ( iii ) The third - party interveners 128. The third-party interveners (see paragraph 6 above) emphasised that the Convention was adopted in the aftermath of the events in Europe of the 1930s and 1940s, when appalling human rights abuses were carried out by military forces in occupied territories. It was inconceivable that the drafters of the Convention should have considered that the prospective responsibilities of States should be confined to violations perpetrated on their own territories. Moreover, public international law required that the concept of “jurisdiction” be interpreted in the light of the object and purpose of the particular treaty. The Court had repeatedly had regard to the Convention ’ s special character as an instrument for human rights protection. It was relevant that one of the guiding principles under international human rights law, which had been applied by the United Nations Human Rights Committee and the International Court of Justice when considering the conduct of States outside their territory, was the need to avoid unconscionable double standards, by allowing a State to perpetrate violations on foreign territory which would not be permitted on its own territory. 129. The third-party interveners further emphasised that it was common ground between the international and regional courts and human rights bodies that, when determining whether the acts or omissions of a State ’ s agents abroad fall within its “jurisdiction”, regard must be had to the existence of control, authority or power of that State over the individual in question. When the agents of the State exercised such control, authority or power over an individual outside its territory, that State ’ s obligation to respect human rights continued. This was a factual test, to be determined with regard to the circumstances of the particular act or omission of the State agents. Certain situations, such as military occupations, created a strong presumption that individuals were under the control, authority or power of the occupying State. Indeed, one principle which emerged from the case-law of the International Court of Justice, inter alia (see paragraphs 90-91 above), was that once a situation was qualified as an occupation within the meaning of international humanitarian law, there was a strong presumption of “jurisdiction” for the purposes of the application of human rights law. (b) The Court ’ s assessment (i) General principles relevant to jurisdiction under Article 1 of the Convention 130. Article 1 of the Convention reads as follows: “The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of [the] Convention.” As provided by this Article, the engagement undertaken by a Contracting State is confined to “securing” (“ reconnaître ” in the French text) the listed rights and freedoms to persons within its own “jurisdiction” (see Soering v. the United Kingdom, 7 July 1989, § 8 6, Series A no. 161, and Banković and Others, cited above, § 66 ). “Jurisdiction” under Article 1 is a threshold criterion. The exercise of jurisdiction is a necessary condition for a Contracting State to be able to be held responsible for acts or omissions imputable to it which give rise to an allegation of the infringement of rights and freedoms set forth in the Convention (see Ilaşcu and Others, cited above, § 311 ). (α) The territorial principle 131. A State ’ s jurisdictional competence under Article 1 is primarily territorial (see Soering, cited above, § 8 6; Banković and Others, cited above, §§ 61 and 67; and Ilaşcu and Others, cited above, § 312). Jurisdiction is presumed to be exercised normally throughout the State ’ s territory ( see Ilaşcu and Others, cited above, § 312, and Assanidze v. Georgia [GC], no. 71503/01, § 139, ECHR 2004 ‑ II ). Conversely, acts of the Contracting States performed, or producing effects, outside their territories can constitute an exercise of jurisdiction within the meaning of Article 1 only in exceptional cases ( see Banković and Others, cited above, § 67). 132. To date, the Court in its case-law has recognised a number of exceptional circumstances capable of giving rise to the exercise of jurisdiction by a Contracting State outside its own territorial boundaries. In each case, the question whether exceptional circumstances exist which require and justify a finding by the Court that the State was exercising jurisdiction extraterritorially must be determined with reference to the particular facts. (β) State agent authority and control 133. The Court has recognised in its case-law that, as an exception to the principle of territoriality, a Contracting State ’ s jurisdiction under Article 1 may extend to acts of its authorities which produce effects outside its own territory (see Drozd and Janousek, cited above, § 91; Loizidou (preliminary objections), cited above, § 62; Loizidou v. Turkey (merits), 18 December 1996, § 52, Reports of Judgments and Decisions 1996 ‑ VI; and Banković and Others, cited above, § 69). The statement of principle, as it appears in Drozd and Janousek and the other cases just cited, is very broad: the Court states merely that the Contracting Party ’ s responsibility “can be involved” in these circumstances. It is necessary to examine the Court ’ s case-law to identify the defining principles. 134. Firstly, it is clear that the acts of diplomatic and consular agents, who are present on foreign territory in accordance with provisions of international law, may amount to an exercise of jurisdiction when these agents exert authority and control over others ( see Banković and Others, cited above, § 73; see also X. v. Germany, no. 1611/62, Commission decision of 25 September 1965, Yearbook 8, p. 158; X. v. the United Kingdom, no. 7547/76, Commission decision of 15 December 1977, DR 12, p. 73; and M. v. Denmark, no. 17392/90, Commission decision of 14 October 199 2, DR 73, p. 193 ). 135. Secondly, the Court has recognised the exercise of extraterritorial jurisdiction by a Contracting State when, through the consent, invitation or acquiescence of the Government of that territory, it exercises all or some of the public powers normally to be exercised by that Government ( see Banković and Others, cited above, § 71). Thus, where, in accordance with custom, treaty or other agreement, authorities of the Contracting State carry out executive or judicial functions on the territory of another State, the Contracting State may be responsible for breaches of the Convention thereby incurred, as long as the acts in question are attributable to it rather than to the territorial State ( see Drozd and Janousek, cited above; Gentilhomme and Others v. France, nos. 48205/99, 48207/99 and 48209/99, 14 May 2002; and X. and Y. v. Switzerland, nos. 7289/75 and 7349/76, Commission decision of 14 July 1977, DR 9, p. 57). 136. In addition, the Court ’ s case-law demonstrates that, in certain circumstances, the use of force by a State ’ s agents operating outside its territory may bring the individual thereby brought under the control of the State ’ s authorities into the State ’ s Article 1 jurisdiction. This principle has been applied where an individual is taken into the custody of State agents abroad. For example, in Öcalan (cited above, § 91 ), the Court held that “directly after being handed over to the Turkish officials by the Kenyan officials, the applicant was effectively under Turkish authority and therefore within the ‘ jurisdiction ’ of that State for the purposes of Article 1 of the Convention, even though in this instance Turkey exercised its authority outside its territory”. In Issa and Others (cited above), the Court indicated that, had it been established that Turkish soldiers had taken the applicants ’ relatives into custody in northern Iraq, taken them to a nearby cave and executed them, the deceased would have been within Turkish jurisdiction by virtue of the soldiers ’ authority and control over them. In Al-Saadoon and Mufdhi v. the United Kingdom ( (dec.), no. 61498/08, §§ 86-89, 30 June 2009 ), the Court held that two Iraqi nationals detained in British-controlled military prisons in Iraq fell within the jurisdiction of the United Kingdom, since the United Kingdom exercised total and exclusive control over the prisons and the individuals detained in them. Finally, in Medvedyev and Others v. France ( [GC], no. 3394/03, § 67, ECHR 2010 ), the Court held that the applicants were within French jurisdiction for the purposes of Article 1 of the Convention by virtue of the exercise by French agents of full and exclusive control over a ship and its crew from the time of its interception in international waters. The Court does not consider that jurisdiction in the above cases arose solely from the control exercised by the Contracting State over the buildings, aircraft or ship in which the individuals were held. What is decisive in such cases is the exercise of physical power and control over the person in question. 137. It is clear that, whenever the State, through its agents, exercises control and authority over an individual, and thus jurisdiction, the State is under an obligation under Article 1 to secure to that individual the rights and freedoms under Section I of the Convention that are relevant to the situation of that individual. In this sense, therefore, the Convention rights can be “divided and tailored” (compare Banković and Others, cited above, § 75). (γ) Effective control over an area 138. Another exception to the principle that jurisdiction under Article 1 is limited to a State ’ s own territory occurs when, as a consequence of lawful or unlawful military action, a Contracting State exercises effective control of an area outside that national territory. The obligation to secure, in such an area, the rights and freedoms set out in the Convention, derives from the fact of such control, whether it be exercised directly, through the Contracting State ’ s own armed forces, or through a subordinate local administration ( see Loizidou (preliminary objections), cited above, § 62; Cyprus v. Turkey, cited above, § 76; Banković and Others, cited above, § 70; Ilaşcu and Others, cited above, §§ 314-16; and Loizidou (merits), cited above, § 52). Where the fact of such domination over the territory is established, it is not necessary to determine whether the Contracting State exercises detailed control over the policies and actions of the subordinate local administration. The fact that the local administration survives as a result of the Contracting State ’ s military and other support entails that State ’ s responsibility for its policies and actions. The controlling State has the responsibility under Article 1 to secure, within the area under its control, the entire range of substantive rights set out in the Convention and those additional Protocols which it has ratified. It will be liable for any violations of those rights ( see Cyprus v. Turkey, cited above, § § 76- 77). 139. It is a question of fact whether a Contracting State exercises effective control over an area outside its own territory. In determining whether effective control exists, the Court will primarily have reference to the strength of the State ’ s military presence in the area (see Loizidou (merits), cited above, §§ 16 and 56, and Ilaşcu and Others, cited above, § 387). Other indicators may also be relevant, such as the extent to which its military, economic and political support for the local subordinate administration provides it with influence and control over the region (see Ilaşcu and Others, cited above, §§ 388-94). 140. The “effective control” principle of jurisdiction set out above does not replace the system of declarations under Article 56 of the Convention (formerly Article 63) which the States decided, when drafting the Convention, to apply to territories overseas for whose international relations they were responsible. Article 56 § 1 provides a mechanism whereby any State may decide to extend the application of the Convention, “with due regard ... to local requirements ”, to all or any of the territories for whose international relations it is responsible. The existence of this mechanism, which was included in the Convention for historical reasons, cannot be interpreted in present conditions as limiting the scope of the term “jurisdiction” in Article 1. The situations covered by the “effective control” principle are clearly separate and distinct from circumstances where a Contracting State has not, through a declaration under Article 56, extended the Convention or any of its Protocols to an overseas territory for whose international relations it is responsible (see Loizidou (preliminary objections), cited above, §§ 86-89, and Quark Fishing Ltd, cited above). (δ) The legal space (“ espace juridique ”) of the Convention 141. The Convention is a constitutional instrument of European public order (see Loizidou (preliminary objections), cited above, § 75). It does not govern the actions of States not Parties to it, nor does it purport to be a means of requiring the Contracting States to impose Convention standards on other States (see Soering, cited above, § 86). 142. The Court has emphasised that, where the territory of one Convention State is occupied by the armed forces of another, the occupying State should in principle be held accountable under the Convention for breaches of human rights within the occupied territory, because to hold otherwise would be to deprive the population of that territory of the rights and freedoms hitherto enjoyed and would result in a “vacuum” of protection within the “legal space of the Convention ” (see Cyprus v. Turkey, cited above, § 78, and Banković and Others, cited above, § 80). However, the importance of establishing the occupying State ’ s jurisdiction in such cases does not imply, a contrario, that jurisdiction under Article 1 of the Convention can never exist outside the territory covered by the Council of Europe member States. The Court has not in its case-law applied any such restriction (see, among other examples, Öcalan; Issa and Others; Al ‑ Saadoon and Mufdhi; and Medvedyev and Others, all cited above). (ii) Application of these principles to the facts of the case 143. In determining whether the United Kingdom had jurisdiction over any of the applicants ’ relatives when they died, the Court takes as its starting - point that, on 20 March 2003, the United Kingdom together with the United States of America and their Coalition partners, through their armed forces, entered Iraq with the aim of displacing the Ba ’ ath regime then in power. This aim was achieved by 1 May 2003, when major combat operations were declared to be complete and the United States of America and the United Kingdom became Occupying Powers within the meaning of Article 42 of the Hague Regulations (see paragraph 89 above). 144. As explained in the letter dated 8 May 2003 sent jointly by the Permanent Representatives of the United Kingdom and the United States of America to the President of the United Nations Security Council (see paragraph 11 above), the United States of America and the United Kingdom, having displaced the previous regime, created the CPA “to exercise powers of government temporarily”. One of the powers of government specifically referred to in the letter of 8 May 2003 to be exercised by the United States of America and the United Kingdom through the CPA was the provision of security in Iraq, including the maintenance of civil law and order. The letter further stated that “ [t] he United States, the United Kingdom and Coalition partners, working through the Coalition Provisional Authority, shall, inter alia, provide for security in and for the provisional administration of Iraq, including by ... assuming immediate control of Iraqi institutions responsible for military and security matters ”. 145. In its first legislative act, CPA Regulation No. 1 of 16 May 2003, the CPA declared that it would “ exercise powers of government temporarily in order to provide for the effective administration of Iraq during the period of transitional administration, to restore conditions of security and stability ” (see paragraph 12 above). 146. The contents of the letter of 8 May 2003 were noted by the Security Council in Resolution 1483, adopted on 22 May 2003. This Resolution gave further recognition to the security role which had been assumed by the United States of America and the United Kingdom when, in paragraph 4, it called upon the Occupying Powers “to promote the welfare of the Iraqi people through the effective administration of the territory, including in particular working towards the restoration of conditions of security and stability ” (see paragraph 14 above). 147. During this period, the United Kingdom had command of the military division Multinational Division (South - East), which included the province of Al-Basra, where the applicants ’ relatives died. From 1 May 2003 onwards the British forces in Al-Basra took responsibility for maintaining security and supporting the civil administration. Among the United Kingdom ’ s security tasks were patrols, arrests, anti-terrorist operations, policing of civil demonstrations, protection of essential utilities and infrastructure and protecting police stations (see paragraph 21 above). 148. In July 2003 the Governing Council of Iraq was established. The CPA remained in power, although it was required to consult with the Governing Council (see paragraph 15 above). In Resolution 1511, adopted on 16 October 2003, the United Nations Security Council underscored the temporary nature of the exercise by the CPA of the authorities and responsibilities set out in Resolution 1483. It also authorised “a Multinational Force under unified command to take all necessary measures to contribute to the maintenance of security and stability in Iraq” (see paragraph 16 above). United Nations Security Council Resolution 1546, adopted on 8 June 2004, endorsed “the formation of a sovereign interim government of Iraq ... which will assume full responsibility and authority by 30 June 2004 for governing Iraq” (see paragraph 18 above). In the event, the occupation came to an end on 28 June 2004, when full authority for governing Iraq passed to the interim Iraqi government from the CPA, which then ceased to exist (see paragraph 19 above). (iii) Conclusion as regards jurisdiction 149. It can be seen, therefore, that following the removal from power of the Ba ’ ath regime and until the accession of the interim Iraqi government, the United Kingdom (together with the United States of America ) assumed in Iraq the exercise of some of the public powers normally to be exercised by a sovereign government. In particular, the United Kingdom assumed authority and responsibility for the maintenance of security in south -east Iraq. In these exceptional circumstances, the Court considers that the United Kingdom, through its soldiers engaged in security operations in Basra during the period in question, exercised authority and control over individuals killed in the course of such security operations, so as to establish a jurisdictional link between the deceased and the United Kingdom for the purposes of Article 1 of the Convention. 150. Against this background, the Court recalls that the deaths at issue in the present case occurred during the relevant period: the fifth applicant ’ s son died on 8 May 2003; the first and fourth applicants ’ brothers died in August 2003; the sixth applicant ’ s son died in September 2003; and the spouses of the second and third applicants died in November 2003. It is not disputed that the deaths of the first, second, fourth, fifth and sixth applicants ’ relatives were caused by the acts of British soldiers during the course of or contiguous to security operations carried out by British forces in various parts of Basra City. It follows that in all these cases there was a jurisdictional link for the purposes of Article 1 of the Convention between the United Kingdom and the deceased. The third applicant ’ s wife was killed during an exchange of fire between a patrol of British soldiers and unidentified gunmen and it is not known which side fired the fatal bullet. The Court considers that, since the death occurred in the course of a United Kingdom security operation, when British soldiers carried out a patrol in the vicinity of the applicant ’ s home and joined in the fatal exchange of fire, there was a jurisdictional link between the United Kingdom and this deceased also. 2. Alleged breach of the investigative duty under Article 2 of the Convention 151. The applicants did not complain before the Court of any substantive breach of the right to life under Article 2. Instead they complained that the Government had not fulfilled its procedural duty to carry out an effective investigation into the killings. Article 2 of the Convention provides as follows: “1. Everyone ’ s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. 2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection.” ( a ) The parties ’ submissions ( i ) The Government 152. The Government reasoned that the procedural duty under Article 2 had to be interpreted in harmony with the relevant principles of international law. Moreover, any implied duty should not be interpreted in such a way as to place an impossible or disproportionate burden on a Contracting State. The United Kingdom did not have full control over the territory of Iraq and, in particular, did not have legislative, administrative or judicial competence. If the investigative duty were to apply extraterritorially, it had to take account of these circumstances, and also of the very difficult security conditions in which British personnel were operating. 153. The Government accepted that the investigations into the deaths of the first, second and third applicants ’ relatives were not sufficiently independent for the purposes of Article 2, since in each case the investigation was carried out solely by the Commanding Officers of the soldiers alleged to be responsible. However, they submitted that the investigations carried out in respect of the deaths of the fourth and fifth applicants ’ relatives complied with Article 2. Nor had there been any violation of the investigative duty in respect of the sixth applicant; indeed, he did not allege that the investigation in his case had failed to comply with Article 2. 154. The Government emphasised, generally, that the Royal Military Police investigators were institutionally independent of the armed forces. They submitted that the Court of Appeal had been correct in concluding that the Special Investigation Branch of the Royal Military Police was capable of conducting independent investigations (see paragraph 8 2 above), although Brooke LJ had also commented that the task of investigating loss of life “must be completely taken away from the military chain of command and vested in the [Royal Military Police] ”. The role of the military chain of command in notifying the Special Investigation Branch of an incident requiring investigation, and its subsequent role in referring cases investigated by the Special Investigation Branch to the Army Prosecuting Authority did not, however, mean that those investigations lacked independence as required by Articles 2 or 3 (see Cooper v. the United Kingdom [GC], no. 48843/99, §§ 108-15, ECHR 2003 ‑ XII; McKerr v. the United Kingdom, no. 28883/95, ECHR 2001 ‑ III; and Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, ECHR 2002 ‑ II). The Army Prosecuting Authority was staffed by legally qualified officers. It was wholly independent from the military chain of command in relation to its prosecuting function. Its independence had been recognised by the Court in Cooper (cited above). 155. The Government pointed out that an investigation into the fourth applicant ’ s brother ’ s death was commenced by the Special Investigation Branch on 29 August 2003, five days after the shooting on 14 August. The Special Investigation Branch recovered fragments of bullets, empty bullet cases and the vehicle, and took digital photographs of the scene. They interviewed the doctors who treated the deceased and took statements. Nine military witnesses involved in the incident were interviewed and had statements taken and four further witnesses were interviewed but had no evidence to offer. The investigation was discontinued on 17 September 2003 after the Brigade Commander expressed the view that the shooting fell within the rules of engagement and was lawful. However, the decision to discontinue was taken by a Special Investigation Branch senior investigating officer, who was independent of the military chain of command. The investigation was reopened on 7 June 2004 and completed on 3 December 2004, despite the difficult security conditions in Iraq at that time. The case was then referred to the Army Prosecuting Authority, which decided not to bring criminal charges as there was no realistic prospect of proving that the soldier who shot the fourth applicant ’ s brother had not been acting in self ‑ defence. The Attorney General was notified and he decided not to exercise his jurisdiction to order a prosecution. In the Government ’ s submission, the investigation was effective, in that it identified the person responsible for the death and established that the laws governing the use of force had been followed. The investigation was reasonably prompt, in particular when regard was had to the extreme difficulty of investigating in the extraterritorial context. If the halting of the initial investigation gave rise to any lack of independence, this was cured by the subsequent investigation and the involvement of the Army Prosecuting Authority and the Attorney General (see Gül v. Turkey, no. 22676/93, §§ 9 2-95, 14 December 2000; see also McCann and Others v. the United Kingdom, 27 September 1995, §§ 157 and 162- 64, Series A no. 324). 156. The Government submitted that there was no evidence, in the fifth applicant ’ s case, that the military chain of command interfered with the Special Investigation Branch investigation so as to compromise its independence. On the contrary, after receiving the investigation report the military chain of command referred the case to the Army Prosecuting Authority who in turn referred it for independent criminal trial. There was no undue delay in the investigation, in particular having regard to the difficulties faced by United Kingdom investigators investigating an incident which took place in Iraq eight days after the cessation of major combat operations. The fifth applicant was fully and sufficiently involved in the investigation. His participation culminated in the United Kingdom authorities flying him to England so that he could attend the court martial and give evidence. In addition to the Special Investigation Branch investigation and the criminal proceedings against the four soldiers, the fifth applicant brought civil proceedings in the United Kingdom domestic courts, claiming damages for battery and assault, negligence and misfeasance in public office. In those proceedings, he gave an account of his son ’ s death and the investigation which followed it. The proceedings were settled when the Ministry of Defence admitted liability and agreed to pay GBP 115,000 by way of compensation. Moreover, on 20 February 2009 Major General Cubitt wrote to the fifth applicant and formally apologised on behalf of the British army for its role in the death of his son. In these circumstances, the fifth applicant could no longer claim to be a victim of a violation of the Convention within the meaning of Article 34. Further, or in the alternative, it was no longer justified to continue the examination of the application (Article 37 § 1 (c) of the Convention). 157. The Government further emphasised that the sixth applicant had expressly confirmed that he did not claim before the Court that the Government had violated his Convention rights. This reflected the fact that, in relation to his son ’ s death, there had been ( a ) a full investigation by the Special Investigation Branch, leading to the bringing of criminal charges against six soldiers, one of whom was convicted; ( b ) civil proceedings brought by the applicant, which were settled when the Government admitted liability for the mistreatment and death of the applicant ’ s son and paid damages of GBP 575,000; ( c ) a formal public acknowledgement by the Government of the breach of the applicant ’ s son ’ s rights under Articles 2 and 3; ( d ) judicial review proceedings, in which the applicant complained of a breach of his procedural rights under Articles 2 and 3 and in which it was agreed by the parties and ordered by the House of Lords that the question whether there had been a breach of the procedural obligation should be remitted to the Divisional Court; and ( e ) a public inquiry, which was ongoing. In these circumstances, the applicant could no longer claim to be a victim for the purposes of Article 34 of the Convention. ( ii ) The applicants 158. The applicants emphasised that the Court ’ s case-law regarding south-eastern Turkey demonstrated that the procedural duty under Article 2 was not modified by reference to security problems in a conflict zone. The same principle had to apply in relation to any attempt by the Government to rely on either the security situation or the lack of infrastructure and facilities in Iraq. The United Kingdom was aware, or should have been aware, prior to the invasion and during the subsequent occupation, of the difficulties it would encounter. Its shortcomings in making provision for those difficulties could not exonerate it from the failure to comply with the investigative duty. 159. They submitted that the United Kingdom had failed in its procedural duty as regards the first, second, third, fourth and fifth applicants. The Royal Military Police was an element of the British army and was not, in either institutional or practical terms, independent from the military chain of command. The army units exercised control over it in matters relating to safety and logistical support while in theatre. Its involvement in incidents was wholly dependent on a request from the military unit in question, as was illustrated by the fourth applicant ’ s case, where the Special Investigation Branch response was stood down upon the instruction of the Commanding Officer. The Royal Military Police appeared to have been wholly dependent on the military chain of command for information about incidents. If it produced a report, this was given to the military chain of command, which decided whether to forward it to the Army Prosecuting Authority. The inadequacies within the Royal Military Police, regarding both lack of resources and independence, were noted by the Court of Appeal and by the Aitken Report. 160. The applicants pointed out that the Special Investigation Branch investigation into the fourth applicant ’ s case had been discontinued at the request of the military chain of command. The further investigatory phase, reopened as a result of litigation in the domestic courts, was similarly deficient, given the lack of independence of the Special Investigation Branch and the extreme delay in interviewing the person responsible for firing the shots and securing other key evidence. In the fifth applicant ’ s case, the investigation was initiated at the repeated urging of the family, after considerable obstruction and delay on the part of the British authorities. The investigators were not independent from the military chain of command and the victim ’ s family were not sufficiently involved. The applicants contended that the Government ’ s objection that the fifth applicant lacked victim status should be rejected. The court-martial proceedings and the compensation he had received in settlement of the civil proceedings were inadequate to satisfy the procedural requirement under Article 2. In contrast, the sixth applicant did not claim still to be a victim of the violation of his procedural rights under Articles 2 and 3. ( b ) The Court ’ s assessment ( i ) General principles 161. The Court is conscious that the deaths in the present case occurred in Basra City in south -east Iraq in the aftermath of the invasion, during a period when crime and violence were endemic. Although major combat operations had ceased on 1 May 2003, the Coalition Forces in south -east Iraq, including British soldiers and military police, were the target of over a thousand violent attacks in the subsequent thirteen months. In tandem with the security problems, there were serious breakdowns in the civilian infrastructure, including the law enforcement and criminal justice systems (see paragraphs 22-23 above; see also the findings of the Court of Appeal at paragraph 80 above ). 162. While remaining fully aware of this context, the Court ’ s approach must be guided by the knowledge that the object and purpose of the Convention as an instrument for the protection of individual human beings requires that its provisions be interpreted and applied so as to make its safeguards practical and effective. Article 2, which protects the right to life and sets out the circumstances when deprivation of life may be justified, ranks as one of the most fundamental provisions of the Convention. No derogation from it is permitted under Article 15, “except in respect of deaths resulting from lawful acts of war”. Article 2 covers both intentional killing and also the situations in which it is permitted to use force which may result, as an unintended outcome, in the deprivation of life. Any use of force must be no more than “absolutely necessary” for the achievement of one or more of the purposes set out in sub-paragraphs (a) to (c) ( see McCann and Others, cited above, §§ 146 ‑ 48 ). 163. The general legal prohibition of arbitrary killing by agents of the State would be ineffective in practice if there existed no procedure for reviewing the lawfulness of the use of lethal force by State authorities. The obligation to protect the right to life under this provision, read in conjunction with the State ’ s general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in [the] Convention”, requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force by, inter alios, agents of the State ( see McCann and Others, cited above, § 161). The essential purpose of such an investigation is to secure the effective implementation of the domestic laws safeguarding the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility ( see Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 110, ECHR 2005-VII). However, the investigation should also be broad enough to permit the investigating authorities to take into consideration not only the actions of the State agents who directly used lethal force but also all the surrounding circumstances, including such matters as the planning and control of the operations in question, where this is necessary in order to determine whether the State complied with its obligation under Article 2 to protect life (see, by implication, McCann and Others, cited above, §§ 150 and 162; Hugh Jordan v. the United Kingdom, no. 24746/94, § 1 28, 4 May 2001; McKerr, cited above, §§ 143 and 151; Shanaghan v. the United Kingdom, no. 37715/97, § § 100-25, 4 May 2001; Finucane v. the United Kingdom, no. 29178/95, §§ 77-78, ECHR 2003 ‑ VIII; Nachova and Others, cited above, §§ 114-15; and, mutatis mutandis, Tzekov v. Bulgaria, no. 45500/99, § 71, 23 February 2006). 164. The Court has held that the procedural obligation under Article 2 continues to apply in difficult security conditions, including in a context of armed conflict (see, among other examples, Güleç v. Turkey, 27 July 1998, § 81, Reports 1998 ‑ IV; Ergi v. Turkey, 28 July 1998, §§ 79 and 82, Reports 1998 ‑ IV; Ahmet Özkan and Others v. Turkey, no. 21689/93, §§ 8 5-90, 309-20 and 326-30, 6 April 2004; Isayeva v. Russia, no. 57950/00, §§ 180 and 210, 24 February 2005; and Kanlibaş v. Turkey, no. 32444/96, §§ 39-51, 8 December 2005). It is clear that where the death to be investigated under Article 2 occurs in circumstances of generalised violence, armed conflict or insurgency, obstacles may be placed in the way of investigators and, as the United Nations Special Rapporteur has also observed (see paragraph 93 above), concrete constraints may compel the use of less effective measures of investigation or may cause an investigation to be delayed (see, for example, Bazorkina v. Russia, no. 69481/01, § 121, 27 July 2006). Nonetheless, the obligation under Article 2 to safeguard life entails that, even in difficult security conditions, all reasonable steps must be taken to ensure that an effective, independent investigation is conducted into alleged breaches of the right to life (see, among many other examples, Kaya v. Turkey, 19 February 1998, §§ 86 ‑ 92, Reports 1998 ‑ I; Ergi, cited above, §§ 82-85; Tanrıkulu v. Turkey [GC], no. 23763/94, §§ 101- 10, ECHR 1999 ‑ IV; Khashiyev and Akayeva v. Russia, nos. 57942/00 and 57945/00, §§ 156-66, 24 February 2005; Isayeva, cited above, §§ 215 ‑ 24; and Musayev and Others v. Russia, nos. 57941/00, 58699/00 and 60403/0 0, §§ 158-65, 26 July 2007). 165. What form of investigation will achieve the purposes of Article 2 may vary depending on the circumstances. However, whatever mode is employed, the authorities must act of their own motion once the matter has come to their attention. They cannot leave it to the initiative of the next of kin either to lodge a formal complaint or to take responsibility for the conduct of any investigative procedures ( see Ahmet Özkan and Others, cited above, § 310, and Isayeva, cited above, § 210). Civil proceedings, which are undertaken on the initiative of the next of kin, not the authorities, and which do not involve the identification or punishment of any alleged perpetrator, cannot be taken into account in the assessment of the State ’ s compliance with its procedural obligations under Article 2 of the Convention ( see, for example, Hugh Jordan, cited above, § 141). Moreover, the procedural obligation of the State under Article 2 cannot be satisfied merely by awarding damages (see McKerr, cited above, § 121, and Bazorkina, cited above, § 117 ). 166. As stated above, the investigation must be effective in the sense that it is capable of leading to a determination of whether the force used was or was not justified in the circumstances and to the identification and punishment of those responsible. This is not an obligation of result, but of means. The authorities must take the reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony, forensic evidence and, where appropriate, an autopsy which provides a complete and accurate record of injury and an objective analysis of clinical findings, including the cause of death. Any deficiency in the investigation which undermines its ability to establish the cause of death or the person or persons responsible will risk falling foul of this standard ( see Ahmet Özkan and Others, cited above, § 312, and Isayeva, cited above, § 212 and the cases cited therein). 167. For an investigation into alleged unlawful killing by State agents to be effective, it is necessary for the persons responsible for and carrying out the investigation to be independent from those implicated in the events. This means not only a lack of hierarchical or institutional connection but also a practical independence (see, for example, Shanaghan, cited above, § 104). A requirement of promptness and reasonable expedition is implicit in this context. While there may be obstacles or difficulties which prevent progress in an investigation in a particular situation, a prompt response by the authorities in investigating a use of lethal force may generally be regarded as essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts. For the same reasons, there must be a sufficient element of public scrutiny of the investigation or its results to secure accountability in practice as well as in theory. The degree of public scrutiny required may well vary from case to case. In all cases, however, the victim ’ s next of kin must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests ( see Ahmet Özkan and Others, cited above, §§ 311 ‑ 14, and Isayeva, cited above, §§ 211-14 and the cases cited therein). ( ii ) Application of these principles to the facts of the case 168. The Court takes as its starting - point the practical problems caused to the investigating authorities by the fact that the United Kingdom was an Occupying Power in a foreign and hostile region in the immediate aftermath of invasion and war. These practical problems included the breakdown in the civil infrastructure, leading, inter alia, to shortages of local pathologists and facilities for autopsies; the scope for linguistic and cultural misunderstandings between the occupiers and the local population; and the danger inherent in any activity in Iraq at that time. As stated above, the Court considers that in circumstances such as these the procedural duty under Article 2 must be applied realistically, to take account of specific problems faced by investigators. 169. Nonetheless, the fact that the United Kingdom was in occupation also entailed that, if any investigation into acts allegedly committed by British soldiers was to be effective, it was particularly important that the investigating authority was, and was seen to be, operationally independent of the military chain of command. 170. It was not in issue in the first, second and fourth applicants ’ cases that their relatives were shot by British soldiers, whose identities were known. The question for investigation was whether in each case the soldier fired in conformity with the rules of engagement. In respect of the third applicant, Article 2 required an investigation to determine the circumstances of the shooting, including whether appropriate steps were taken to safeguard civilians in the vicinity. As regards the fifth applicant ’ s son, although the Court has not been provided with the documents relating to the court martial, it appears to have been accepted that he died of drowning. It needed to be determined whether British soldiers had, as alleged, beaten the boy and forced him into the water. In each case, eyewitness testimony was crucial. It was therefore essential that, as quickly after the event as possible, the military witnesses, and in particular the alleged perpetrators, should have been questioned by an expert and fully independent investigator. Similarly, every effort should have been taken to identify Iraqi eyewitnesses and to persuade them that they would not place themselves at risk by coming forward and giving information and that their evidence would be treated seriously and acted upon without delay. 171. It is clear that the investigations into the shooting of the first, second and third applicants ’ relatives fell short of the requirements of Article 2, since the investigation process remained entirely within the military chain of command and was limited to taking statements from the soldiers involved. Moreover, the Government accept this conclusion. 172. As regards the other applicants, although there was an investigation by the Special Investigation Branch into the death of the fourth applicant ’ s brother and the fifth applicant ’ s son, the Court does not consider that this was sufficient to comply with the requirements of Article 2. It is true that the Royal Military Police, including its Special Investigation Branch, had a separate chain of command from the soldiers on combat duty whom it was required to investigate. However, as the domestic courts observed (see paragraphs 77 and 82 above), the Special Investigation Branch was not, during the relevant period, operationally independent from the military chain of command. It was generally for the Commanding Officer of the unit involved in the incident to decide whether the Special Investigation Branch should be called in. If the Special Investigation Branch decided on its own initiative to commence an investigation, this investigation could be closed at the request of the military chain of command, as demonstrated in the fourth applicant ’ s case. On conclusion of a Special Investigation Branch investigation, the report was sent to the Commanding Officer, who was responsible for deciding whether or not the case should be referred to the Army Prosecuting Authority. The Court considers, in agreement with Brooke LJ (see paragraph 8 2 above), that the fact that the Special Investigation Branch was not “free to decide for itself when to start and cease an investigation” and did not report “in the first instance to the [Army Prosecuting Authority]” rather than to the military chain of command, meant that it could not be seen as sufficiently independent from the soldiers implicated in the events to satisfy the requirements of Article 2. 173. It follows that the initial investigation into the shooting of the fourth applicant ’ s brother was flawed by the lack of independence of the Special Investigation Branch officers. During the initial phase of the investigation, material was collected from the scene of the shooting and statements were taken from the soldiers present. However, Lance Corporal S. , the soldier who shot the applicant ’ s brother, was not questioned by Special Investigation Branch investigators during this initial phase. It appears that the Special Investigation Branch interviewed four Iraqi witnesses, who may have included the neighbours the applicant believes to have witnessed the shooting, but did not take statements from them. In any event, as a result of the lack of independence, the investigation was terminated while still incomplete. It was subsequently reopened, some nine months later, and it would appear that forensic tests were carried out at that stage on the material collected from the scene, including the bullet fragments and the vehicle. The Special Investigation Branch report was sent to the Commanding Officer, who decided to refer the case to the Army Prosecuting Authority. The prosecutors took depositions from the soldiers who witnessed the incident and decided, having taken further independent legal advice, that there was no evidence that Lance Corporal S. had not acted in legitimate self-defence. As previously stated, eyewitness testimony was central in this case, since the cause of the death was not in dispute. The Court considers that the long period of time that was allowed to elapse before Lance Corporal S. was questioned about the incident, combined with the delay in having a fully independent investigator interview the other military witnesses, entailed a high risk that the evidence was contaminated and unreliable by the time the Army Prosecuting Authority came to consider it. Moreover, it does not appear that any fully independent investigator took evidence from the Iraqi neighbours who the applicant claims witnessed the shooting. 174. While there is no evidence that the military chain of command attempted to intervene in the investigation into the fifth applicant ’ s son ’ s death, the Court considers that the Special Investigation Branch investigators lacked independence for the reasons set out above. In addition, no explanation has been provided by the Government in respect of the long delay between the death and the court martial. It appears that the delay seriously undermined the effectiveness of the investigation, not least because some of the soldiers accused of involvement in the incident were by then untraceable (see, in this respect, the comments in the Aitken Report, paragraph 6 1 above). Moreover, the Court considers that the narrow focus of the criminal proceedings against the accused soldiers was inadequate to satisfy the requirements of Article 2 in the particular circumstances of this case. There appears to be at least prima facie evidence that the applicant ’ s son, a minor, was taken into the custody of British soldiers who were assisting the Iraqi police to take measures to combat looting and that, as a result of his mistreatment by the soldiers, he drowned. In these circumstances, the Court considers that Article 2 required an independent examination, accessible to the victim ’ s family and to the public, of the broader issues of State responsibility for the death, including the instructions, training and supervision given to soldiers undertaking tasks such as this in the aftermath of the invasion. 175. In the light of the foregoing, the Court does not consider that the procedural duty under Article 2 has been satisfied in respect of the fifth applicant. Although he has received a substantial sum in settlement of his civil claim, together with an admission of liability on behalf of the army, there has never been a full and independent investigation into the circumstances of his son ’ s death (see paragraph 165 above). It follows that the fifth applicant can still claim to be a victim within the meaning of Article 34 and that the Government ’ s preliminary objection regarding his lack of victim status must be rejected. 176. In contrast, the Court notes that a full, public inquiry is nearing completion into the circumstances of the sixth applicant ’ s son ’ s death. In the light of this inquiry, the Court notes that the sixth applicant accepts that he is no longer a victim of any breach of the procedural obligation under Article 2. The Court therefore accepts the Government ’ s objection in respect of the sixth applicant. 177. In conclusion, the Court finds a violation of the procedural duty under Article 2 of the Convention in respect of the first, second, third, fourth and fifth applicants. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 178. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 179. The first, second, third, fourth and fifth applicants asked the Court to order the Government to carry out an Article 2-compliant investigation into their relatives ’ deaths. They also claimed 15,000 pounds sterling (GBP) each in compensation for the distress they had suffered because of the United Kingdom ’ s failure to conduct a Convention-compliant investigation into the deaths. 180. The Government pointed out that the Court had repeatedly and expressly refused to direct the State to carry out a fresh investigation in cases in which it had found a breach of the procedural duty under Article 2 (see, for example, Varnava and Others v. Turkey [GC], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, § 222, ECHR 2009; Ülkü Ekinci v. Turkey, no. 27602/95, § 179, 16 July 2002; and Finucane, cited above, § 89 ). They further submitted that a finding of a violation would be sufficient just satisfaction in the circumstances. In the alternative, if the Court decided to make an award, the Government noted that the sum claimed by the applicants was higher than generally awarded. They did not, however, propose a sum, leaving it to the Court to decide on an equitable basis. 181. As regards the applicants ’ request concerning the provision of an effective investigation, the Court reiterates the general principle that the respondent State remains free to choose the means by which it will discharge its legal obligation under Article 46 of the Convention, provided that such means are compatible with the conclusions set out in the Court ’ s judgment. Consequently, it considers that in these applications it falls to the Committee of Ministers acting under Article 46 of the Convention to address the issues as to what may be required in practical terms by way of compliance (see Varnava and Others, cited above, § 222, and the cases cited therein ). 182. As regards the claim for monetary compensation, the Court recalls that it is not its role under Article 41 to function akin to a domestic tort mechanism court in apportioning fault and compensatory damages between civil parties. Its guiding principle is equity, which above all involves flexibility and an objective consideration of what is just, fair and reasonable in all the circumstances of the case, including not only the position of the applicant but the overall context in which the breach occurred. Its non ‑ pecuniary awards serve to give recognition to the fact that moral damage occurred as a result of a breach of a fundamental human right and reflect in the broadest of terms the severity of the damage (see Varnava and Others, cited above, § 224, and the cases cited therein). In the light of all the circumstances of the present case, the Court considers that, to compensate each of the first five applicants for the distress caused by the lack of a fully independent investigation into the deaths of their relatives, it would be just and equitable to award the full amount claimed, which, when converted into euros, comes to approximately 17,000 euros (EUR) each. B. Costs and expenses 183. The applicants, emphasising the complexity and importance of the case, claimed for over 580 hours ’ legal work by their solicitors and four counsel in respect of the proceedings before the Court, at a total cost of GBP 119,928. 184. The Government acknowledged that the issues were complex, but nonetheless submitted that the claim was excessive, given that the applicants ’ legal advisers were familiar with all aspects of the claim since they had acted for the applicants in the domestic legal proceedings, which had been publicly funded. Furthermore, the hourly rates claimed by the applicants ’ counsel, ranging between GBP 500 and GBP 235, and the hourly rates claimed by the applicants ’ solicitors, ranging between GBP 180 and GBP 130, were unreasonably high. Nor had it been necessary to engage two Queen ’ s Counsel and two junior counsel. 185. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 50,000 for the proceedings before the Court. C. Default interest 186. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The principal issue in this case was whether the European Convention on Human Rights applied in respect of the killing of Iraqi civilians in Iraq by British soldiers between May and November 2003. The Court had to decide whether the applicants’ relatives fell within the jurisdiction of the United Kingdom within the meaning of Article 1 (obligation to respect human rights) of the Convention. The Court referred in particular to its previous case-law in which it held that a State is normally required to apply the Convention only within its own territory. An extra-territorial act would fall within the State’s jurisdiction under the Convention only in exceptional circumstances. One such exception established in the Court’s case-law was when a State bound by the Convention exercised public powers on the territory of another State. In the present case, following the removal from power of the Ba’ath regime and until the accession of the Iraqi Interim Government, the United Kingdom (together with the United States) assumed in Iraq the exercise of some of the public powers normally to be exercised by a sovereign government. In particular, the United Kingdom assumed authority and responsibility for the maintenance of security in South East Iraq. In those exceptional circumstances, a jurisdictional link existed between the United Kingdom and individuals killed in the course of security operations carried out by British soldiers during the period May 2003 to June 2004. Since the applicants’ relatives were killed in the course of United Kingdom security operations during that period, the United Kingdom was required to carry out an investigation into their deaths. |
578 | Expulsion or extradition cases | THE LAW I. REQUEST TO STRIKE OUT THE APPLICATION 28. The applicant complained that his return to Libya would entail a violation of Article 3 of the Convention, which reads: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. The parties ’ submissions 29. The Government requested the Court to strike the case out of its list of cases, in accordance with Article 37 § 1 of the Convention, on the ground that following the Migration Board ’ s decision of 17 December 2014 the applicant no longer faced a risk of being expelled to Libya. Consequently, in their view, the matter had been resolved at the domestic level and they did not consider that there were any special circumstances regarding respect for human rights which required the continued examination of the application before the Court. In the alternative, the Government contended that the application should be declared inadmissible as the applicant could no longer claim to be a victim within the meaning of Article 34 of the Convention. 30. The applicant stated that he wished to maintain the application and asked the Court to proceed to consider the application on the merits. In his view, the “matter” before the Court had not been resolved, since it encompassed not only the question whether his potential future removal to Libya would violate Article 3. It also concerned the separate question whether the previous decisions by the Swedish authorities had been in breach of Article 3 since, at the time when they had taken their decisions, they knew or ought to have known that his removal to Libya would expose him to a real risk of inhuman or degrading treatment. Moreover, he considered that the domestic authorities ’ decisions were so flawed as to amount to a procedural violation of Article 3. The “matter” before the Grand Chamber now also included the correctness of the Chamber ’ s reasoning under Article 3. Furthermore, according to the applicant, respect for human rights required that the Grand Chamber continue the examination of the case, since it raised serious issues of fundamental importance relating to homosexuals ’ rights and how to assess those rights in asylum cases all over Europe. Lastly, referring to his arguments above, he considered that he was still a victim since the Swedish authorities had at no point acknowledged a violation of his rights under the Convention. While he was grateful for the permanent residence permit, it did not offer full redress, considering the worry, stress and uncertainty caused to him by the domestic authorities ’ initial decisions. B. The Court ’ s assessment 31. Article 37 § 1 of the Convention provides: “1. The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that (a) the applicant does not intend to pursue his application; or (b) the matter has been resolved; or (c) for any other reason established by the Court, it is no longer justified to continue the examination of the application. However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.” 32. The Court observes at the outset that, according to its established case-law in cases concerning the expulsion of an applicant from a respondent State, once the applicant no longer risks being expelled from that State, it considers the case to have been resolved and strikes it out of its list of cases, whether or not the applicant agrees (see, among other authorities, Paez v. Sweden, 30 October 1997, Reports of Judgments and Decisions 1997 ‑ VII; Sarwari v. Austria ( dec. ), no. 21662/10, 3 November 2011; M.A. v. Sweden ( dec. ), no. 28361/12, 19 November 2013; Isman v. Switzerland ( dec. ), no. 23604/11, 21 January 2014; O.G.O. v. the United Kingdom ( dec. ), no. 13950/12, 18 February 2014; and I.A. v. the Netherlands ( dec. ), no. 76660/12, 27 May 2014). 33. The reason for this is that the Court has consistently approached the issue as one of a potential violation of the Convention, being of the view that the threat of a violation is removed by virtue of the decision granting the applicant the right of residence in the respondent State concerned (see Paez, cited above, § 29). Following this approach, it has previously found that Article 3 would not be violated since the applicant no longer faced a real and imminent risk of being expelled (see, for instance, A.G. v. Sweden ( dec. ), no. 22107/08, 6 December 201 1, and H v. Norway ( dec. ) no. 51666/13, 17 February 2015 ). 34. As regards the present case, the Court notes that there has been no friendly settlement or agreed arrangement. The granting of a permanent residence permit to the applicant, which effectively repealed the expulsion order, was a measure taken by the Migration Board of its own motion on 17 December 2014, essentially on account of the deterioration in the security situation in Libya since the summer of 2014, as set out in the Migration Board ’ s Director General ’ s Legal Comment on the situation in Libya dated 4 November 2014 (see paragraphs 2 4 -2 5 above). It is further to be observed that, in so far as his application was declared admissible, the applicant ’ s initial complaint under the Convention was that he feared that his expulsion to Libya would expose him to ill-treatment contrary to Article 3 of the Convention. That threat of a violation was removed by the Migration Board ’ s decision of 17 December 2014 repealing the expulsion order – the enforcement of which had been stayed pending the proceedings – and granting him permanent residence in Sweden. 35. Therefore, in line with its case-law as set out above, the Court finds that the matter has been resolved within the meaning of Article 37 § 1 (b) of the Convention. 36. Contrary to what the applicant suggests, in examining this question the Court does not need to enquire retrospectively into whether a real risk engaging the respondent State ’ s responsibility under Article 3 of the Convention existed when the Swedish immigration authorities refused his asylum requests or when the Chamber adopted its judgment. These are historical facts but they do not shed light on the applicant ’ s current situation, in which the impugned risk has been removed; this latter circumstance is decisive for the Court ’ s finding that the matter has been resolved (see, mutatis mutandis, Saadi v. Italy [GC], no. 37201/06, § 133, ECHR 2008 ). 37. As to the applicant ’ s submission that there are special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of the case (Article 37 § 1 in fine ), the Court notes that in its decision of 17 December 2014 the Migration Board took the applicant ’ s sexual orientation into account. It found that he was in need of protection in Sweden because the deterioration in the security situation in his home country would put him at risk of being persecuted since he lived openly as a homosexual and could be expected to continue doing so on his return. Against this background, the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of the case. 38. Accordingly, it is appropriate to strike the application out of the list of cases. II. RULE 39 OF THE RULES OF COURT 39. In view of the above, the application of Rule 39 of the Rules of Court is discontinued. | In this case the Court decided to indicate to the Swedish Government, under Rule 39 of its Rules of Court, not to expel the applicant to Libya until further notice. In December 2014 the applicant was granted a residence permit in Sweden. The Court considered that the potential violation of Article 3 of the Convention had now been removed and that the case had thus been resolved at national level. It therefore decided to strike the application out of the Court’s list of cases. |
1,054 | Work during detention | II. RELEVANT DOMESTIC LAW A. Minor Hooliganism 10. Decree No. 904 of 28 December 1963 on Combating Minor Hooliganism was passed by the then existing Presidium of the National Assembly under a simplified legislative procedure, as possible under Article 35 § 5 and Article 36 of the then in force 1947 Constitution. It was published in the State Gazette on 31 December 1963, as required under section 37 (1) of the Normative Acts Act 1973, as worded at that time. The Supreme Administrative Court has on a number of occasions said that the Decree has the same force as an Act of Parliament ( опр. № 9959 от 7 ноември 2003 г. по адм. д. № 9327/2003 г., ВАС, I о.; опр. № 10286 от 10 декември 2004 г. по адм. д. № 9761/2004 г., ВАС, петчленен с ‑ в; опр. № 14673 от 3 декември 2009 г. по адм. д. № 15200/2009 г., ВАС, I о.; опр. № 12764 от 1 ноември 2010 г. по адм. д. № 13284/2010 г., ВАС, I о. ). 11. Article 1 § 2 of the Decree defines minor hooliganism as an indecent act consisting of uttering swearwords, insults or other offensive words in a public place and in front of many people, in an offensive attitude towards other citizens or public officials, or in a quarrel, fight or suchlike that breach the peace but due to their lower degree of dangerousness do not amount to the criminal offence of hooliganism. Such acts, if perpetrated by persons older than sixteen, carry a penalty of up to fifteen days ’ detention in the premises of the Ministry of Internal Affairs or a fine (Article 1 § 1). 12. Under Article 8 § 2 of the Decree, the penalty of detention in the premises of the Ministry of Internal Affairs must be accompanied by work determined in accordance with the detainee ’ s health, age and abilities. That work is not remunerated. 13. Cases under the Decree fall under the jurisdiction of the district courts ( Articles 3 and 4). Until May 2011 Article 7 provided that the court ’ s decision was not subject to appeal. On 4 May 2011 ( реш. № 3 от 4 май 2011 г. по к. д. № 19 от 2010 г., обн., ДВ, бр. 38 от 17 май 2011 г.) the Constitutional Court declared that rule unconstitutional. As a result, in November 2011 Article 7 was amended and now provides, in paragraph 2, that the district court ’ s decision to impose an administrative penalty may be appealed on points of law before the regional court within twenty-four hours. The case must be listed for hearing before the regional court not more than three days after the district court ’ s decision ( paragraph 1, as amended), and the regional court must rule, by means of a final decision, on the day it receives the appeal ( paragraph 3, as amended). In the explanatory notes to the amendment bill the Government referred to, inter alia, the need to bring the Decree into line with the Convention and this Court ’ s case ‑ law. B. Remuneration of the work carried out by persons in custody convicted of criminal offences 14. Under section 25 of the Execution of Punishments Act 1969, persons serving a custodial sentence following their conviction of a criminal offence were entitled to receive at least thirty per cent of the remuneration due for their work. 15. Section 78(1) of the Execution of Punishments and Pre ‑ Trial Detention Act 2009, which superseded the 1969 Act in June 2009, provides that persons serving a custodial sentence following their conviction of a criminal offence are entitled to receive at least thirty per cent of the remuneration due for all work carried out by them except voluntary unpaid work and regular shifts to maintain order and hygiene. III. RELEVANT COUNCIL OF EUROPE MATERIALS 16. The European Prison Rules are recommendations of the Committee of Ministers to member States of the Council of Europe as to the minimum standards to be applied in prisons. States are encouraged to be guided by those rules in legislation and policies. 17. The 1987 European Prison Rules (Recommendation No. R (87) 3 – “the 1987 Rules”) were adopted on 12 February 1987. 18. Rule 76.1 provides that “[t]here shall be a system of equitable remuneration of the work of prisoners”. 19. The commentary in the Explanatory memorandum to the Rules says: “ This rule recognises the importance and value of an adequate and equitable payment system in the context of treatment regimes. No provision to encourage the development of wages systems towards levels that apply for similar work in the community has been made in the rule itself as that would have been premature at this stage. However, a great deal of progress has been made in that respect in a number of countries and that is to be encouraged. ... ” 20. On 11 January 2006 the Committee of Ministers adopted a new version of the European Prison Rules, Recommendation Rec(2006)2 (“the 2006 Rules”). It noted that the 1987 Rules “needed to be substantively revised and updated in order to reflect the developments which ha[d] occurred in penal policy, sentencing practice and the overall management of prisons in Europe ”. 21. Rule 26.10 provides that “[i]n all instances there shall be equitable remuneration of the work of prisoners ”. 22. The commentary on the 2006 Rules ( drawn up by the European Committee on Crime Problems) says that the level of remuneration of prisoners should be guided by the principle of mirroring conditions for workers on the outside, and that ideally all prisoners should be paid wages that are related to those in society as a whole. THE LAW I. ALLEGED VIOLATION OF ARTICLE 4 § 2 OF THE CONVENTION 23. The applicant complained that he had been required to perform compulsory labour without this falling within one of the exceptions laid down in Article 4 § 3 of the Convention. He therefore considered that he had been a victim of a breach of Article 4 § 2 of the Convention. 24. Article 4 §§ 2 and 3 of the Convention provide, in so far as relevant : “2. No one shall be required to perform forced or compulsory labour. 3. For the purpose of this article the term ‘ forced or compulsory labour ’ shall not include: (a) any work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 of [the] Convention ... ” 25. The Government submitted that the applicant had been required to work after having been convicted and sentenced by an independent and impartial court, in proceedings in which he had had the assistance of counsel. The work fell within the exception envisaged by Article 2 § 2 (c) of the International Labour Organisation ’ s Convention concerning Forced or Compulsory Labour (No. 29), and could not therefore be regarded as forced or compulsory labour. Moreover, it had not been inconsistent with the applicant ’ s health, age or skills, too onerous, or lasting an inordinate amount of time. The work had also been for the benefit of society. 26. The applicant submitted that the work that he had been required to carry out had been compulsory labour because it had been ordered by a court as part of his penalty, because he had been in detention and would have incurred sanctions if he had refused to work, and because the work had not been remunerated. That labour did not fall within the exception laid down in Article 4 § 3 (a) because the applicant ’ s detention had been in breach of Article 5 § § 1, 2, 4 and 5 of the Convention. The detention had been based on a Decree, not an Act of Parliament, in breach of the Article 5 § 1 requirement that it be “in accordance with the law”. The applicant had not been duly informed of the reasons for his detention, in breach of Article 5 § 2. He had not been able to appeal against the judicial decision ordering his detention, in breach of Article 5 § 4, and had not been able to seek compensation for his detention, in breach of Article 5 § 5. 27. The Court recently set out the general principles governing the interpretation of Article 4 §§ 2 and 3 of the Convention in paragraphs 116 ‑ 23 of its judgment in Stummer v. Austria ( [GC], no. 37452/02, ECHR 2011 ‑ ..., with further references ). They are equally applicable to the present case. 28. In the present case, the obligation for the applicant to work while in detention stemmed from the express terms of Article 8 § 2 of the 1963 Decree and the judicial decision against the applicant (see paragraphs 8 and 12 above). The work was to be carried out while the applicant was in custody and under the full control of the authorities. It can therefore be regarded as work for which the applicant had not offered himself voluntarily and which was exacted from him under the threat of imposition of a penalty, and therefore forced or compulsory labour within the meaning of Article 4 § 2 of the Convention. 29. Although the above point does not appear to be in dispute between the parties, they differ in their views as to whether that work was covered by the terms of Article 4 § 3 (a), which excludes “work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 of the Convention” from the definition of “forced or compulsory labour”. 30. Concerning the applicant ’ s assertion that his work did not fall within that exception because his detention had been in breach of Article 5 §§ 1, 2, 4 and 5 of the Convention, the Court observes that in his initial application the applicant raised complaints under all of those provisions; they were all rejected as manifestly ill ‑ founded in the partial decision in the present case (see Zhelyazkov v. Bulgaria (dec.), no. 11332/04, 12 May 2009). The Court sees not reason to depart from its findings in that decision. 31. In particular, the fact that the applicant ’ s detention was ordered by the Tsarevo District Court by reference to a Decree rather than an Act of Parliament does not make it unlawful within the meaning of Article 5 § 1 of the Convention. Under Bulgarian law, decrees adopted by the Presidium of the National Assembly under Article 35 § 5 and Article 36 of the 1947 Constitution are valid sources of law which have the same force as Acts of Parliament. This has been confirmed many times by the Supreme Administrative Court (see paragraph 10 above) and is implicit in the fact that the Constitutional Court accepted to hear a legal challenge to the 1963 Decree much as it would accept to hear a challenge to an Act of Parliament ( see paragraph 13 above ). The term “law” in Article 5 § 1 of the Convention must be understood in its substantive sense, not its formal one. The Court has accepted that detention may be based on a sufficiently established custom (see Drozd and Janousek v. France and Spain, 26 June 1992, § 107, Series A no. 240 ) or on case ‑ law (see Steel and Others v. the United Kingdom, 23 September 1998, § 55, Reports of Judgments and Decisions 1998 ‑ VII ). It has adopted the same stance to the term “law” as used in Articles 8 and 10 of the Convention (see Kruslin v. France, 24 April 1990, § 29, Series A no. 176 ‑ A, and The Sunday Times v. the United Kingdom (no. 1), 26 April 1979, § 47, Series A no. 30 ). It follows that the applicant ’ s detention was provided by Bulgarian law and was imposed in accordance with a procedure prescribed by law ( see, mutatis mutandis, Galstyan v. Armenia, no. 26986/03, § § 46 ‑ 49, 15 November 2007 ). There is no indication that it was otherwise incompatible with Article 5 § 1. 32. Nor was the applicant ’ s detention in breach of Article 5 § 2. He was informed of the reasons for his detention and must surely have become aware of them following the examination of his case by the Tsarevo District Court (see paragraphs 6 ‑ 8 above). 33. As for Article 5 § 4, the Court notes that failure to observe that provision does not automatically mean that there has been failure to observe Article 4 (see De Wilde, Ooms and Versyp v. Belgium, 18 November 1970, § 89, Series A no. 12, and Van Droogenbroeck v. Belgium, 24 June 1982, § 59, Series A no. 50 ). In any event, there is no appearance of a breach of Article 5 § 4, since judicial control of the detention during which the applicant was required to work was incorporated in the Tsarevo District Court ’ s decision (see De Wilde, Ooms and Versyp, cited above, § 76). 34. The same goes for Article 5 § 5. First, there is no basis in the Court ’ s case ‑ law to hold that a breach of that provision automatically causes work required of a detainee to fall outside the scope of Article 4 § 3 (a). Secondly, there is no appearance of a breach of Article 5 § 5 because it applies only if the Court or a domestic authority has found a breach of one of the preceding paragraphs of Article 5, which is not the case. 35. It follows that, contrary to the applicant ’ s assertion, the work that he was required to perform was done in the course of detention imposed according to the provisions of Article 5. It remains to be established whether it was otherwise compatible with the requirements of Article 4. 36. It has not been argued by the applicant, and there is no evidence, that the work that he was required to carry out was too onerous or went beyond what is ordinary. The fact that that work was not remunerated did not in itself cause it to fall outside that definition. In its decision in Twenty ‑ one Detained Persons v. Germany ( nos. 3134/67, 3172/67, 3188 ‑ 3206/67, Commission decision of 6 April 1968, Collection 27, pp. 97 ‑ 116), the former Commission declared a complaint in that respect inadmissible, noting, inter alia, that Article 4 does not contain any provision concerning the remuneration of prisoners for their work, and observing that it had consistently rejected applications by prisoners claiming higher remuneration for their work. The Court is mindful that there have been subsequent developments in attitudes to that issue, reflected in particular in the 1987 and 2006 European Prison Rules, which call for the equitable remuneration of the work of prisoners – with the 2006 Rules adding “in all instances” – (see paragraphs 18 and 21 above). Those Rules, and the modification in their wording, reflect an evolving trend. However, the Court does not consider that as matters stood at the time when the applicant was ordered to carry out the work at issue in the present case – approximately two years before the adoption of the 2006 Rules – it could be maintained that there existed an unconditional obligation under Article 4 of the Convention to remunerate the work of all detainees in all circumstances (see, mutatis mutandis, Stummer, cited above, § 132 ). The Court additionally notes that the applicant ’ s detention was effected under special rules designed to deal in a speedy way with minor public order offences, and that the period during which the applicant was detained and required to work without remuneration could not by law exceed, and did not in fact exceed, fifteen days (see paragraphs 9 and 12 above). This can hardly be compared to the situation of inmates who have worked many years in prison (see Stummer, cited above, § 130 in limine ). 37. The Court concludes that the obligatory work performed by the applicant during his fifteen days ’ detention was covered by the terms of Article 4 § 3 (a) of the Convention, and did not constitute forced or compulsory labour within the meaning of Article 4 § 2. 38. It follows that this complaint is manifestly ill ‑ founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 2 OF PROTOCOL No. 7 39. The applicant complained that he had been unable to appeal his conviction. He relied on Article 2 of Protocol No. 7, which provides as follows: “1. Everyone convicted of a criminal offence by a tribunal shall have the right to have his conviction or sentence reviewed by a higher tribunal. The exercise of this right, including the grounds on which it may be exercised, shall be governed by law. 2. This right may be subject to exceptions in regard to offences of a minor character, as prescribed by law, or in cases in which the person concerned was tried in the first instance by the highest tribunal or was convicted following an appeal against acquittal.” 40. The Government submitted that the offence of which the applicant had been convicted was of a minor character, because it was an administrative and not a criminal one. The Decree which defined the offence had been designed to attain speed and efficiency in tackling antisocial behaviour. 41. The applicant submitted that although the offence of which he had been convicted was administrative under Bulgarian law, it was criminal within the meaning of Article 2 of Protocol No. 7 in view of its being identical – save for the degree of dangerousness – with the criminal offence of hooliganism, and of the penalty of imprisonment that it carried. Under Bulgarian law as it stood at the time he could not appeal his conviction, whereas his case did not fall under any of the exceptions under paragraph 2 of the Article. In particular, the offence was not of a minor character because it was almost identical to the criminal offence of hooliganism and carried a penalty of imprisonment. 42. The Court considers that this complaint is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible. 43. In Kambourov v. Bulgaria (no. 2) ( no. 31001/02, § § 22 ‑ 27, 23 April 2009 ) and Stanchev v. Bulgaria ( no. 8682/02, § § 44 ‑ 49, 1 October 2009 ), the Court held that Article 2 of Protocol No. 7 applied to convictions under the 1963 Decree and that offences under the Decree were not of a minor character within the meaning of paragraph 2 of that Article. The Court went on to find that under Bulgarian law, as it stood at the material time, there was no possibility to challenge a conviction under the Decree, and concluded that there had been a breach of Article 2 of Protocol No. 7. 44. The Court sees no reason to hold otherwise in the present case, and finds that there has been a breach of that provision. 45. It should be noted in this connection that in May 2011 the Constitutional Court declared Article 7 of the 1963 Decree unconstitutional, and that in November 2011 that provision was amended with a view to rendering it compliant with the Convention and the Court ’ s case ‑ law (see paragraph 13 above). III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 46. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 47. The applicant claimed 20,000 euros (EUR) in respect of the non ‑ pecuniary damage flowing from the alleged breach of Article 4 § 2 of the Convention, and EUR 10,000 in respect of the non-pecuniary damage flowing from the alleged breach of Article 2 of Protocol No. 7. He submitted that the penalty of fifteen days ’ detention, which he had been unable to challenge, had caused him considerable frustration and had instilled in him a sense of powerlessness and injustice. The intensity of those feelings called for an award of considerable compensation. 48. The Government submitted that a finding of a violation would amount to sufficient just satisfaction, in particular because after the Court ’ s judgments in Kambourov (no. 2) and Stanchev (both cited above) the Bulgarian courts had started allowing appeals against convictions under the 1963 Decree. In their view, the applicant ’ s claims were exorbitant. 49. The Court observes that in the present case an award of just satisfaction can be based only on the breach of Article 2 of Protocol No. 7. That said, it considers that the applicant must have sustained some non ‑ pecuniary damage which cannot be made good solely by the finding of a violation (see Zaicevs v. Latvia, no. 65022/01, § 61, 31 July 2007 ). The fact that following the Court ’ s judgments in Kambourov (no. 2) and Stanchev (both cited above) it became possible to appeal against decisions under the 1963 Decree did not alter the situation of the applicant. Ruling in equity, as required under Article 41 of the Convention, the Court awards him EUR 1 ,000 under this head. To this amount is to be added any tax that may be chargeable. B. Costs and expenses 50. The applicant sought reimbursement of EUR 3,430 incurred in fees for forty ‑ nine hours of work by his lawyers on the proceedings before the Court, at EUR 70 per hour. He submitted a fee agreement, a time ‑ sheet and a declaration that he agreed that any costs and expenses awarded by the Court be paid directly to his lawyers. He also sought reimbursement of EUR 40 spent by his lawyers on postage and EUR 30 spent by them on office supplies. 51. The Government contested the number of hours spent by the applicant ’ s lawyers on the case. They suggested that in assessing the quantum of the award the Court should have regard to the usual fees paid to counsel for their appearance before the national courts. Lastly, they pointed out that the claim for other expenses was not supported by documents. 52. The Court observes that when considering a claim in respect of costs and expenses for the proceedings before it, it is not bound by domestic scales or standards ( see, as a recent authority, Mileva and Others v. Bulgaria, nos. 43449/02 and 21475/04, § 125, 25 November 2010). According to its case ‑ law, costs and expenses claimed under Article 41 of the Convention must have been actually and necessarily incurred and reasonable as to quantum. 53. Having regard to the materials in its possession, the above considerations, and the facts that the bulk of the application was declared inadmissible and that the issues relating to the complaint under Article 2 of Protocol No. 7 have already been resolved in two almost identical cases, the Court finds it reasonable to award the applicant EUR 8 00, plus any tax that may be chargeable to him, in respect of his legal costs. This sum is to be paid directly to the applicant ’ s legal representatives. 54. Concerning the claim for other expenses, the Court observes that the applicant has not submitted any supporting documents. In those circumstances, and bearing in mind the terms of Rule 60 §§ 2 and 3 of its Rules, the Court makes no award in respect of those expenses. C. Default interest 55. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court declared inadmissible, as being manifestly ill-founded, the applicant’s complaints under Article 4 (prohibition of forced labour) of the Convention. |
169 | Unborn child and right to life | II. RELEVANT DOMESTIC LAW AND PRACTICE A. The Criminal Code 23. The provision dealing with the unintentional taking of life at the material time and until 1 March 1994 was Article 319 of the Criminal Code, which read as follows: “Anyone who through his or her inadvertence, negligent act, inattention, negligent omission or breach of regulation unintentionally commits homicide or unintentionally causes death, shall be liable to imprisonment of between three months and two years and a fine of between 1,000 and 30,000 francs.” 24. Since 1 March 1994, the relevant provision has been Article 221-6 of the Criminal Code (as amended by Law no. 2000-647 of 10 July 2000 and Order no. 2000-916 of 19 September 2000), which is to be found in Section II (“Unintentional taking of life”) of Chapter I (“Offences against the life of the person”) of Part II (“Offences against the human person”) of Book II (“Serious crimes ( crimes ) and other major offences ( délits ) against the person”). Article 221-6 provides: “It shall be an offence of unintentional homicide punishable by three years ’ imprisonment and a fine of 45,000 euros to cause the death of another in the conditions and in accordance with the distinctions set out in Article 121-3 by inadvertence, negligent act, inattention, negligent omission or breach of a statutory or regulatory duty of safety or care. In the event of a manifestly deliberate breach of a special statutory or regulatory duty of safety or care, the maximum sentences shall be increased to five years ’ imprisonment and a fine of 75,000 euros. ” 25. Article 223-10 of the Criminal Code, which concerns the voluntary termination of pregnancy by a third party without the mother ’ s consent, is to be found in Section V under the heading “Unlawful termination of pregnancy” of Chapter III, entitled “ Endangering the person ”, in Part II of Book II. It reads as follows: “It shall be an offence punishable by five years ’ imprisonment and a fine of 75, 000 euros to terminate a pregnancy without the mother ’ s consent. ” 26. Section III entitled “Protection of the human embryo” of Chapter I (“Offences against biomedical ethics”) of Part I ( “ Public-health offences ” ) of Book V ( “ Other serious crimes ( crimes ) and other major offences ( délits ) ” ) prohibits various types of conduct on grounds of medical ethics ( Articles 511-15 to 511-25), including the conception of human embryos in vitro for research or experimental purposes ( Article 511-18). B. The Public Health Code 27. At the material time the limitation period for an action in damages in the administrative courts was four years, while the period in which a pregnancy could be voluntarily terminated lawfully was ten weeks following conception. 28. The provisions of the Public Health Code as worded since the Patients ’ Rights and Quality of the Health Service Act (Law no. 2002-303 of 4 March 2002 ) came into force read as follows : Article L. 1142-1 “ Save where they incur liability as a result of a defect in a health product, the medical practitioners mentioned in Part IV of this Code and all hospitals, clinics, departments and organisations in which preventive medicine, diagnosis or treatment is performed on individuals shall only be liable for damage caused by preventive medicine, diagnosis or treatment if they have been at fault. ... ” Article L. 1142-2 “ Private medical practitioners, the hospitals, clinics, health services and organisations mentioned in Article L. 1142-1 and any other legal entity other than the State that is engaged in preventive medicine, diagnosis or treatment and the producers and suppliers of and dealers in health products in the form of finished goods mentioned in Article L. 5311-1 with the exception of sub - paragraph 5 thereof, subject to the provisions of Article L. 1222-9, and sub - paragraphs 11, 14 and 15, that are used in connection with such activities shall be under a duty to take out insurance in respect of any third - party or administrative liability they may incur for damage sustained by third parties as a result of an assault against the person in the course of that activity taken as a whole. ... ” Article L. 1142-28 “The limitation period for actions against medical practitioners and public or private hospitals or clinics in respect of preventive medicine, diagnosis or treatment shall be ten years from the date the condition stabilises .” Article L. 2211-1 “As stated in Article 16 of the Civil Code as hereafter reproduced : ‘ ‘ The law secures the primacy of the person, prohibits any assault on human dignity and guarantees the respect of every human being from the beginning of its life. ’ ” Article L. 2211-2 “ The principle referred to in Article L. 2211-1 may only be derogated from in the event of necessity and in accordance with the conditions set out in this Part. It shall be the nation ’ s duty to educate society on this principle and its consequences, [ to provide ] information on life ’ s problems and on national and international demography, to inculcate a sense of responsibility, to receive children into society and to uphold family life. The State, aided by the local and regional authorities, shall perform these obligations and support initiatives that assist it to do so. ” Article L. 2212-1 “ A pregnant woman whose condition causes her distress may ask a doctor to terminate her pregnancy. The pregnancy may only be terminated within the first twelve weeks. ” Article L. 2213-1 “A pregnancy may be voluntarily terminated at any time if two doctors from a pluridisciplinary team certify, after the team has issued a consultative opinion, that either the woman ’ s continued pregnancy puts her health at serious risk or that it is highly likely that the unborn child is suffering from a particularly serious affection which is recognised as incurable at the time of diagnosis. ... ” C. The position taken by the Court of Cassation 29. The Court of Cassation has followed its decision in the instant case (see paragraph 22 above) on two occasions ( in its judgments of 29 June 2001 (full court ), Bulletin no. 16 5, and of 25 June 2002 ( Criminal Division ), Bulletin no. 144), despite submissions from the advocates - general concerned to the contrary. 1. Judgment of the full court of 29 June 2001 “As regards the two grounds of appeal of the public prosecutor at the Metz Court of Appeal and of Mrs X which have been joined together ... : On 29 July 1995 a vehicle being driven by Mr Z collided with a vehicle being driven by Mrs X, who was six months pregnant. She was injured and as a result of the impact lost the foetus she was carrying. In the impugned judgment (Metz Court of Appeal, 3 September 1998), Mr Z was convicted of unintentionally injuring Mrs X, aggravated by the fact that he was under the influence of drink. However, he was acquitted of the unintentional killing of the unborn child. The grounds of appeal against that decision are, firstly, that Article 221-6 of the Criminal Code, which makes it an offence to cause the death of another, does not exclude from its scope a viable unborn child and that, by holding that this provision applied only to a child whose heart was beating at birth and who was breathing, the Court of Appeal had added a condition that was not contained in the statute, and, secondly, unintentionally causing the death of an unborn child constituted the offence of unintentional homicide if the unborn child was viable at the material time, irrespective of whether or not it breathed when it was separated from the mother, with the result that there had been a violation of Articles 111-3, 111-4 and 221-6 of the Criminal Code and Article 593 of the Code of Criminal Procedure. The rule that offences and punishment must be defined by law, which requires that criminal statutes be construed strictly, pleads against extending the scope of Article 221-6 of the Criminal Code, which makes unintentional homicide an offence, to cover unborn children whose status in law is governed by special provisions concerning embryos and foetuses. ... ” 2. Judgment of the Criminal Division of 25 June 2002 “ ... Having regard to former Article 319, Article 221-6 and Article 111-4 of the Criminal Code : The rule that offences and punishment must be defined by law, which requires that criminal statutes be construed strictly, pleads against a charge of unintentional homicide lying in the case of a child that is not born alive. The impugned judgment established that Z, whose pregnancy under the supervision of X came to term on 10 November 1991, attended the clinic in order to give birth on 17 November. She was placed under observation at about 8.30 p.m. and drew the attention of the midwife, Y, to an anomaly in the child ’ s cardiac rhythm. Y refused to call the doctor. A further test carried out at 7 a.m. the following morning showed a like anomaly and subsequently that the heart had stopped beating altogether. At about 8 a.m., X pronounced the baby dead. In the evening he proceeded to extract the stillborn child by caesarean section. According to the autopsy report, the child did not present any malformation but had suffered from anoxia. In finding Y guilty of unintentional homicide and X, who was acquitted by the Criminal Court, liable for the civil consequences of that offence, the Court of Appeal held that the child ’ s death was a result of the negligent acts and omissions of both the doctor in failing to place the patient, who was beyond term, under closer observation and of the midwife in failing to notify an unequivocal anomaly noted when the child ’ s cardiac rhythm was recorded. After noting that the stillborn child did not present any organic lesion capable of explaining its death, the Court of Appeal stated: ‘ This child had reached term several days previously and, but for the fault that has been found, would have been capable of independent survival, with a human existence separate from its mother ’ s. ’ However, by so holding, the Court of Appeal misapplied the provisions referred to above and the aforementioned principles. It follows that this appeal on points of law is allowed. The case will not be remitted, as the facts are not capable of coming within the definition of any criminal offence. ... ” 30. The Criminal Division of the Court of Cassation has held that a court of appeal gave valid reasons for finding a defendant guilty of the unintentional homicide of a child who died an hour after its birth on the day of a road traffic accident in which its mother, who was eight months ’ pregnant, was seriously injured, when it held that, by failing to control his vehicle, the driver had caused the child ’ s death an hour after birth as a result of irreversible lesions to vital organs sustained at the moment of impact ( Court of Cassation, Criminal Division, 2 December 2003). 31. An article entitled “ Unintentional violence on pregnant women and the offence of unintentional homicide” ( Recueil Dalloz 2004, p. 449) notes that in twenty-eight out of a total of thirty-four articles commenting on the Criminal Division of the Court of Cassation ’ s judgment of 2 December 2003 ( see paragraph 30 above) the authors are critical of the Court of Cassation ’ s case-law (see paragraph 29 above ). The criticism includes : the laconic reasoning of the Court of Cassation ’ s judgments and incoherence of the protection afforded, as a person causing unintentional injury is liable to criminal prosecution while a person who unintentionally causes the death of the foetus goes unpunished; the fact that a child who has lived for a few minutes is recognised as having standing as a victim, whereas a child that dies in utero is ignored by the law; and the fact that freedom to procreate is less well protected than freedom to have an abortion. D. The Garraud amendment 32. On 27 November 2003 the National Assembly adopted on its second reading a bill to adapt the criminal justice system to changes in criminality. The bill included the Garraud amendment, so named after the member of parliament who introduced it, which created an offence of involuntary termination of pregnancy (ITP ). 33. The adoption of this amendment gave rise to fierce controversy and, after a week of consultations, the Minister of Justice, Mr Perben, declared on 5 December 2003 that the member ’ s proposal “caused more problems than it solved” and that he was in favour of abandoning it. On 23 January 2004 the Senate unanimously deleted the amendment. This was the second time the senators had rejected such a proposal, as they had already opposed it in April 2003 when examining the Reinforcement of Protection against Road Violence Act, passed on 12 June 2003. E. The laws on bioethics 34. On 11 December 2003 the National Assembly adopted on its second reading a bill on bioethics with a view to reforming the 1994 laws on the donation and use of parts and products of the human body, medically assisted procreation and prenatal diagnosis, as envisaged by the legislature at the time, in order to take into account subsequent scientific and medical progress and new issues with which society was confronted. In view of the speed with which technological advances are made, the bill reinforces the guarantees on the provision of information and on seeking and obtaining consent, prohibits certain practices that are technically feasible (reproductive cloning) and provides a framework for those with a proven medical interest (research on embryos in vitro ). It establishes a regulatory and supervisory body ( the Procreation, Embryology and Human Genetics Agency) whose functions also include acting as a watchdog and providing support and expert guidance in these spheres (http://www.assemblee-nationale .fr/dossiers/bioethique.asp). III. EUROPEAN LAW A. The Oviedo Convention on Human Rights and Biomedicine 35. The Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine, also known as the Convention on Human Rights and Biomedicine, which was opened for signature on 4 April 1997 in Oviedo, came into force on 1 December 1999. In this convention, the member States of the Council of Europe, the other States and the European Community signatories to it, “ ... Resolving to take such measures as are necessary to safeguard human dignity and the fundamental rights and freedoms of the individual with regard to the application of biology and medicine, ... agreed as follows: Chapter I – General provisions Article 1 – Purpose and object Parties to this Convention shall protect the dignity and identity of all human beings and guarantee everyone, without discrimination, respect for their integrity and other rights and fundamental freedoms with regard to the application of biology and medicine. Each Party shall take in its internal law the necessary measures to give effect to the provisions of this Convention. Article 2 – Primacy of the human being The interests and welfare of the human being shall prevail over the sole interest of society or science. ... Chapter V – Scientific research ... Article 18 – Research on embryos in vitro 1. Where the law allows research on embryos in vitro, it shall ensure adequate protection of the embryo. 2. The creation of human embryos for research purposes is prohibited. ... Chapter XI – Interpretation and follow-up of the Convention Article 29 – Interpretation of the Convention The European Court of Human Rights may give, without direct reference to any specific proceedings pending in a court, advisory opinions on legal questions concerning the interpretation of the present Convention at the request of: – the Government of a Party, after having informed the other Parties; – the Committee set up by Article 32, with membership restricted to the Representatives of the Parties to this Convention, by a decision adopted by a two-thirds majority of votes cast. ... ” 36. The commentary on Article 1 ( see paragraphs 16 to 19 of the explanatory report on the convention ) states : Article 1 – Purpose and object “ 16. This Article defines the Convention ’ s scope and purpose. 17. The aim of the Convention is to guarantee everyone ’ s rights and fundamental freedoms and, in particular, their integrity and to secure the dignity and identity of human beings in this sphere. 18. The Convention does not define the term ‘ everyone ’ (in French ‘ toute personne ’ ). These two terms are equivalent and found in the English and French versions of the European Convention on Human Rights, which however does not define them. In the absence of a unanimous agreement on the definition of these terms among member States of the Council of Europe, it was decided to allow domestic law to define them for the purposes of the application of the present Convention. 19. The Convention also uses the expression ‘ human being ’ to state the necessity to protect the dignity and identity of all human beings. It was acknowledged that it was a generally accepted principle that human dignity and the identity of the human being had to be respected as soon as life began. ... ” B. Additional Protocol to the Convention on Human Rights and Biomedicine, on the Prohibition of Cloning Human Beings ( 12 January 1998 ) 37. Article 1 of the Protocol provides : “ 1. Any intervention seeking to create a human being genetically identical to another human being, whether living or dead, is prohibited. 2. For the purpose of this Article, the term human being ‘ genetically identical ’ to another human being means a human being sharing with another the same nuclear gene set.” C. Additional Protocol to the Convention on Human Rights and Biomedicine, concerning Biomedical Research 38. The draft Protocol was approved by the Steering Committee on Bioethics on 20 June 2003. It was submitted for approval to the Committee of Ministers of the Council of Europe, which sought a consultative opinion from the Parliamentary Assembly. On 30 April 2004 the Assembly issued an opinion (no. 252 (2004)) in which it declared itself in favour of the draft Protocol. On 30 June 2004 the Committee of Ministers adopted the text. Article 1 – Object and purpose “ Parties to this Protocol shall protect the dignity and identity of all human beings and guarantee everyone, without discrimination, respect for their integrity and other rights and fundamental freedoms with regard to any research involving interventions on human beings in the field of biomedicine. ” Article 2 – Scope “ 1. This Protocol covers the full range of research activities in the health field involving interventions on human beings. 2. This Protocol does not apply to research on embryos in vitro. It does apply to research on foetuses and embryos in vivo. ... ” Article 3 – Primacy of the human being “ The interests and welfare of the human being participating in research shall prevail over the sole interest of society or science. ” Article 18 – Research during pregnancy or breastfeeding “ 1. Research on a pregnant woman which does not have the potential to produce results of direct benefit to her health, or to that of her embryo, foetus or child after birth, may only be undertaken if the following additional conditions are met: ( i ) the research has the aim of contributing to the ultimate attainment of results capable of conferring benefit to other women in relation to reproduction or to other embryos, foetuses or children; ... ” The explanatory report repeats the terms of the explanatory report on the convention. D. The Working Party on the Protection of the Human Embryo and Foetus : protection of the human embryo in vitro (2003) 39. The Working Party on the Protection of the Human Embryo and Foetus set up by the Steering Committee on Bioethics reached the following conclusion in a report drawn up in 2003: “ This report aimed at giving an overview of current positions found in Europe regarding the protection of the human embryo in vitro and the arguments supporting them. It shows a broad consensus on the need for the protection of the embryo in vitro. However, the definition of the status of the embryo remains an area where fundamental differences are encountered, based on strong arguments. These differences largely form the basis of most divergences around the other issues related to the protection of the embryo in vitro. Nevertheless, even if agreement cannot be reached on the status of the embryo, the possibility of re - examining certain issues in the light of the latest developments in the biomedical field and related potential therapeutic advances could be considered. In this context, while acknowledging and respecting the fundamental choices made by the different countries, it seems possible and desirable with regard to the need to protect the embryo in vitro on which all countries have agreed, that common approaches be identified to ensure proper conditions for the application of procedures involving the creation and use of embryos in vitro. The purpose of this report is to aid reflection towards that objective. ” E. The European Group on Ethics in Science and New Technologies at the European Commission 40. The Group has issued, inter alia, the following opinion on the ethical aspects of research involving the use of human embryos in the context of the 5th Framework Programme ( 23 November 1998 ): “ ... Legal background Controversies on the concept of beginning of life and ‘ personhood ’ Existing legislation in the Member States differs considerably from one another regarding the question of when life begins and about the definition of ‘ personhood ’. As a result, no consensual definition, neither scientifically nor legally, of when life begins exists. Two main views about the moral status of the embryo and thus regarding the legal protection afforded to them with respect to scientific research exist: (i) human embryos are not considered as human beings and consequently have a relative worth of protection; (ii) human embryos have the same moral status as human beings and consequently are equally worthy of protection. The discussion of common rules on embryo research is continuing. Recently many European countries, when discussing and signing the Council of Europe Convention on Human Rights and Biomedicine, failed to reach a consensus concerning the definition of the embryo, and, therefore, were unable to find common ground on which to place the admissibility of human embryo research within the Convention. Hence, it is up to the Member States to legislate in this area. Yet, nevertheless, Article 18.1 of the Convention stipulates ‘ where the law allows research on embryos in vitro, it shall ensure adequate protection of the embryo ’. ... Different approaches regarding the definition of the human embryo In most Member States there is presently no legal definition of the human embryo ( Belgium, Denmark, Finland, France, Greece, Ireland, Italy, Luxembourg, Netherlands, Portugal and Sweden ). Among those Member States which define the embryo in their legislation, the existing definitions vary considerably from one country to another ( Austria, Germany, Spain and the United Kingdom ) ... ... Different scope of national legislation Among the Member States with legal provisions on embryo research, there are many differences regarding the activities allowed and prohibited. There are countries where embryo research is allowed only for the benefit of the particular embryo ( Austria, Germany ). There are Member States where embryo research is exceptionally allowed ( France, Sweden ), or allowed under strict conditions ( Denmark, Finland, Spain, United Kingdom ). ... Diversity of views The diversity of views regarding the question whether or not research on human embryos in vitro is morally acceptable, depends on differences in ethical approaches, philosophical theories and national traditions, which are deeply rooted in European culture. Two contrasting approaches exist: a deontological approach, in which duties and principles control the ends and consequences of our actions; and utilitarian or consequentialist approaches in which human actions are evaluated in terms of means and ends or consequences. ... The group submits the following opinion In the preamble it appeared crucial to recall that the progress of knowledge of life sciences, which in itself has an ethical value, cannot, in any case, prevail over fundamental human rights and the respect which is due to all the members of the human family. The human embryo, whatever the moral or legal status conferred upon it in the different European cultures and ethical approaches, deserves legal protection. Even if taking into account the continuity of human life, this protection ought to be reinforced as the embryo and the foetus develop. The Treaty on European Union, which does not foresee legislative competence in the fields of research and medicine, implies that such protection falls within the competence of national legislation (as is the case for medically assisted procreation and voluntary interruption of pregnancy). However, Community authorities should be concerned with ethical questions resulting from medical practice or research dealing with early human development. However, when doing so, the said Community authorities have to address these ethical questions taking into account the moral and philosophical differences, reflected by the extreme diversity of legal rules applicable to human embryo research, in the 15 Member States. It is not only legally difficult to seek harmonisation of national laws at Community level, but because of lack of consensus, it would be inappropriate to impose one exclusive moral code. The respect for different philosophical, moral or legal approaches and for diverse national culture is essential to the building of Europe. From an ethical point of view, the multicultural character of European society requires mutual tolerance to be shown by the citizens and political figures of the European Nation States that have chosen uniquely to tie their destiny together, while at the same time ensuring mutual respect for different historical traditions which are exceedingly strong. From a legal point of view, this multiculturalism is based upon Article 6 of the Amsterdam Treaty (ex Article F of the Treaty on European Union) which recognises fundamental rights at Union level notably based on ‘ constitutional traditions common to the Member States ’. It also declares that ‘ the Union shall respect the national identity of its Member States ’. It results from the aforementioned principles, that, in the scope of European research programmes, the question of research on the human embryo has to be approached, not only with regard to the respect for fundamental ethical principles, common to all Member States, but equally taking into consideration diverse philosophical and ethical conceptions, expressed through the practices and the national regulations in force in this field. ... ” IV. COMPARATIVE LAW 41. In the majority of the member States of the Council of Europe, the offence of unintentional homicide does not apply to the foetus. However, three countries have chosen to create specific offences. In Italy a person who negligently causes a pregnancy to terminate is liable to a prison sentence of between three months and two years under section 17 of the Abortion Act of 22 May 1978. In Spain Article 157 of the Criminal Code makes it a criminal offence to cause damage to the foetus and Article 146 an offence to cause an abortion through gross negligence. In Turkey Article 456 of the Criminal Code lays down that a person who causes damage to another shall be liable to a prison sentence of between six months and one year; if the victim is a pregnant woman and the damage results in premature birth, the Criminal Code prescribes a sentence of between two and five years ’ imprisonment. THE LAW I. ADMISSIBILITY OF THE APPLICATION 42. The Government ’ s main submission was that the application was incompatible ratione materiae with the provisions of the Convention in that Article 2 did not apply to the unborn child. They further submitted that the applicant had had a legal remedy capable of redressing her complaint, namely an action for damages against the hospital in the administrative courts. Accordingly, she had not exhausted domestic remedies as required by Article 35 § 1 of the Convention. In the alternative, they considered that the application should be rejected as being manifestly ill-founded. 43. The applicant complained of the lack of protection of the unborn child under French criminal law and argued that the State had failed to discharge its obligations under Article 2 of the Convention by not allowing the offence of unintentional homicide to cover injury to an unborn child. She further submitted that the remedy available in the administrative courts was ineffective as it was incapable of securing judicial acknowledgment of the homicide of her child as such. Lastly, the applicant asserted that she had had a choice between instituting criminal and administrative proceedings and that, while her recourse to the criminal courts had, unforeseeably, proved unsuccessful, the possibility of applying to the administrative courts had in the meantime become statute-barred. 44. The Court observes that an examination of the application raises the issue whether Article 2 of the Convention is applicable to the involuntary termination of pregnancy and, if so, whether that provision required a criminal remedy to be available in the circumstances of the case or whether its requirements were satisfied by the possibility of an action for damages in the administrative courts. Considered in those terms, the objections that the application is incompatible ratione materiae with the provisions of the Convention and that the applicant failed to exhaust domestic remedies are very closely linked to the substance of the applicant ’ s complaint under Article 2. Consequently, the Court considers it appropriate to join them to the merits (see, among other authorities, Airey v. Ireland, judgment of 9 October 1979, Series A no. 32, p. 11, § 19). 45. The application cannot therefore be declared inadmissible either as being incompatible ratione materiae with the provisions of the Convention or for failure to exhaust domestic remedies within the meaning of Article 35 § 1 of the Convention. The Court further considers that the application raises issues of fact and law which require examination of the merits. It accordingly concludes that the application is not manifestly ill-founded. Having also established that no other obstacle to its admissibility exists, the Court declares it admissible. II. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 46. The applicant complained of the authorities ’ refusal to classify the taking of her unborn child ’ s life as unintentional homicide. She argued that the absence of criminal legislation to prevent and punish such an act breached Article 2 of the Convention, which provides: “1. Everyone ’ s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. 2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection.” A. The parties ’ submissions 1. The applicant 47. The applicant asserted that the point at which life began had a universal meaning and definition. Even though that was in the nature of things, it was now scientifically proven that all life began at fertilisation. That was an experimental finding. A child that had been conceived but not yet born was neither a cluster of cells nor an object, but a person. Otherwise, it would have to be concluded that in the instant case she had not lost anything. Such an argument was unacceptable for a pregnant woman. Accordingly, the term “everyone” (“ toute personne ”) in Article 2 of the Convention was to be taken to mean human beings rather than individuals with the attributes of legal personality. Indeed, that had been the position taken by the Conseil d ’ Etat and the Court of Cassation, which, having agreed to review the compatibility of the Termination of Pregnancy Act with Article 2, had been compelled to accept that, from the first moments of its life in the womb, the unborn child came within the scope of that provision ( Conseil d ’ Etat ( full court ), 21 December 1990, Recueil Lebon, p. 368; Court of Cassation (Criminal Division), 27 November 1996, Bulletin criminel no. 431). 48. In the applicant ’ s submission, French law guaranteed all human beings the right to life from conception, subject to certain exceptions provided for by law in the case of abortion. In that connection, she added that all forms of abortion, with the exception of therapeutic abortion, were incompatible with Article 2 of the Convention on account of the interference with the right to life of the conceived child. Even if it were accepted that, subject to certain conditions, States could allow women to have an abortion if they requested one, the Contracting States were not at liberty to exclude the unborn child from the protection of Article 2. A distinction should be made between the rule and the exception. Section 1 of the Voluntary Termination of Pregnancy Act of 1975 (reproduced in Article 16 of the Civil Code and Article L. 2211-1 of the Public Health Code – see paragraph 28 above) laid down the rule, namely respect for every human being from the beginning of its life, and subsequently provided for an exception in case of necessity and in accordance with conditions defined by law. The legislature had also implicitly accepted that life began at the moment of conception by laying down a number of rules protecting the embryo in vitro in the laws on bioethics of 29 July 1994 (see paragraph 34 above). Accordingly, although death could in exceptional cases prevail over life, life remained the fundamental value protected by the Convention. The exception should not rule out the possibility of punishing a third party who, through negligence, caused an unborn child to die. The mother ’ s wishes could not be equated with negligence on the part of a third party. The Court could therefore validly hold that the Contracting Parties ’ legislation should ensure the protection of the conceived child by making unintentional homicide of the latter a criminal offence, even if their legislation also permitted abortion. 49. The applicant pointed out that, as the Court had held, States had “a primary duty ... to secure the right to life by putting in place effective criminal-law provisions to deter the commission of offences against the person, backed up by law-enforcement machinery for the prevention, suppression and punishment of breaches of such provisions” (see Kılıç v. Turkey, no. 22492/93, § 62, ECHR 2000-III, and Mahmut Kaya v. Turkey, no. 22535/93, § 85, ECHR 2000-III). In her submission, the new line of case-law adopted by the Court in Calvelli and Ciglio v. Italy ([GC], no. 32967/96, § 51, ECHR 2002-I), to the effect that where the right to life had been infringed unintentionally the judicial system did not necessarily require the provision of a criminal-law remedy, could not be followed in the instant case, because a civil remedy did not “satisfy the requirement of expressing public disapproval of a serious offence, such as the taking of life” ( see the partly dissenting opinion of Judge Rozakis joined by Judges Bonello and Strážnická in the above-mentioned case ). That would amount to debasing the right to life protected by Article 2. The applicant therefore considered that creating the offence of involuntary termination of pregnancy would fill the vacuum created by the Court of Cassation and would compensate for the State ’ s failure to fulfil its duty to protect the human being at the earliest stages of its development (see paragraph 32 above). 50. The applicant argued that she had had the option of instituting criminal or administrative proceedings and had been able to choose between the two types of court. She explained that she had chosen to bring criminal proceedings because, firstly, they were the only remedy capable of securing judicial acknowledgment of the unintentional homicide of her child as such and, secondly, because a criminal investigation aided in the task of establishing responsibility. In her submission, there had been nothing to suggest that the criminal proceedings were bound to fail, as the position adopted by the Court of Cassation in her case in 1999 and subsequently confirmed in 2001 and 2002 had by no means been definitively established, in view of the resistance shown in decisions by courts of appeal and the virtually unanimous criticism by legal writers (see paragraph 3 1 above). For example, in a judgment of 3 February 2000 (Reims Court of Appeal, Dalloz 2000, case-law, p. 873), the Court of Appeal had convicted a motorist of unintentional homicide for driving into another vehicle, seriously injuring the driver, who was eight months ’ pregnant, and subsequently causing the death of the baby (see also Versailles Court of Appeal, 19 January 2000, unreported). The applicant submitted in conclusion that, on the face of it, she had had no reason to apply to the administrative courts and contended that she could not have known whether to do so until Dr G. had been acquitted by the Criminal Court. However, by that time an action against the administrative authorities had already become statute-barred. The remedy in the administrative courts could not therefore be regarded as effective within the meaning of Article 35 § 1 of the Convention. 2. The Government 51. After emphasising that neither metaphysics nor medicine had given a definitive answer to the question whether and from what moment a foetus was a human being, the Government asserted that from a legal standpoint Article 2 of the Convention did not protect the foetus ’ s right to life as a person. The use of the term “everyone” (“ toute personne ”) in Article 2 and in Articles 5, 6, 8 to 11 and 13 of the Convention was such that it could apply only postnatally ( see X v. the United Kingdom, no. 8416/79, Commission decision of 13 May 1980, Decisions and Reports (DR) 19, p. 244). The same observation applied to Article 2 taken separately, as all the restrictions on “everyone ’ s” right to life provided for in paragraph 2 concerned, by their very nature, persons who had already been born. 52. Nor could the “right to life” referred to in the same Article be construed as applying to the foetus; it concerned only the life of persons who had already been born alive, since it would be neither consistent nor justified to detach that right from the entity in which it was vested, namely the person. Whereas, by contrast, Article 4 § 1 of the 1969 American Convention on Human Rights provided: “Every person has the right to have his life respected. This right shall be protected by law and, in general, from the moment of conception”, the signatories to the Convention would not have envisaged such an extension of Article 2 of the Convention since by 1950 virtually all the Contracting Parties had already authorised abortion in certain circumstances. To acknowledge that the foetus had the right to life within the meaning of Article 2 would place the mother ’ s life and that of the foetus on an equal footing. Furthermore, prioritising the protection of the foetus ’ s life or restricting it solely in the event of a severe, immediate and insurmountable risk to the mother ’ s life would constitute a step backwards historically and socially and would call into question the legislation in force in many States Parties to the Convention. 53. The Government pointed out that the Commission had considered whether it was appropriate to recognise the foetus as having the right to life subject to certain restrictions relating to the protection of the mother ’ s life and health (see X. v. the United Kingdom, cited above). They submitted that such a limitation would not allow recourse to abortion for therapeutic, moral or social reasons, which at the time when the text of the Convention was being negotiated had nonetheless already been authorised by the legislation of a number of countries. It would amount to penalising States that had opted for the right to abortion as an expression and application of a woman ’ s autonomy over her own body and her right to control her maternity. The States Parties had not intended to confer on the expression “right to life” a meaning that extended to the foetus and was manifestly contrary to their domestic legislation. 54. Having regard to the foregoing, the Government considered that the Convention was not designed to cover the foetus and that if the European States wished to ensure effective protection of the foetus ’ s right to life, a provision separate from Article 2 would have to be drawn up. To construe Article 2 as allowing implicit exceptions to the right to life would be at variance with both the letter and the spirit of that Article. Firstly, the permissible exceptions formed an exhaustive list, there being no other option where such a fundamental right was concerned; here, the Government referred to the Pretty case in which the Court had stated: “[Article 2] sets out the limited circumstances when deprivation of life may be justified” ( see Pretty v. the United Kingdom, no. 2346/02, § 37, ECHR 2002-III). Secondly, the exceptions were to be understood and construed strictly ( see Öcalan v. Turkey, no. 46221/99, § 201, 12 March 2003 ). 55. The Government observed that in the instant case the applicant had undergone a therapeutic abortion as a result of acts carried out by the doctor outside the statutory period within which abortion was permitted, which had been ten weeks at the time and was now twelve weeks (see paragraphs 27 ‑ 28 above). However, if the Court were to take the view that that factor rendered Article 2 applicable, and that the foetus should therefore be regarded as a person protected by that provision, they pointed out that in several European States the statutory period for abortion was more than twenty weeks, for example in the Netherlands or in England (where abortions could be carried out at up to twenty-four weeks). Unless domestic legislation and the national authorities ’ margin of appreciation in this sphere were to be called into question, Article 2 could consequently not apply to the unborn child. That also meant, in the Government ’ s submission, that the issue of the viability of the foetus was irrelevant in the instant case. It would be paradoxical for States to have a margin of appreciation allowing them to exclude the foetus from protection under Article 2 where a pregnancy was terminated intentionally with the mother ’ s consent – and sometimes on that condition alone – if they were not granted the same margin of appreciation in excluding the foetus from the scope of that provision where a pregnancy was interrupted on account of unintentional negligence. 56. In the alternative, the Government pointed out that in French law the foetus was protected indirectly through the pregnant woman ’ s body, of which it was an extension. That was the case where abortion was carried out intentionally but not in one of the cases exhaustively listed in the relevant legislation (Article 223-10 of the Criminal Code – see paragraph 25 above), or in the event of an accident. In the latter case, the ordinary remedies for establishing civil liability could be used, and the mother could be awarded compensation for personal, pecuniary and non-pecuniary damage, her pregnant state being necessarily taken into account. Furthermore, under the criminal law, anyone who through inadvertence caused a pregnancy to be terminated could be prosecuted for causing unintentional injury, the destruction of the foetus being regarded as damage to the woman ’ s organs. 57. The Government argued that the applicant could have sought damages from the hospital for the doctor ’ s negligence within the four-year limitation period for actions for damages in the administrative courts. They explained that victims of damage caused by public servants had two distinct remedies available. If the damage resulted from personal negligence on the part of the public servant, not intrinsically connected with the performance of his or her duties, the victim could obtain compensation by suing the person concerned in the ordinary courts, whereas if the damage resulted from negligence that disclosed failings on the part of the authority in question, the matter would be classified as official negligence and come within the jurisdiction of the administrative courts. The Government submitted that in Epoux V. ( judgment of 10 April 1992 ) the Conseil d ’ Etat had abandoned its position that a hospital department could incur liability only in cases of gross negligence. Furthermore, an exception to the rule that the hospital was liable in the event of medical negligence occurred where negligence was deemed to be severable from the public service, either because it was purely personal and thus wholly unrelated to the performance of official duties – which had not been the case in this instance – or because it was intentional or exceptionally serious, amounting to inexcusable professional misconduct of such gravity that it ceased to be regarded as indissociable from the performance of the official duties in question. The Government explained that personal and official negligence were in fact usually interlinked, particularly in cases of unintentional injury or homicide. For that reason, the Conseil d ’ Etat had accepted long ago that the personal liability of a public servant did not exclude the liability of the authority to which he or she was attached ( Epoux Lemonnier, 1918). The Government therefore considered that the applicant had had the possibility of seeking redress in the administrative courts as soon as the damage had occurred, without having to wait for the criminal proceedings to end. Such an action would have been all the more likely to succeed as, for the hospital to be held liable, only ordinary negligence had to be made out, and the expert reports ordered by the courts had referred precisely to the hospital department ’ s organisational problems. The administrative courts could therefore legitimately have been expected to reach the same conclusion. 58. The Government asserted that that remedy had been effective and adequate in terms of the positive obligations under Article 2 of the Convention (see Calvelli and Ciglio, cited above) and that the applicant had, through her own inaction or negligence, deprived herself of a remedy which had nonetheless been available to her for four years from the time when the damage had occurred, and in respect of which she could have received advice from her lawyers. In Calvelli and Ciglio there had been no doubt that Article 2 of the Convention was applicable to a newborn child. In the instant case, in which the applicability of Article 2 was questionable, there were therefore additional reasons for considering that the possibility of using civil or administrative remedies to establish liability was sufficient. In the Government ’ s submission, such an action for damages could have been based on the taking of the life of the child the applicant was carrying, since the relevant case-law of the administrative courts did not appear thus far to preclude the possibility of affording embryos protection under Article 2 of the Convention ( Conseil d ’ Etat ( full court ), Confédération nationale des associations familiales catholiques et autres, judgment of 21 December 1990 – see paragraph 47 above). At the material time, in any event, the issue had not been clearly resolved by the Conseil d ’ Etat. 59. In conclusion, the Government considered that, even supposing that Article 2 was applicable in the instant case, that provision did not require the life of the foetus to be protected by the criminal law in the event of unintentional negligence, as was the position in many European countries. B. Third-party interventions 1. Center for Reproductive Rights 60. The Center for Reproductive Rights (CRR) submitted that unborn foetuses could not be treated as persons under the law and hence covered by Article 2 of the Convention because there was no legal basis for such an approach (i), and because granting them that status would interfere with women ’ s basic human rights (ii). Lastly, they argued that it would be inadvisable to extend rights to the foetus because the loss of a wanted foetus constituted an injury to the expectant mother (iii). 61. (i) The assertion that a foetus was a person ran counter to the case-law of the Convention institutions, the legislation of the member States of the Council of Europe, international standards and the case-law of courts throughout the world. Relying on the decisions in X v. the United Kingdom (Commission decision cited above), H. v. Norway (no. 17004/90, Commission decision of 19 May 1992, DR 73, p. 155) and, most recently, Boso v. Italy (no. 50490/99, ECHR 2002-VII), in which the Commission and the Court had held that granting a foetus the same rights as a person would place unreasonable limitations on the Article 2 rights of persons already born, the CRR saw no reason to depart from that conclusion unless the right to abortion in all Council of Europe member States were to be called into question. 62. The foetus was not recognised as a person in European domestic legislation or by the national courts interpreting it. The CRR drew attention to the Court of Cassation ’ s settled position (see paragraph 29 above), which was consistent with the distinction made in French law between the concepts of “human being” and “person”, the former being a biological concept and the latter a legal term attached to a legal category whose rights took effect and were perfected at birth, although in certain circumstances the rights acquired at birth were retroactive to conception. The national courts had also addressed the issue of the legal status of the person in the context of abortion. For example, the Austrian and Netherlands Constitutional Courts had held that Article 2 should not be interpreted as protecting the unborn child, and the French Constitutional Council had found no conflict between legislation on the voluntary termination of pregnancy and the constitutional protection of the child ’ s right to health (decision no. 74-54 of 15 January 1975 ). That reading was consistent with the relevant legislation throughout Europe: thirty-nine member States of the Council of Europe – the exceptions being Andorra, Ireland, Liechtenstein, Malta, Poland and San Marino, which had maintained severe restrictions on abortion (with only very narrow therapeutic exceptions) – permitted a woman to terminate a pregnancy without restriction during the first trimester or on very broad therapeutic grounds. 63. With regard to international and regional standards, the CRR observed that the International Covenant on Civil and Political Rights provided no indication that the right to life applied to a foetus. It added that the Human Rights Committee had routinely emphasised the threat to women ’ s lives posed by illegal abortions. The same was true of the Convention on the Rights of the Child and the interpretation by the Committee on the Rights of the Child of Article 6, which provided: “Every child has the inherent right to life. ” On several occasions the Committee had stated its concern about the difficulties of adolescent girls in having their pregnancies terminated in safe conditions and had expressed its fears as to the impact of punitive legislation on maternal mortality rates. The case-law of the Inter-American regional system, notwithstanding Article 4 of the American Convention on Human Rights (see paragraph 52 above), did not provide absolute protection to a foetus before birth. The Inter-American Commission on Human Rights had held in Baby Boy (1981) that Article 4 did not preclude liberal national-level abortion legislation. Furthermore, the Organisation of African Unity had adopted the Protocol on the Rights of Women on 11 July 2003 to supplement the African Charter on Human and Peoples ’ Rights of 27 June 1981, broadening the protection of the right of women to terminate a pregnancy. 64. Lastly, with regard to non-European States, the CRR noted that the Supreme Courts of Canada and the United States had declined to treat unborn foetuses as persons under the law (in Winnipeg Child Family Services v. G. (1997) and Roe v. Wade (1973)). The United States Supreme Court had reaffirmed that position in a recent case in 2000 ( Stenberg v. Carhart ), in which it had declared unconstitutional a State law prohibiting certain methods of abortion and providing no protection for women ’ s health. Similarly, in South Africa, ruling on a constitutional challenge to the recently enacted Choice on Termination of Pregnancy Act, which permitted abortion without restriction during the first trimester and on broad grounds at later stages of pregnancy, the High Court had considered that the foetus was not a legal person ( Christian Lawyers Association of South Africa and Others v. Minister of Health and Others, 1998). 65. (ii) In the CRR ’ s submission, recognition of the foetus ’ s rights interfered, in particular, with women ’ s fundamental right to a private life. In Brüggemann and Scheuten v. Germany ( no. 6959/75, Commission ’ s report of 12 July 1977, DR 10, p. 100), the Commission had implicitly accepted that an absolute prohibition on abortion would be an impermissible interference with privacy rights under Article 8 of the Convention. Subsequently, while rejecting the suggestion that Article 2 protected the right to life of foetuses, the Convention institutions had further recognised that the right to respect for the private life of the pregnant woman, as the person primarily concerned by the pregnancy and its continuation or termination, prevailed over the father ’ s rights (see paragraph 61 above). In addition to respect for private life, the preservation of the pregnant woman ’ s life and health took precedence. In holding that restrictions on the exchange of information on abortion created a risk to the health of women whose pregnancies posed a threat to their lives, the Court had ruled that the injunction in question had been “disproportionate to the aims pursued” and that, consequently, a woman ’ s health interest prevailed over a State ’ s declared moral interest in protecting the rights of a foetus (see Open Door and Dublin Well Woman v. Ireland, judgment of 29 October 1992, Series A no. 246-A). 66. (iii) In the CRR ’ s submission, declining to recognise the foetus as a person under Article 2 did not preclude a remedy for injuries such as the one that had given rise to the instant case. The loss of a wanted foetus was an injury suffered by the expectant mother. Consequently, the rights that were entitled to protection in the instant case were those of the applicant and not those of the foetus she had lost. It was within the power of the legislature of every Council of Europe member State to recognise both civil and criminal offences committed by individuals who injured a woman by causing the termination of a wanted pregnancy. 2. Family Planning Association 67. The Family Planning Association (FPA) set out primarily to argue that the right to life enshrined in Article 2 of the Convention should not be interpreted as extending to the unborn (i). In support of that argument, the FPA provided the Court with information on the current legal position on abortion in the member States of the Council of Europe (ii), and a summary of the legal status of the unborn in United Kingdom law (iii). 68. (i) The FPA pointed out that Article 2 was drafted in such a way as to allow only very limited exceptions to the prohibition it imposed on intentional deprivation of life. Voluntary termination of pregnancy was not one of those exceptions; nor could any of the exceptions be interpreted to include that practice. Recent evidence showed that voluntary termination of pregnancy on request in the first trimester was now widely accepted across Europe, as was termination on certain grounds in the second trimester. If Article 2 were interpreted as applying to the unborn from the moment of conception, as contended by the applicant, the Court would be calling into question the laws on abortion enacted in most Contracting States. Furthermore, that would render illegal the majority of methods of contraception currently in use throughout Europe, since they acted or could act after conception to prevent implantation. There would therefore be devastating implications in terms of both individual choices and lives and social policy. The English High Court had recently acknowledged that that would be the undesirable consequence if it were to accept the argument of the Society for the Protection of Unborn Children that emergency hormonal contraceptives were abortifacients because pregnancy began at conception (see Society for the Protection of Unborn Children v. Secretary of State for Health [2002 ] High Court, Administrative Court (England and Wales) ). 69. The possibility that Article 2 applied to the foetus but with certain implied limitations, for example only after a critical point in time (viability or some other gestational stage) should likewise be rejected. Recent evidence showed that, beyond the broad consensus identified above, there was a complete lack of any generally accepted standard in relation to the gestational limit on the availability of abortion, the grounds on which termination was available after that point in time, or the conditions that had to be satisfied. 70. (ii) Recent survey information was available ( Abortion Legislation in Europe, International Planned Parenthood Federation (IPPF) European Network, July 2002, and Abortion Policies: a Global Review, United Nations Population Division, June 2002) in relation to the legal position on abortion in the Council of Europe member States with the exception of Serbia and Montenegro. The surveys showed that four States essentially prohibited abortion, except where the pregnant woman ’ s life was endangered (Andorra, Liechtenstein, San Marino and Ireland), whereas the great majority of member States provided for much wider access to abortion services. Such evidence of the availability of abortion across Europe was in keeping with the general trend towards the liberalisation of abortion laws. No general consensus emerged from the practice of the member States as to the period during which abortion was permitted after the first trimester or the conditions that had to be satisfied for abortion to be available in the later stages of pregnancy. Furthermore, the grounds on which abortion was permitted without a time-limit were many and varied. The FPA accordingly contended that if Article 2 were interpreted as applying to the unborn from some particular point in time, that would call into question the legal position in a number of States where termination was available on certain grounds at a later stage than that determined by the Court. 71. (iii) It was now a settled general principle of the common law that in the United Kingdom legal personality crystallised upon birth. Up until that point, the unborn had no legal personality independent of the pregnant woman. However, despite that lack of legal personality, the interests of the unborn were often protected while they were in the womb, even though those interests could not be realised as enforceable rights until the attainment of legal personality on birth. 72. In the civil law, that specifically meant that prior to birth the unborn had no standing to bring proceedings for compensation or other judicial remedies in relation to any harm done or injury sustained while in the womb, and that no claim could be made on their behalf (see Paton v. British Pregnancy Advisory Service Trustees [1979] Queen ’ s Bench Reports 276). Efforts had been made to persuade the courts dealing with such cases that according to the law of succession, the unborn could be deemed to be “born” or “persons in being” whenever their interests so demanded. However, Burton confirmed that that principle was also subject to the live birth of a child ([1993] Queen ’ s Bench Reports 204, 227). 73. In the criminal law, it was well established that the unborn were not treated as legal persons for the purpose of the common-law rules of murder or manslaughter. In Attorney-General ’ s Reference (no. 3, 1994), the House of Lords had concluded that injury of the unborn without a live birth could not lead to a conviction for murder, manslaughter or any other violent crime. The rights of the unborn were further protected by the criminal law on abortion. Sections 58 and 59 of the Offences against the Person Act 1861 had introduced the statutory offences of procuring abortion and procuring the means to cause abortion. Similarly, by section 1 of the Infant Life (Preservation) Act 1929 the destruction of the unborn, where capable of live birth, was a serious offence. Those Acts were still in force. Abortion and child destruction remained illegal, subject to the application of the Abortion Act 1967. C. The Court ’ s assessment 74. The applicant complained that she had been unable to secure the conviction of the doctor whose medical negligence had caused her to have to undergo a therapeutic abortion. It has not been disputed that she intended to carry her pregnancy to full term and that her child was in good health. Following the material events, the applicant and her partner lodged a criminal complaint, together with an application to join the proceedings as civil parties, alleging unintentional injury to the applicant and unintentional homicide of the child she was carrying. The courts held that the prosecution of the offence of unintentional injury to the applicant was statute-barred and, quashing the Court of Appeal ’ s judgment on the second point, the Court of Cassation held that, regard being had to the principle that the criminal law was to be strictly construed, a foetus could not be the victim of unintentional homicide. The central question raised by the application is whether the absence of a criminal remedy within the French legal system to punish the unintentional destruction of a foetus constituted a failure on the part of the State to protect by law the right to life within the meaning of Article 2 of the Convention. 1. Existing case-law 75. Unlike Article 4 of the American Convention on Human Rights, which provides that the right to life must be protected “in general, from the moment of conception”, Article 2 of the Convention is silent as to the temporal limitations of the right to life and, in particular, does not define “everyone” (“ toute personne ” ) whose “life” is protected by the Convention. The Court has yet to determine the issue of the “beginning” of “everyone ’ s right to life” within the meaning of this provision and whether the unborn child has such a right. To date it has been raised solely in connection with laws on abortion. Abortion does not constitute one of the exceptions expressly listed in paragraph 2 of Article 2, but the Commission has expressed the opinion that it is compatible with the first sentence of Article 2 § 1 in the interests of protecting the mother ’ s life and health because “if one assumes that this provision applies at the initial stage of the pregnancy, the abortion is covered by an implied limitation, protecting the life and health of the woman at that stage, of the ‘ right to life ’ of the foetus” (see X v. the United Kingdom, Commission decision cited above, p. 253). 76. Having initially refused to examine in abstracto the compatibility of abortion laws with Article 2 of the Convention (see X v. Norway, no. 867/60, Commission decision of 29 May 1961, Collection of Decisions, vol. 6, p. 34, and X v. Austria, no. 7045/75, Commission decision of 10 December 1976, DR 7, p. 87), the Commission acknowledged in Brüggemann and Scheuten (cited above) that women complaining under Article 8 of the Convention about the Constitutional Court ’ s decision restricting the availability of abortions had standing as victims. It stated on that occasion: “... pregnancy cannot be said to pertain uniquely to the sphere of private life. Whenever a woman is pregnant her private life becomes closely connected with the developing foetus” (ibid., p. 116, § 59). However, the Commission did not find it “necessary to decide, in this context, whether the unborn child is to be considered as ‘ life ’ in the sense of Article 2 of the Convention, or whether it could be regarded as an entity which under Article 8 § 2 could justify an interference ‘ for the protection of others ’ ” (ibid., p. 116, § 60). It expressed the opinion that there had been no violation of Article 8 of the Convention because “not every regulation of the termination of unwanted pregnancies constitutes an interference with the right to respect for the private life of the mother” (ibid., pp. 116-17, § 61), while emphasising: “There is no evidence that it was the intention of the Parties to the Convention to bind themselves in favour of any particular solution” (ibid., pp. 117-18, § 64). 77. In X v. the United Kingdom ( cited above ), the Commission considered an application by a man complaining that his wife had been allowed to have an abortion on health grounds. While it accepted that the potential father could be regarded as the “victim” of a violation of the right to life, it considered that the term “everyone” in several Articles of the Convention could not apply prenatally, but observed that “such application in a rare case – e.g. under Article 6, paragraph 1 – cannot be excluded” (p. 2 4 9, § 7; for such an application in connection with access to a court, see Reeve v. the United Kingdom, no. 2484 4/94, Commission decision of 30 November 1994, DR 79-A, p. 146). The Commission added that the general usage of the term “everyone” (“ toute personne ”) and the context in which it was used in Article 2 of the Convention did not include the unborn. As to the term “life” and, in particular, the beginning of life, the Commission noted a “divergence of thinking on the question of where life begins” and added: “While some believe that it starts already with conception, others tend to focus upon the moment of nidation, upon the point that the foetus becomes ‘ viable ’, or upon live birth” ( X v. the United Kingdom, p. 250, § 12). The Commission went on to examine whether Article 2 was “to be interpreted: as not covering the foetus at all; as recognising a ‘ right to life ’ of the foetus with certain implied limitations; or as recognising an absolute ‘ right to life ’ of the foetus” (ibid. p. 251, § 17). Although it did not express an opinion on the first two options, it categorically ruled out the third interpretation, having regard to the need to protect the mother ’ s life, which was indissociable from that of the unborn child: “The ‘ life ’ of the foetus is intimately connected with, and it cannot be regarded in isolation of, the life of the pregnant woman. If Article 2 were held to cover the foetus and its protection under this Article were, in the absence of any express limitation, seen as absolute, an abortion would have to be considered as prohibited even where the continuance of the pregnancy would involve a serious risk to the life of the pregnant woman. This would mean that the ‘ unborn life ’ of the foetus would be regarded as being of a higher value than the life of the pregnant woman” (ibid., p. 252, § 19). The Commission adopted that solution, noting that by 1950 practically all the Contracting Parties had “permitted abortion when necessary to save the life of the mother” and that in the meantime the national law on termination of pregnancy had “shown a tendency towards further liberalisation” (ibid., p. 252, § 20). 78. In H. v. Norway (cited above), concerning an abortion carried out on non-medical grounds against the father ’ s wishes, the Commission added that Article 2 required the State not only to refrain from taking a person ’ s life intentionally but also to take appropriate steps to safeguard life (p. 167). It considered that it did not have to decide “whether the foetus may enjoy a certain protection under Article 2, first sentence”, but did not exclude the possibility that “in certain circumstances this may be the case notwithstanding that there is in the Contracting States a considerable divergence of views on whether or to what extent Article 2 protects the unborn life” (ibid.). It further noted that in such a delicate area the Contracting States had to have a certain discretion, and concluded that the mother ’ s decision, taken in accordance with Norwegian legislation, had not exceeded that discretion ( p. 168). 79. The Court has only rarely had occasion to consider the application of Article 2 to the foetus. In Open Door and Dublin Well Woman (cited above ), the Irish Government relied on the protection of the life of the unborn child to justify their legislation prohibiting the provision of information concerning abortion facilities abroad. The only issue that was resolved was whether the restrictions on the freedom to receive and impart the information in question had been necessary in a democratic society, within the meaning of paragraph 2 of Article 10 of the Convention, to pursue the “legitimate aim of the protection of morals of which the protection in Ireland of the right to life of the unborn is one aspect” (pp. 27 ‑ 28, § 63), since the Court did not consider it relevant to determine “whether a right to abortion is guaranteed under the Convention or whether the foetus is encompassed by the right to life as contained in Article 2” (p. 28, § 66). Recently, in circumstances similar to those in H. v. Norway (cited above), where a woman had decided to terminate her pregnancy against the father ’ s wishes, the Court held that it was not required to determine “whether the foetus may qualify for protection under the first sentence of Article 2 as interpreted [in the case-law relating to the positive obligation to protect life]”, and continued: “Even supposing that, in certain circumstances, the foetus might be considered to have rights protected by Article 2 of the Convention, ... in the instant case ... [the] pregnancy was terminated in conformity with section 5 of Law no. 194 of 1978” – a law which struck a fair balance between the woman ’ s interests and the need to ensure protection of the foetus (see Boso, cited above ). 80. It follows from this recapitulation of the case-law that in the circumstances examined to date by the Convention institutions – that is, in the various laws on abortion – the unborn child is not regarded as a “person” directly protected by Article 2 of the Convention and that if the unborn do have a “right” to “life”, it is implicitly limited by the mother ’ s rights and interests. The Convention institutions have not, however, ruled out the possibility that in certain circumstances safeguards may be extended to the unborn child. That is what appears to have been contemplated by the Commission in considering that “Article 8 § 1 cannot be interpreted as meaning that pregnancy and its termination are, as a principle, solely a matter of the private life of the mother” (see Brüggemann and Scheuten, cited above, pp. 116-17, § 61) and by the Court in the above-mentioned Boso decision. It is also clear from an examination of these cases that the issue has always been determined by weighing up various, and sometimes conflicting, rights or freedoms claimed by a woman, a mother or a father in relation to one another or vis-à-vis an unborn child. 2. Approach in the instant case 81. The special nature of the instant case raises a new issue. The Court is faced with a woman who intended to carry her pregnancy to term and whose unborn child was expected to be viable, at the very least in good health. Her pregnancy had to be terminated as a result of an error by a doctor and she therefore had to have a therapeutic abortion on account of negligence by a third party. The issue is consequently whether, apart from cases where the mother has requested an abortion, harming a foetus should be treated as a criminal offence in the light of Article 2 of the Convention, with a view to protecting the foetus under that Article. This requires a preliminary examination of whether it is advisable for the Court to intervene in the debate as to who is a person and when life begins, in so far as Article 2 provides that the law must protect “everyone ’ s right to life”. 82. As is apparent from the above recapitulation of the case-law, the interpretation of Article 2 in this connection has been informed by a clear desire to strike a balance, and the Convention institutions ’ position in relation to the legal, medical, philosophical, ethical or religious dimensions of defining the human being has taken into account the various approaches to the matter at national level. This has been reflected in the consideration given to the diversity of views on the point at which life begins, of legal cultures and of national standards of protection, and the State has been left with considerable discretion in the matter, as the opinion of the European Group on Ethics in Science and New Technologies at the European Commission appositely puts it: “the ... Community authorities have to address these ethical questions taking into account the moral and philosophical differences, reflected by the extreme diversity of legal rules applicable to human embryo research ... It is not only legally difficult to seek harmonisation of national laws at Community level, but because of lack of consensus, it would be inappropriate to impose one exclusive moral code” (see paragraph 40 above). It follows that the issue of when the right to life begins comes within the margin of appreciation which the Court generally considers that States should enjoy in this sphere, notwithstanding an evolutive interpretation of the Convention, a “living instrument which must be interpreted in the light of present-day conditions” (see Tyrer v. the United Kingdom, judgment of 25 April 1978, Series A no. 26, pp. 15-16, § 31, and subsequent case-law). The reasons for that conclusion are, firstly, that the issue of such protection has not been resolved within the majority of the Contracting States themselves, in France in particular, where it is the subject of debate (see paragraph 83 below) and, secondly, that there is no European consensus on the scientific and legal definition of the beginning of life (see paragraph 84 below). 83. The Court observes that the French Court of Cassation, in three successive judgments delivered in 1999, 2001 and 2002 (see paragraphs 22 and 29 above), considered that the rule that offences and punishment must be defined by law, which required criminal statutes to be construed strictly, excluded acts causing a fatal injury to a foetus from the scope of Article 221-6 of the Criminal Code, under which unintentional homicide of “another” is an offence. However, if, as a result of unintentional negligence, the mother gives birth to a live child who dies shortly after being born, the person responsible may be convicted of the unintentional homicide of the child (see paragraph 30 above). The first-mentioned approach, which conflicts with that of several courts of appeal (see paragraphs 21 and 50 above), was interpreted as an invitation to the legislature to fill a legal vacuum. That was also the position of the Criminal Court in the instant case: “The court ... cannot create law on an issue which [the legislature has] not yet succeeded in defining.” The French parliament attempted such a definition in proposing to create the offence of involuntary termination of pregnancy (see paragraph 32 above), but the bill containing that proposal was lost, on account of the fears and uncertainties that the creation of the offence might arouse as to the determination of when life began, and the disadvantages of the proposal, which were thought to outweigh its advantages (see paragraph 33 above). The Court further notes that alongside the Court of Cassation ’ s repeated rulings that Article 221-6 of the Criminal Code does not apply to foetuses, the French parliament is currently revising the 1994 laws on bioethics, which added provisions to the Criminal Code on the protection of the human embryo (see paragraph 25 above) and required re-examination in the light of scientific and technological progress (see paragraph 34 above). It is clear from this overview that in France the nature and legal status of the embryo and/or foetus are currently not defined and that the manner in which it is to be protected will be determined by very varied forces within French society. 84. At European level, the Court observes that there is no consensus on the nature and status of the embryo and/or foetus (see paragraphs 39- 40 above), although they are beginning to receive some protection in the light of scientific progress and the potential consequences of research into genetic engineering, medically assisted procreation or embryo experimentation. At best, it may be regarded as common ground between States that the embryo/foetus belongs to the human race. The potentiality of that being and its capacity to become a person – enjoying protection under the civil law, moreover, in many States, such as France, in the context of inheritance and gifts, and also in the United Kingdom (see paragraph 72 above) – require protection in the name of human dignity, without making it a “person” with the “right to life” for the purposes of Article 2. The Oviedo Convention on Human Rights and Biomedicine, indeed, is careful not to give a definition of the term “everyone”, and its explanatory report indicates that, in the absence of a unanimous agreement on the definition, the member States decided to allow domestic law to provide clarification for the purposes of the application of that Convention (see paragraph 36 above). The same is true of the Additional Protocol on the Prohibition of Cloning Human Beings and the Additional Protocol on Biomedical Research, which do not define the concept of “human being” (see paragraphs 37 - 38 above). It is worth noting that the Court may be requested under Article 29 of the Oviedo Convention to give advisory opinions on the interpretation of that instrument. 85. Having regard to the foregoing, the Court is convinced that it is neither desirable, nor even possible as matters stand, to answer in the abstract the question whether the unborn child is a person for the purposes of Article 2 of the Convention (“ personne ” in the French text). As to the instant case, it considers it unnecessary to examine whether the abrupt end to the applicant ’ s pregnancy falls within the scope of Article 2, seeing that, even assuming that that provision was applicable, there was no failure on the part of the respondent State to comply with the requirements relating to the preservation of life in the public-health sphere. With regard to that issue, the Court has considered whether the legal protection afforded the applicant by France in respect of the loss of the unborn child she was carrying satisfied the procedural requirements inherent in Article 2 of the Convention. 86. In that connection, it observes that the unborn child ’ s lack of a clear legal status does not necessarily deprive it of all protection under French law. However, in the circumstances of the present case, the life of the foetus was intimately connected with that of the mother and could be protected through her, especially as there was no conflict between the rights of the mother and the father or of the unborn child and the parents, the loss of the foetus having been caused by the unintentional negligence of a third party. 87. In Boso, cited above, the Court said that even supposing that the foetus might be considered to have rights protected by Article 2 of the Convention (see paragraph 79 above), Italian law on the voluntary termination of pregnancy struck a fair balance between the woman ’ s interests and the need to ensure protection of the unborn child. In the present case, the dispute concerns the involuntary killing of an unborn child against the mother ’ s wishes, causing her particular suffering. The interests of the mother and the child clearly coincided. The Court must therefore examine, from the standpoint of the effectiveness of existing remedies, the protection which the applicant was afforded in seeking to establish the liability of the doctor concerned for the loss of her child in utero and to obtain compensation for the abortion she had to undergo. The applicant argued that only a criminal remedy would have been capable of satisfying the requirements of Article 2 of the Convention. The Court does not share that view, for the following reasons. 88. The Court reiterates that the first sentence of Article 2, which ranks as one of the most fundamental provisions in the Convention and also enshrines one of the basic values of the democratic societies making up the Council of Europe (see McCann and Others v. the United Kingdom, judgment of 27 September 1995, Series A no. 324, pp. 45-46, § 147), requires the State not only to refrain from the “intentional” taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction (see, for example, L.C.B. v. the United Kingdom, judgment of 9 June 1998, Reports of Judgments and Decisions 1998-III, p. 1403, § 36). 89. Those principles apply in the public-health sphere too. The positive obligations require States to make regulations compelling hospitals, whether private or public, to adopt appropriate measures for the protection of patients ’ lives. They also require an effective independent judicial system to be set up so that the cause of death of patients in the care of the medical profession, whether in the public or the private sector, can be determined and those responsible made accountable (see Powell v. the United Kingdom (dec.), no. 45305/99, ECHR 2000-V, and Calvelli and Ciglio, cited above, § 49). 90. Although the right to have third parties prosecuted or sentenced for a criminal offence cannot be asserted independently (see Perez v. France [GC], no. 47287/99, § 70, ECHR 2004- I ), the Court has stated on a number of occasions that an effective judicial system, as required by Article 2, may, and under certain circumstances must, include recourse to the criminal law. However, if the infringement of the right to life or to physical integrity is not caused intentionally, the positive obligation imposed by Article 2 to set up an effective judicial system does not necessarily require the provision of a criminal-law remedy in every case. In the specific sphere of medical negligence, “the obligation may for instance also be satisfied if the legal system affords victims a remedy in the civil courts, either alone or in conjunction with a remedy in the criminal courts, enabling any liability of the doctors concerned to be established and any appropriate civil redress, such as an order for damages and for the publication of the decision, to be obtained. Disciplinary measures may also be envisaged” (see Calvelli and Ciglio, cited above, § 51; Lazzarini and Ghiacci v. Italy (dec.), no. 53749/00, 7 November 2002; and Mastromatteo v. Italy [GC], no. 37703/97, § 90, ECHR 2002-VIII). 91. In the instant case, in addition to the criminal proceedings which the applicant instituted against the doctor for unintentionally causing her injury – which, admittedly, were terminated because the offence was covered by an amnesty, a fact that did not give rise to any complaint on her part – she had the possibility of bringing an action for damages against the authorities on account of the doctor ’ s alleged negligence (see Kress v. France [GC], no. 39594/98, §§ 14 et seq., ECHR 2001-VI). Had she done so, the applicant would have been entitled to have an adversarial hearing on her allegations of negligence (see Powell, cited above) and to obtain redress for any damage sustained. A claim for compensation in the administrative courts would have had fair prospects of success and the applicant could have obtained damages from the hospital. That is apparent from the findings clearly set out in the expert reports (see paragraph 16 above) in 1992 – before the action had become statute-barred – concerning the poor organisation of the hospital department in question and the serious negligence on the doctor ’ s part, which nonetheless, in the Court of Appeal ’ s opinion (see paragraph 21 above), did not reflect a total disregard for the most fundamental principles and duties of his profession such as to render him personally liable. 92. The applicant ’ s submission concerning the fact that the action for damages in the administrative courts was statute-barred cannot succeed in the Court ’ s view. In this connection, it refers to its case-law to the effect that the “right to a court”, of which the right of access is one aspect, is not absolute; it is subject to limitations permitted by implication, in particular where the conditions of admissibility of an appeal are concerned, since by its very nature it calls for regulation by the State, which enjoys a certain margin of appreciation in this regard (see, among other authorities, Brualla Gómez de la Torre v. Spain, judgment of 19 December 1997, Reports 1997 ‑ VIII, p. 2955, § 33). These legitimate restrictions include the imposition of statutory limitation periods, which, as the Court has held in personal injury cases, “serve several important purposes, namely to ensure legal certainty and finality, protect potential defendants from stale claims which might be difficult to counter and prevent the injustice which might arise if courts were required to decide upon events which took place in the distant past on the basis of evidence which might have become unreliable and incomplete because of the passage of time” (see Stubbings and Others v. the United Kingdom, judgment of 22 October 1996, Reports 1996-IV, pp. 1502-03, § 51). 93. In the instant case, a four-year limitation period does not in itself seem unduly short, particularly in view of the seriousness of the damage suffered by the applicant and her immediate desire to prosecute the doctor. However, the evidence indicates that the applicant deliberately turned to the criminal courts, apparently without ever being informed of the possibility of applying to the administrative courts. Admittedly, the French parliament recently extended the time allowed to ten years under the Law of 4 March 2002 (see paragraph 28 above). It did so with a view to standardising limitation periods for actions for damages in all courts, whether administrative or ordinary. This enables the general emergence of a system increasingly favourable to victims of medical negligence to be taken into account, an area in which the administrative courts appear capable of striking an appropriate balance between consideration of the damage to be redressed and the excessive “judicialisation” of the responsibilities of the medical profession. The Court does not consider, however, that these new rules can be said to imply that the previous period of four years was too short. 94. In conclusion, the Court considers that in the circumstances of the case an action for damages in the administrative courts could be regarded as an effective remedy that was available to the applicant. Such an action, which she failed to use, would have enabled her to prove the medical negligence she alleged and to obtain full redress for the damage resulting from the doctor ’ s negligence, and there was therefore no need to institute criminal proceedings in the instant case. 95. The Court accordingly concludes that, even assuming that Article 2 was applicable in the instant case (see paragraph 85 above), there has been no violation of Article 2 of the Convention. | The Court held that there had been no violation of Article 2 (right to life) of the Convention. It found that it was not currently desirable or possible to rule on whether an unborn child was a person under Article 2 of the Convention. And, there was no need for a criminal law remedy; remedies already existed allowing the applicant to prove medical negligence and to seek compensation. |
262 | (Suspected) terrorists | II. RELEVANT DOMESTIC LAW AND PRACTICE 80. 1. Code of Criminal Procedure Article D. 270 “ Save in the circumstances set out in Articles D. 136 to D. 147, prison staff must at all times be able to verify a prisoner ’ s presence. At night it must be possible to light cells when necessary. Cells should be entered only for good reason or in the event of imminent danger. In all cases, intervention must be by at least two staff members and an officer, if one is on night duty. ” Article D. 272 “ Rounds shall be made after lights out and during the night at set times to be changed daily by the senior custody officer, under the authority of the prison governor. ” Article D. 283-1 [ The words in italic were added or amended by the decrees of 1996 and 1998: Decree no. 96-287 of 2 April 1996, Article 4, Official Gazette of 5 April 1996, and Decree no. 98-1099 of 8 December 1998, Articles 65 and 190, Official Gazette of 9 December 1998. ] “ Any prisoner in a communal establishment or unit may be placed in solitary confinement at his or her request or as a precautionary or security measure. Orders for prisoners to be placed in solitary confinement shall be made by the prison governor, who shall inform the regional director and the judge responsible for the execution of sentences without delay. The prison governor shall also report to the Sentence Enforcement Board at the first meeting following the prisoner ’ s confinement or objection to a request for his or her confinement. The prisoner may, either personally or through counsel, send any observations he or she has on the decision to the judge responsible for the execution of sentences. The medical team shall be given a list of the prisoners in solitary confinement every day. Prisoners in solitary confinement will receive a medical examination in accordance with Article D. 381. If the doctor considers it appropriate in view of the prisoner ’ s health, he or she shall give an opinion on whether solitary confinement should cease. Solitary confinement may only exceed three months if a new report has been made to the Sentence Enforcement Board and the regional director so decides. Solitary confinement may only exceed one year from the date of the initial decision if the Minister of Justice so decides on the basis of a reasoned report by the regional director after the regional director has obtained the opinions of the Sentence Enforcement Board and the prison doctor. The prison governor shall keep a solitary-confinement register for consultation by the administrative and judicial authorities on supervisory visits and inspections. ” Article D. 283-2 [ Decree no. 96-287 of 2 April 1996, Article 4, Official Gazette of 5 April 1996, and Decree no. 98-1099 of 8 December 1998, Article 190, Official Gazette of 9 December 1998 ] “ Solitary confinement shall not constitute a disciplinary measure. Prisoners in solitary confinement shall be subject to the ordinary prison regime. ” 81. 2. Circulars Extracts from the Circular of 8 December 1998 implementing the decree amending the Code of Criminal Procedure “ 4. Solitary confinement as a precautionary or security measure Orders for solitary confinement as a precautionary or security measure are made by the prison governor at the prisoner ’ s request or on the governor ’ s own initiative. Since the governor has sole power to order solitary confinement, he or she will need to take particular care in setting out the reasons. 4.1. The need to state reasons Since the Conseil d ’ Etat ’ s Marie judgment of 17 February 1995, the administrative courts have assumed jurisdiction to review the lawfulness of disciplinary decisions ‘ giving cause for complaint ’. Judicial review has not yet been extended to decisions to place a prisoner in solitary confinement, which continue to be regarded in the most recent decisions as ‘ internal administrative measures ’ that are not amenable to review. The courts consider on the basis of Article D. 283-2 that ‘ solitary confinement does not make conditions of detention worse and is not liable to affect the legal position of the person so held ’ ( Conseil d ’ Etat, 28 February 1996, Fauqueux, and Conseil d ’ Etat, 22 September 1997, Trébutien ). 4.2. Nature of the reasons It is not sufficient simply to repeat the succinct ‘ as a precautionary or security measure ’ formula used in Article D. 283-1. ... Orders for solitary confinement as a precautionary or security measure must be based on genuine grounds and objective concordant evidence of a risk of the prisoner causing or being exposed to serious harm. The reasons must state whether the measure has been taken to avoid the risk of an escape, violence or coercion, concerted action liable to disrupt the prison community, connivance or conspiracy, or to protect the life or physical integrity of individual prisoners or of the person in solitary confinement. 4.3. Invalid reasons An order for solitary confinement cannot be made solely for the following reasons. 4.3.1. Nature of the offence The seriousness of the offence for which the person concerned is being held and the nature of the offence of which he or she is accused cannot by themselves justify solitary confinement. ... THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 86. The applicant complained, firstly, that his prolonged solitary confinement from 15 August 1994 to 17 October 2002 and from 18 March 2004 to 6 January 2006 constituted inhuman and degrading treatment and had therefore violated Article 3 of the Convention. Article 3 provides: “ No one shall be subjected to torture or to inhuman or degrading treatment or punishment. ” A. The Chamber judgment 87. The Chamber held that there had been no violation of Article 3 of the Convention. It found that the applicant had not been kept in complete sensory isolation or total social isolation. Having regard in particular to the applicant ’ s character and the exceptional danger he posed, it further found that the conditions in which he was being held and the length of time he had spent in solitary confinement had not reached the minimum level of severity necessary to constitute inhuman treatment within the meaning of Article 3 of the Convention. B. The parties ’ submissions 1. The applicant 88. The applicant contested the conclusion that had been reached by the Chamber. He submitted that the Chamber had been wrong to accept, without any prima facie evidence, the Government ’ s claim that there was a danger he would engage in proselytism or plan an escape. In his submission, it could not be maintained that solitary confinement had made such conduct impossible, just as it was impossible to draw any conclusion from the period in which he had ceased to be in solitary confinement. 89. He also considered that the Chamber should not have referred to his “ character ” or “ exceptional dangerousness ” in the absence of any concrete evidence from the Government to back up the “ abstract ” profile that had systematically been relied on in all the decisions to keep him in solitary confinement. Likewise, the reference to a possible ascendancy over the other prisoners showed that the reasons that had been given for keeping him in solitary confinement were fictitious. 90. In his submission, the systematic renewal of his solitary confinement had resulted in its continuation for a period that did not conform with the CPT ’ s recommendations or the undertakings that had been given by the Government after the CPT ’ s visit in 1996. Furthermore, he had never been convicted of a terrorist offence and was entitled to the presumption of innocence on that point, in accordance with Article 6 § 2 of the Convention. 91. As regards the conditions in which he was detained, he said that the strict ban on his communicating with other people, including prison warders, had resulted in his total social isolation. He had been refused permission to have French lessons, even on an individual basis, and none of his family had been officially informed of his imprisonment or his whereabouts. He alleged that the investigating file showed that it was the French authorities ’ intention to arrest any member of his family who travelled to France. As to the visits from the clergyman, the applicant said that initially they had been allowed only occasionally; subsequently, however, he had been permitted visits approximately once a month. He pointed out that visits by diplomatic representatives were a legal entitlement and that the Venezuelan authorities had not been informed of his situation until a late stage. With regard to sanitary conditions, the applicant said that he took showers at the same intervals as other prisoners and had not requested a special regime. He had been forced to stop going to the cardio -training room after being provoked and assaulted, although he did not identify those responsible. 92. The visits he had received from his lawyers were not social visits, but an indefeasible means of exercising his defence rights. He said that the Chamber had been wrong to accept that the visits had reduced his isolation and added that there had been numerous instances of delay in his lawyers ’ being granted permission to visit him. Arguing that the Government ’ s production of the list of visits of just one of his lawyers was misrepresentative, he furnished a list of all 58 lawyers and of the more than 860 visits they had made between 16 August 1994 and 29 April 2002. The visits from his lawyers had only been made with any frequency during his stay in La Santé Prison in Paris. On his transfer to the other prisons, such visits had become far less frequent because of the distance involved. Since October 2002, he had been receiving visits on a weekly basis. 93. The applicant further pointed out that, although the circular of 8 December 1998 to which the Chamber had referred in its judgment provided that a doctor ’ s opinion should be obtained prior to each extension, the Government had not produced evidence to show that the necessary medical examination had taken place. 94. He added that, in saying that the conditions in which he was detained were dictated by the layout of La Santé, the Government had sought to suggest that it would have been more appropriate to hold him in a maximum security prison, although these were all at some distance from Paris. 95. The applicant added that his excellent mental and physical health was due to his strength of character and the efforts he had made to keep his mind active and to retain mental balance. The adverse physical effects had, however, taken the form of broken sleep cycles as a result of his being noisily awoken by warders at hourly intervals from midnight to 6 a.m. throughout his stay in solitary confinement. He had also suffered from recurring respiratory and skin allergies as a result of the prison conditions. 96. His lawyer pointed out that it had been discovered in January 2004 that he was suffering from diabetes, a condition he had not previously had. She also said that he had lost 20 kilograms between March and December 2004. 2. The Government 97. The Government invited the Grand Chamber to endorse the Chamber ’ s finding that keeping the applicant in solitary confinement did not contravene Article 3. 98. Firstly, the applicant ’ s prison regime was wholly exceptional and dictated by the fact that, as a unique figure known internationally for acts of terrorism, there was a danger he would cause serious disruption within the prison population by engaging in proselytism, or even planning an escape. 99. In any event, the regime for prisoners in solitary confinement at La Santé Prison was strictly aligned to the rules applicable to ordinary prisoners, the only restrictions being those entailed by the fact that prisoners in the segregation unit had no possibility of meeting one another or of being in the same room together. 100. Referring to the facts as established (see paragraphs 11 and 12 above), the Government submitted that the physical conditions of the applicant ’ s detention complied with Article 3 of the Convention. 101. With regard to visits, the Government explained that the applicant had been a remand prisoner until 30 January 2000 and that by virtue of Article D. 64 of the Code of Criminal Procedure visits could only be authorised by the judge in charge of the investigation. Once the applicant ’ s conviction became final on 30 January 2000 the power to authorise visits had been transferred to the prison governor. 102. The applicant ’ s family, who did not reside in France, had never made contact. Furthermore, the applicant was allowed to see a priest – subject to one being available – whenever he wished, and received regular visits from consular authorities, in particular the Venezuelan Ambassador ’ s representative. 103. The Government added that the applicant had had very frequent meetings with his lawyer, who had become his fiancée and later his wife under Islamic law, as she had visited him more than 6 4 0 times in four years and ten months (see paragraph 14 above). They added that visits from lawyers took place in special conference rooms without any barrier between the prisoner and his or her lawyer. Lastly, although the applicant had been refused access to a communal class to learn French, he had been offered individual lessons, which he had declined. 104. The Government pointed out that by virtue of the Law of 18 January 1994 responsibility for the organisation and provision of health care for prisoners had been transferred to the public health service and social welfare protection had been made available to all prisoners. 105. In addition to any consultations requested by the prisoner or prison staff, medical care included mandatory check-ups (for new arrivals in a prison or for prisoners in the disciplinary unit). Prisoners in solitary confinement were systematically seen by a doctor twice a week. Relations between prisoners and doctors were covered by medical confidentiality. Accordingly, the medical information the Government had supplied was non-confidential information which the medical team responsible for the applicant ’ s health had communicated to the French authorities. 106. From the strictly somatic standpoint, the applicant had attended the Outpatient Consultation and Treatment Unit ( “the OCTU ” ) for specialist dental and ophthalmologic care. He had never complained of impaired eyesight as a result of his solitary confinement. From the psychiatric standpoint, the medical team had at no stage during the eight years the applicant had been held in solitary confinement mentioned any disorder, while the applicant had said that he was perfectly sane. 107. It was clear from the medical certificates that were issued regularly on each renewal of the solitary confinement that the doctors had at no stage found any contraindication to the measure. 108. The vast majority of the certificates drawn up between August 1994 and July 2000 had expressly stated that the applicant ’ s health was compatible with his continued confinement. In many instances, the certificates had been signed by different doctors who would necessarily have examined the applicant with a fresh pair of eyes. Lastly, the certificate of 13 July 2000 had even added that the applicant “ is in quite astounding physical and mental condition after six years in solitary confinement ”. 109. With regard to the period from July 2000 to September 2002, the Government did not deny that some of the certificates had referred to the problem of the possible physical and mental consequences of prolonged solitary confinement. However, the certificates did not state that the applicant had suffered any definite, actual harm as a result of his solitary confinement. The certificate of 20 September 2001 said that the applicant ’ s physical and mental condition was entirely reasonable after seven years in solitary confinement and in a later certificate dated 29 July 2002 the same practitioner stated that the applicant was in excellent somatic health. He also said that the applicant had refused any psychological counselling from the Regional Medical and Psychological Service (“the RMPS”), which in the Government ’ s submission showed that he had not felt the need for any counselling. 110. The Government further denied that the applicant had been woken at hourly intervals throughout the night, as he alleged. They referred to Articles D. 270 and D. 272 of the Code of Criminal Procedure, which governed prison rounds at night, and said that the applicant had been subjected to the same surveillance and checks as other prisoners in solitary confinement, as no special instructions had been issued in his case. In particular, when performing their night rounds, warders were not authorised to open cells unless there was good reason or imminent danger. The applicant could not, therefore, assert that he had been noisily woken at hourly intervals throughout the night on a regular basis. At most, it was possible that warders had shone a light into his cell briefly to check that he was there and what he was doing. Further, the applicant had never complained to a domestic authority about night-time surveillance, whereas he had complained on a number of occasions during his spell in solitary confinement about the conditions in which he was being held. 111. The Government concluded from all these factors that the applicant ’ s health did not appear to have been affected by solitary confinement and that the conditions in which the applicant was being held had not attained the minimum level of severity required to fall foul of Article 3 of the Convention, despite the CPT ’ s finding that the general conditions in which prisoners in solitary confinement were held in France were not entirely satisfactory. C. The Court ’ s assessment 112. The Court must first determine the period of detention to be taken into consideration when examining the complaint under Article 3. It points out that the “ case ” referred to the Grand Chamber embraces in principle all aspects of the application previously examined by the Chamber in its judgment, the scope of its jurisdiction in the “ case ” being limited only by the Chamber ’ s decision on admissibility (see, mutatis mutandis, K. and T. v. Finland [GC], no. 25702/94, §§ 139- 41, ECHR 2001-VII; Kingsley v. the United Kingdom [GC], no. 35605/97, § 34, ECHR 2002-IV; Göç v. Turkey [GC], no. 36590/97, §§ 35-37, ECHR 2002-V; Refah Partisi (the Welfare Party) and Others v. Turkey [GC], nos. 41340/98, 41342/98, 41343/98 and 41344/98, ECHR 2003-II; and Öcalan v. Turkey [ GC], no. 46221/99, ECHR 2005 ‑ IV ). More specifically, within the compass thus delimited by the decision on the admissibility of the decision, the Court may deal with any issue of fact or law that arises during the proceedings before it (see, among many other authorities, Guerra and Others v. Italy, 19 February 1998, § 44, Reports of Judgments and Decisions 1998 ‑ I; Chahal v. the United Kingdom, 15 November 1996, § 86, Reports 1996 ‑ V; and Ahmed v. Austria, 17 December 1996, § 43, Reports 1996 ‑ VI). 113. In the present case, the applicant ’ s solitary confinement was interrupted between 17 October 2002 and 18 March 2004 when he was detained in Saint-Maur Prison, near Châteauroux, under normal prison conditions. He was then held in solitary confinement successively in Fresnes, Fleury-Mérogis and La Santé. Since 6 January 2006 he has been in Clairvaux Prison, where normal conditions have been restored. The parties have not provided any information on the conditions in which the applicant was kept in solitary confinement in the various prisons to which he was transferred during the period from March 2004 to January 2006. Nor has the applicant ever challenged his solitary confinement on the merits since that became possible on 30 July 2003 (see paragraph 82 above). In particular, he did not make use of any remedy on the merits during this latter period ( March 2004 to January 2006 ) although he could have done so from the moment he returned to solitary confinement. The Court will return to this point when it examines the complaint under Article 13. 114. In these specific circumstances, the Grand Chamber, like the Chamber, considers it appropriate to restrict its examination to the conditions in which the applicant was held from 15 August 1994 to 17 October 2002 ( contrast Öcalan, cited above, § 190). 1. General principles 115. Article 3 of the Convention enshrines one of the most fundamental values of democratic societies. Even in the most difficult of circumstances, such as the fight against terrorism or crime, the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment. 116. In the modern world, States face very real difficulties in protecting their populations from terrorist violence. However, unlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4, Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15 § 2 even in the event of a public emergency threatening the life of the nation (see Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000-IV; Selmouni v. France [GC], no. 25803/94, § 95, ECHR 1999- V; and Assenov and Others v. Bulgaria, 28 October 1998, § 93, Reports 1998-VIII). The Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the conduct of the person concerned (see Chahal, cited above, § 79). The nature of the offence allegedly committed by the applicant is therefore irrelevant for the purposes of Article 3 ( see Indelicato v. Italy, no. 31143/96, § 30, 18 October 2001 ). 117. Ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim (see, for instance, Ireland v. the United Kingdom, 18 January 1978, § 162, Series A no. 25). In assessing the evidence on which to base the decision whether there has been a violation of Article 3, the Court adopts the standard of proof “ beyond reasonable doubt ”. However, such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. 118. The Court has considered treatment to be “ inhuman ” because, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical or mental suffering. It has deemed treatment to be “ degrading ” because it was such as to arouse in the victims feelings of fear, anguish and inferiority capable of humiliating and debasing them (see, among other authorities, Kudła v. Poland [GC], no. 30210/96, § 92, ECHR 2000 ‑ XI). In considering whether a punishment or treatment is “ degrading ” within the meaning of Article 3, the Court will have regard to whether its object is to humiliate and debase the person concerned and whether, as far as the consequences are concerned, it adversely affected his or her personality in a manner incompatible with Article 3 (see, among other authorities, Raninen v. Finland, 16 December 1997, § 55, Reports 1997-VIII). However, the absence of any such purpose cannot conclusively rule out a finding of a violation of Article 3 (see, among other authorities, Peers v. Greece, no. 28524/95, § 74, ECHR 2001 ‑ III). 119. In order for a punishment or treatment associated with it to be “ inhuman ” or “ degrading ”, the suffering or humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment (see, among other authorities, V. v. the United Kingdom [GC], no. 24888/94, § 71, ECHR 1999-IX; Indelicato, cited above, § 32; Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, § 428, ECHR 2004 ‑ VII; and Lorsé and Others v. the Netherlands, no. 52750/99, § 62, 4 February 2003). In that connection, the Court notes that measures depriving a person of his liberty may often involve such an element. Nevertheless, Article 3 requires the State to ensure that prisoners are detained in conditions that are compatible with respect for their human dignity, that the manner and method of the execution of the measure do not subject them to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, their health and well-being are adequately secured (see Kudła, cited above, § § 92- 94, and Kalashnikov v. Russia, no. 47095/99, § 95, ECHR 200 2 - VI ). The Court would add that the measures taken must also be necessary to attain the legitimate aim pursued. Further, when assessing conditions of detention, account has to be taken of the cumulative effects of those conditions, as well as the specific allegations made by the applicant ( see Dougoz v. Greece, no. 40907/98, § 46, ECHR 2001-II). 120. The applicant ’ s allegations in the present case specifically concern the length of time spent in solitary confinement. The European Commission of Human Rights expressed the following opinion on this particular aspect of detention in Ensslin, Baader and Raspe v. Germany (nos. 7572/76, 758 6/76 and 7587/76, Commission decision of 8 July 1978, Decisions and Reports ( DR ) 14, p. 64) : “ The Commission has already been confronted with a number of such cases of isolation (cf. Decisions on Applications No. 1392/62 v. FRG, Coll. 17, p. 1; No. 5006/71 v. UK, Coll. 39, p. 91; No. 2749/66 v. UK, Yearbook X, p. 382; No. 6038/73 v. FRG, Coll. 44, p. 155; No. 4448/70 “ Second Greek Case ” Coll. 34, p. 70). It has stated that prolonged solitary confinement is undesirable, especially where the person is detained on remand (cf. Decision on Application No. 6038/73 v. FRG, Coll. 44, p. 151). However, in assessing whether such a measure may fall within the ambit of Article 3 of the Convention in a given case, regard must be had to the particular conditions, the stringency of the measure, its duration, the objective pursued and its effects on the person concerned. Complete sensory isolation coupled with complete social isolation can no doubt ultimately destroy the personality; thus it constitutes a form of inhuman treatment which cannot be justified by the requirements of security, the prohibition on torture and inhuman treatment contained in Article 3 being absolute in character (cf. the Report of the Commission on Application No. 5310/71, Ireland v. the United Kingdom; Opinion, p. 379). ” 121. In Kröcher and Möller v. Switzerland (no. 8463/78, Commission ’ s report of 16 December 1982, DR 34, p. 24), the Commission also considered the length of the solitary confinement, which lasted for approximately ten and a half months. It observed: “ With regard to the duration of their detention on remand and detention under security conditions, the Commission finds that each of these periods was fairly brief considering the circumstances of the case. As to the special isolation measures to which the applicants were subjected, neither the duration nor the severity of these exceeded the legitimate requirements of security. In any case, the applicants ’ exclusion from the prison community was not prolonged excessively. ” 122. The Commission reiterated in a later case that prolonged solitary confinement was undesirable ( see Natoli v. Italy, no. 26161/95, Commission decision of 18 May 1998, unreported ). 123. Similarly, the Court has for its part established the circumstances in which the solitary confinement of even a dangerous prisoner will constitute inhuman or degrading treatment (or even torture in certain instances). It has thus observed: “ ... complete sensory isolation, coupled with total social isolation can destroy the personality and constitutes a form of inhuman treatment which cannot be justified by the requirements of security or any other reason. On the other hand, the prohibition of contacts with other prisoners for security, disciplinary or protective reasons does not in itself amount to inhuman treatment or punishment. ” ( see Messina v. Italy (no. 2) (dec.), no. 25498/94, ECHR 1999-V; Öcalan, cited above, § 191; and Ilaşcu and Others, cited above, § 432 ) 124. Similarly, in Ilaşcu and Others, the Court stated: “ As regards the applicant ’ s conditions of detention while on death row, the Court notes that Mr Ilaşcu was detained for eight years, from 1993 until his release in May 2001, in very strict isolation: he had no contact with other prisoners, no news from the outside – since he was not permitted to send or receive mail – and no right to contact his lawyer or receive regular visits from his family. His cell was unheated, even in severe winter conditions, and had no natural light source or ventilation. The evidence shows that Mr Ilaşcu was also deprived of food as a punishment and that in any event, given the restrictions on receiving parcels, even the food he received from outside was often unfit for consumption. The applicant could take showers only very rarely, often having to wait several months between one and the next. On this subject the Court refers to the conclusions in the report produced by the CPT following its visit to Transdniestria in 2000 ..., in which it described isolation for so many years as indefensible. The applicant ’ s conditions of detention had deleterious effects on his health, which deteriorated in the course of the many years he spent in prison. Thus, he did not receive proper care, having been deprived of regular medical examinations and treatment ... and dietetically appropriate meals. In addition, owing to the restrictions on receiving parcels, he could not be sent medicines and food to improve his health. ” ( see Ilaşcu and Others, cited above, § 43 8; contrast Rohde v. Denmark, no. 69332/01, § 97, 21 July 2005 ) 2. Application of the principles to the present case 125. As to the present case, the Court accepts that the applicant ’ s detention posed serious problems for the French authorities. The applicant, who was implicated in various terrorist attacks that took place in the 1970s, was at the time considered one of the world ’ s most dangerous terrorists. It is to be noted on this point that on the many occasions he has since had to state his views (in his book, newspaper articles and interviews) he has never disowned or expressed remorse for his acts. Accordingly, it is understandable that the authorities should have considered it necessary to combine his detention with extraordinary security measures. (a) Conditions in which the applicant was held (i) Physical conditions 126. The physical conditions in which the applicant was held must be taken into account when examining the nature and duration of his solitary confinement. 127. The Court notes that the cell which the applicant occupied when in solitary confinement at La Santé Prison was large enough to accommodate a prisoner, was furnished with a bed, table and chair, and had sanitary facilities and a window giving natural light. 128. In addition, the applicant had books, newspapers, a reading light and a television set at his disposal. He had access to the exercise yard two hours a day and to a cardio -training room one hour a day. 129. These conditions of detention contrast with those that were examined by the Court in the case of Mathew, in which the Court found a violation of Article 3. The applicant in that case had been detained in conditions similar to solitary confinement for more than two years in a cell on the last ( second ) floor of the prison. For seven or eight months, a large hole in the ceiling allowed rain to enter. In addition, the fact that the cell was directly under the roof exposed the applicant to the tropical heat. Lastly, since he had difficulty going up or down stairs, he was frequently prevented from going to the exercise yard or even outside ( see Mathew v. the Netherlands, no. 24919/03, ECHR 2005 -IX ). 130. In the present case, the Court finds that the physical conditions in which the applicant was detained were proper and complied with the European Prison Rules adopted by the Committee of Ministers on 11 January 2006. These conditions were also considered to be “ globally acceptable ” by the CPT (see its report on the visit from 14 to 26 May 2000, cited at paragraph 83 above). Accordingly, no violation of Article 3 can be found on this account. ( ii ) Nature of the applicant ’ s solitary confinement 131. In the present case, the applicant received twice- weekly visits from a doctor, a once - monthly visit from a priest and very frequent visits from one or more of his 58 lawyers, including more than 640 visits over a period of four years and ten months from his representative in the proceedings before the Court, now his wife under Islamic law, and more than 860 visits in seven years and eight months from his other lawyers (see paragraphs 14 and 92 above). Furthermore, the applicant ’ s family, who are not subject to any restrictions on visiting rights, have never requested permission to visit and the only two requests which have been refused came from journalists. Nor has the applicant provided any evidence in support of his allegations that members of his family risk arrest if they set foot in France. As to the allegation that the family has never been officially informed of the applicant ’ s imprisonment or place of detention, the Court notes that it is not certain that the French authorities had the names and addresses of his family members and it considers that the consular authorities, the applicant himself and his lawyers were in any event perfectly capable of informing them themselves. 132. The Court notes that the conditions of solitary confinement in which the applicant was held were not as harsh as those it has had occasion to examine in connection with other applications, such as in the cases of Messina (no. 2) and Argenti, in which the applicants, who had been in solitary confinement for four and a half years and twelve years respectively, were subject to a ban on communicating with third parties, a restriction on receiving visits – behind a glass screen – from members of their families (with a maximum of a one-hour visit per month), and bans on receiving or sending money over a certain amount, on receiving parcels from outside containing anything other than linen, on buying groceries that required cooking and on spending more than two hours outdoors (see Messina (no. 2), cited above, and Argenti v. Italy, no. 56317/00, § 7, 10 November 2005). 133. Likewise, in the case of Öcalan, in which the isolation was stricter, the Court noted that the applicant, who had been the sole inmate of an island prison for six years when the judgment was adopted, had no access to a television and that his lawyers, who were only allowed to visit him once a week, had often been prevented from doing so by adverse weather conditions that meant that the boat was unable to make the crossing. It found that in the circumstances of the case the conditions of detention were not incompatible with Article 3 of the Convention ( see Öcalan, cited above, in particular §§ 190- 96 ). 134. The Court considers that the applicant ’ s conditions are closer to those it examined in Rohde in which it held that there had been no violation of Article 3 of the Convention. The applicant in that case was held in solitary confinement for eleven and a half months. He had access to television and newspapers, was excluded from activities with other prisoners, had language lessons, was able to meet the prison chaplain and received a visit once a week from his lawyer and some members of his family ( Rohde, cited above, § 97). 135. The Court accordingly concludes that the applicant cannot be considered to have been in complete sensory isolation or total social isolation. His isolation was partial and relative. (b) Duration of the solitary confinement 136. It is true that the applicant ’ s situation was far removed from that of the applicants in the aforementioned case of Ilaşcu and Others and that he was not subjected to complete sensory isolation or to total social isolation, but to relative social isolation (see also on this point, Messina (no. 2), cited above). However, the Court cannot but note with concern that in the present case he was held in solitary confinement from 15 August 1994 to 17 October 2002, a period of eight years and two months. In view of the length of that period, a rigorous examination is called for by the Court to determine whether it was justified, whether the measures taken were necessary and proportionate compared to the available alternatives, what safeguards were afforded the applicant and what measures were taken by the authorities to ensure that the applicant ’ s physical and mental condition was compatible with his continued solitary confinement. 137. Reasons for keeping a prisoner in solitary confinement are required by the circular of 8 December 1998 which refers to “ genuine grounds ” and “ objective concordant evidence of a risk of the prisoner causing ... serious harm ”. In the instant case, the reasons given for renewing the measure every three months were his dangerousness, the need to preserve order and security in the prison and the risk of his escaping from a prison in which general security measures were less extensive than in a high- security prison. The circular also provides that solitary confinement should only continue for more than a year in exceptional circumstances. However, regrettably there is no upper limit on the duration of solitary confinement. 138. It is true that a prisoner ’ s segregation from the prison community does not in itself amount to inhuman treatment. In many States Parties to the Convention more stringent security measures exist for dangerous prisoners. These arrangements, which are intended to prevent the risk of escape, attack or disturbance of the prison community, are based on separation of the prison community together with tighter controls (see Kröcher and Möller, cited above ). 139. However, in order to avoid any risk of arbitrariness, substantive reasons must be given when a protracted period of solitary confinement is extended. The decision should thus make it possible to establish that the authorities have carried out a reassessment that takes into account any changes in the prisoner ’ s circumstances, situation or behaviour. The statement of reasons will need to be increasingly detailed and compelling the more time goes by. Furthermore, such measures, which are a form of “ imprisonment within the prison ”, should be resorted to only exceptionally and after every precaution has been taken, as specified in paragraph 53.1 of the Prison Rules adopted by the Committee of Ministers on 11 January 2006. A system of regular monitoring of the prisoner ’ s physical and mental condition should also be set up in order to ensure its compatibility with continued solitary confinement. 140. The Court notes that the applicant has received very regular visits from doctors, in accordance with the instructions set out in the circular of 8 December 1998. 141. While it is true that, after 13 July 2000 the doctors no longer sanctioned his solitary confinement, none of the medical certificates issued on the renewals of the applicant ’ s solitary confinement up to October 2002 expressly stated that his physical or mental health had been affected, or expressly requested a psychiatric report. 142. In addition, on 29 July 2002 the doctor in charge of the OCTU at La Santé Prison noted in his report on the treatment the applicant had been receiving that the applicant had refused “ any psychological help from the RMPS”. 143. Likewise, in his findings following an examination of the applicant on 17 October 2002 on his arrival at Saint-Maur Prison, the Indre Health Inspector said that, from the psychiatric standpoint, the applicant had been seen by a psychiatrist from the RMPS as part of the standard induction procedure. No follow-up treatment had been prescribed at the time and the applicant had not asked to see a psychiatrist since. The applicant had been examined on 26 August 2003, but no follow-up to that appointment had been recommended. 144. The Court notes in this connection that the applicant refused the psychological counselling he was offered (see paragraph 70 above) and has not alleged that the treatment he received for his diabetes was inappropriate. Nor has he shown that his prolonged solitary confinement has led to any deterioration in his health, whether physical or mental. Furthermore, the applicant himself stated in his observations in reply that he was in excellent mental and physical health (see paragraph 95 above). 145. The Court nevertheless wishes to emphasise that solitary confinement, even in cases entailing only relative isolation, cannot be imposed on a prisoner indefinitely. Moreover, it is essential that the prisoner should be able to have an independent judicial authority review the merits of and reasons for a prolonged measure of solitary confinement. In the instant case, that only became possible in July 2003. The Court will return to this point when it examines the complaint made under Article 13. It also refers in this connection to the conclusions of the CPT and of the Human Rights Commissioner of the Council of Europe (see paragraphs 83 and 85 above). 146. It would also be desirable for alternative solutions to solitary confinement to be sought for persons considered dangerous and for whom detention in an ordinary prison under the ordinary regime is considered inappropriate. 147. The Court notes with interest on this point that the authorities twice transferred the applicant to prisons in which he was held in normal conditions. It emerges from what the Government have said that it was as a result of an interview which the applicant gave over the telephone to a television programme in which he refused among other things to express any remorse to the victims of his crimes (he put the number of dead at between 1,500 and 2,000), that he was returned to solitary confinement in a different prison. The authorities do not, therefore, appear to have sought to humiliate or debase him by systematically prolonging his solitary confinement, but to have been looking for a solution adapted to his character and the danger he posed. 148. The Court notes that when the applicant was being held in normal conditions in Saint-Maur Prison, his lawyer sent a letter to the Registry of the Court in which she complained of “ dangerous company, particularly in the form of drug addicts, alcoholics, and sexual offenders who are unable to control their behaviour ” and alleged a violation of human rights. Furthermore, the applicant complained during that period of being too far away from Paris, which, he said, made visits from his lawyers more difficult, less frequent and more costly and inevitably caused another form of isolation. 149. Lastly, the Government ’ s concerns that the applicant might use communications either inside the prison or on the outside to re-establish contact with members of his terrorist cell, to seek to proselytise other prisoners or to prepare an escape also have to be taken into account. These concerns cannot be said to have been without basis or unreasonable (see on this point, Messina (no. 2), in which the Court noted, before declaring the complaints about the conditions of detention inadmissible, “ the applicant was placed under the special regime because of the very serious offences of which he [was] convicted ”, a statement that is equally applicable to the applicant in the present case; see also Gallico v. Italy, no. 53723/00, 28 June 2005 ). 150. The Court shares the CPT ’ s concerns about the possible long-term effects of the applicant ’ s isolation. It nevertheless considers that, having regard to the physical conditions of the applicant ’ s detention, the fact that his isolation is “ relative ”, the authorities ’ willingness to hold him under the ordinary regime, his character and the danger he poses, the conditions in which the applicant was being held during the period under consideration have not reached the minimum level of severity necessary to constitute inhuman treatment within the meaning of Article 3 of the Convention. Despite the very special circumstances obtaining in the present case, the Court is concerned by the particularly lengthy period the applicant has spent in solitary confinement and has duly noted that since 5 January 2006 he has been held under the ordinary prison regime (see paragraph 76 above), a situation which, in the Court ’ s view, should not in principle be changed in the future. Overall, having regard to all the foregoing considerations, it finds that there has been no violation of Article 3 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 151. The applicant complained that he had not had a remedy available to challenge his continued solitary confinement. He relied on Article 13, which provides: “ Everyone whose rights and freedoms as set forth in th[e] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity. ” A. The Chamber judgment 152. The Chamber found a violation of Article 13 of the Convention. It noted in particular that prior to the Conseil d ’ Etat ’ s judgment of 30 July 2003, prisoners in solitary confinement did not have any remedy available to challenge the original measure or any renewal of it. B. The parties ’ submissions 153. The applicant invited the Grand Chamber to endorse the Chamber ’ s finding of a violation. He also alleged that the authorities had not followed the procedure laid down by Article D. 283-1 of the Code of Criminal Procedure for prolonging solitary confinement. He added that on a number of occasions he had been forced to complain because he not been given the requisite medical check-up before the decision to prolong his solitary confinement was taken. Lastly, he said that the proposals and decisions to prolong the measure were almost systematically based on the nature of the offences for which he was in prison and that the authorities had been unable to provide the genuine grounds or evidence of objective and concordant incidents required by the applicable provisions. 154. The Government noted that in a judgment of 30 July 2003 the Conseil d ’ Etat had ruled that a decision to place a prisoner in solitary confinement could be the subject of judicial review owing to the effect such decisions had on the conditions of detention. That judgment was part of a continuing process which had seen the scope of internal administrative measures increasingly circumscribed. 155. They added that the applicant had to date challenged only one order renewing his solitary confinement, that being the decision of 17 February 2006. Even then he had only contested the formal validity of the measure, not the underlying reasons. Consequently, he had never sought to challenge the measure in the administrative courts on the merits by arguing that it violated Article 3 of the Convention. The Paris Administrative Court, which gave its judgment on 15 December 2005, had set the decision aside on the ground that the regional director of the Prison Service had omitted to obtain the opinion of the Sentence Enforcement Board, as he was required to do by Article D. 283 ‑ 1 of the Code of Criminal Procedure, before lodging his report with the Minister of Justice. 156. The Government said in conclusion that it left it to the Court ’ s discretion to decide whether or not an effective remedy had existed prior to the Conseil d ’ Etat ’ s decision of 30 July 2003. C. The Court ’ s assessment 157. As the Court has held on many occasions, Article 13 of the Convention guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they may happen to be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of an “ arguable complaint ” under the Convention and to grant appropriate relief (see, among many other authorities, Kudła, cited above, § 157). 158. The scope of the Contracting States ’ obligations under Article 13 varies depending on the nature of the applicant ’ s complaint. However, the remedy must be “ effective ” in practice as well as in law (see, among other authorities, İlhan v. Turkey [GC], no. 22277/93, § 97, ECHR 2000-VII). 159. The “ effectiveness ” of a “ remedy ” within the meaning of Article 13 does not depend on the certainty of a favourable outcome for the applicant. Nor does the “ authority ” referred to in that provision necessarily have to be a judicial authority; but if it is not, its powers and the guarantees it affords are relevant in determining whether the remedy before it is effective. Also, even if a single remedy does not by itself entirely satisfy the requirements of Article 13, the aggregate of remedies provided for under domestic law may do so (see, among many other authorities, Silver and Others v. the United Kingdom, 25 March 1983, § 113, Series A no. 61, and Chahal, cited above, § 145). 160. The Court must now determine whether it was possible under French law for the applicant to complain about the decisions to prolong his solitary confinement and about any procedural irregularities, and whether the remedies were “ effective ” in the sense that they could have prevented the alleged violation occurring or continuing or could have afforded the applicant appropriate redress for any violation that had already occurred. 161. The Government accepted that, under the settled case-law of the Conseil d ’ Etat prior to 30 July 2003, decisions to place a prisoner in solitary confinement were equated to internal administrative measures in respect of which no appeal lay to the administrative courts. 162. The applicant lodged an appeal with the Administrative Court on 14 September 1996. However, this was dismissed in a judgment of 25 November 1998 on the ground that it was an internal measure that could not be referred to the administrative courts. 163. The Court notes on this point that the decision was consistent with the settled case-law of the Conseil d ’ Etat at the material time which the Government have themselves cited. 164. It was not until 30 July 2003 that the Conseil d ’ Etat changed its jurisprudence and ruled that an application for judicial review could be made in respect of decisions concerning solitary confinement and the decision quashed if appropriate. 165. The Court notes that the applicant has made only one application to the Administrative Court since the change in the case-law. Although he only challenged the lawfulness of the measure imposed on him on 17 February 2005, it is of the view that, having regard to the serious repercussions which solitary confinement has on the conditions of detention, an effective remedy before a judicial body is essential. The aforementioned change in the case-law, which would warrant being brought to the attention of a wider audience, did not in any event have retrospective effect and could not have any bearing on the applicant ’ s position. 166. The Court accordingly considers that in this case there has been a violation of Article 13 of the Convention on account of the lack of a remedy in domestic law that would have allowed the applicant to challenge the decisions to prolong his solitary confinement taken between 15 August 1994 and 17 October 2002. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 167. Article 41 of the Convention provides: “ If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party. ” A. Damage 168. The applicant made no claim for compensation. B. Costs and expenses 169. The applicant ’ s lawyer submitted an invoice for the total cost of visiting the applicant between June 1997 and October 2002. This included the hourly rates for the visits, travel expenses and procedural disbursements. The invoice came to a total of 426,852.40 euros (EUR). The second lawyer who represented the applicant at the hearing produced a statement showing the cost of visits made to the applicant between 22 May 1998 and 7 October 2002 in the amount of EUR 87,308, comprising EUR 69,846.40 for the visits themselves and EUR 17,461.60 for travel and the costs of formalities. The first lawyer expressed regret that the Chamber should have refused that request without taking into account lawyers ’ fixed overheads and asked the Court to grant it. 170. The account for costs and expenses incurred in presenting the application to the Court came to EUR 41, 860, to which were to be added EUR 8 0 0 for travel and accommodation for the two lawyers for the hearing in Strasbourg. 171. The Government submitted that the applicant ’ s claims were unreasonable and referred to their previous submissions. 172. They pointed out, firstly, that he had provided no evidence to show that he had actually paid the costs and expenses. 173. They added that the amount sought in respect of the visits had been calculated for the period from 1997 to 2002, although the application had not been lodged until 20 July 2000. There was consequently no causal link between the work done on the application and the visits that had been made prior to that date. 174. The Government also pointed out that, in view of the considerable number of hours (1,830) that had been claimed for visits without any breakdown, it was impossible to distinguish between visits by Ms Coutant Peyre in her capacity as a lawyer and those she had made personally as the applicant ’ s partner. They concluded that that claim had to be dismissed. 175. As to the claim for costs and expenses, the Government submitted that it must necessarily include the costs of visits made in a professional capacity. Noting that this claim was not based on a verifiable calculation either, they said that accordingly it could not be upheld. In conclusion, the Government proposed a payment of EUR 6,000 to the applicant for his costs and expenses in the event of the Court finding a violation in the case. 176. The Court reiterates that if it finds that there has been a violation of the Convention, it may award the applicant not only the costs and expenses incurred before it, but also those incurred before the national courts for the prevention or redress of the violation (see, among other authorities, Hertel v. Switzerland, 25 August 1998, Reports 1998-VI, and Yvon v. France, no. 44962/98, ECHR 2003 ‑ V), provided they have been necessarily incurred, the requisite vouchers have been produced and they are reasonable as to quantum (see, among other authorities, Kress v. France [GC], no. 39594/98, ECHR 2001 ‑ VI). 177. The Court notes that no explanation or evidence has been provided in the present case in support of the claim for reimbursement of the costs of the visits. Accordingly, it cannot make any award under this head. 178. The Court notes that no details or vouchers whatsoever have been provided in support of the claim for the costs and expenses incurred in presenting the application to it. However, having regard to the complexity of the questions raised by the application and ruling on an equitable basis, it considers it reasonable to award the applicant EUR 10, 0 00 in respect of all his costs incurred in the proceedings before the Court. C. Default interest 179. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been no violation of Article 3 (prohibition of inhuman and degrading treatment) of the Convention on account of the length of time the applicant had spent in solitary confinement. While sharing the European Committee for the Prevention of Torture‘s concerns about the possible long-term effects of the applicant’s isolation, the Court nevertheless considered that, having regard in particular to his character and the danger he posed, the conditions in which the applicant was held during the period under consideration had not reached the minimum level of severity necessary to constitute inhuman or degrading treatment within the meaning of Article 3 of the Convention. The Court further found in this case a violation of Article 13 (right to an effective remedy) of the Convention, on account of the lack of a remedy in French law that would have allowed the applicant to contest the decision to prolong his detention in solitary confinement. |
806 | Access to public buildings and buildings open to the public | RELEVANT LEGAL FRAMEWORK AND PRACTICE Domestic law and practice 16. Article 65 of the Icelandic Constitution establishes a general right to equality. Article 71 establishes a right to respect for private and family life, home and correspondence. Article 76 stipulates that a right to assistance shall be guaranteed by law to anyone who needs it due to illness, disability, age, unemployment, poverty or other similar situations. Article 78 of the Constitution establishes that municipalities manage their affairs independently as laid down by law. 17. Act no. 59/1992 on the Affairs of Persons with Disabilities (“the Disabilities Act”), as applicable at the material time, stipulated that municipalities were responsible for the organisation and implementation of services for disabled people, including the quality and cost of the services (section 4). Municipalities were obligated to address mobility issues of disabled people in an organised manner, including by preparing plans for improving the accessibility of public buildings and service institutions in accordance with the provisions of the Construction Act ( mannvirkjalög ) and the Planning Act ( skipulagslög ), and the regulations made thereunder (section 34). 18. Pursuant to Temporary Provision XIII of the Disabilities Act, Parliament approved the Minister of Welfare’s proposal for a parliamentary resolution on an action plan on matters concerning persons with disabilities for 2012-2014. The action plan, which referred to the CRPD and Iceland’s other international human rights obligations, called for each municipality to conduct an audit of the accessibility of public buildings, traffic infrastructure and other places accessible to the public. Subsequently, a plan for improvements would be drawn up wherever needed. INTERNATIONAL MATERIALCouncil of Europe texts Council of Europe texts Council of Europe texts 19. The Council of Europe’s Disability Strategy 2017-2023, entitled “Human Rights: A reality for all”, was adopted by the Committee of Ministers on 30 November 2016. It lists accessibility as one of its rights-based priority areas. It states, inter alia : “36. Accessibility challenges can be avoided or greatly diminished through intelligent and not necessarily costly applications of the universal design, which benefits everyone. In addition to necessary accessibility measures related to groups, individual barriers can further be overcome by individually tailored reasonable accommodation. Denial of reasonable accommodation as well as denial of access can constitute discrimination. Both of these concepts are defined and described in the UNCRPD (Articles 2 and 4). 37. Universal design and the promotion and development of affordable assistive technologies, devices and services aimed at removing existing barriers should be increasingly promoted. They need to be taken into consideration in all work within the Council of Europe and at national and local levels, including in the work of independent monitoring mechanisms.” 20. In its Recommendation 1592 (2003), entitled “Towards full social inclusion of persons with disabilities”, the Parliamentary Assembly stated that some of the fundamental rights contained in the Convention were still inaccessible to many people with disabilities, including the right to private and family life, and emphasised that guaranteeing access to equal political, social, economic and cultural rights should be a common political objective in the decade that followed. 21. In its Resolution 1642 (2009), entitled “Access to rights for people with disabilities and their full and active participation in society”, the Parliamentary Assembly invited member States to make the environment of their societies, including social and cultural venues, genuinely accessible to people with disabilities, including by ensuring that every new structure conformed to universal design principles and removing any obstacles in public buildings and indoor and outdoor public areas. 22. In its “Recommendation Rec(2006)5 on the Council of Europe Action Plan 2006-2015 to promote the rights and full participation of people with disabilities in society”, the Committee of Ministers recommended that member States integrate the principles and actions set out in the Action Plan in their policy, legislation and practice. The Action Plan stated, inter alia, that people with disabilities had a right to be fully integrated into society, including participating in its cultural life. It further pointed out that there was “no easy route” to attaining the goal of access and involvement in the arts and social life, that ultimately the enactment of specific legislation might be required, and that such legislation should reflect the concept of “reasonable adjustment” especially in the context of access to older buildings or historic monuments and smaller private business premises. 23. Article 15 of the revised European Social Charter, which Iceland has signed but not ratified, is set out in Béláné Nagy v. Hungary ([GC], no. 53080/13, § 35, 13 December 2016). United Nations texts 24. Article 27 of the Universal Declaration of Human Rights stipulates: “1. Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits. ...” 25. The relevant parts of the United Nations Convention on the Rights of Persons with Disabilities (“the CRPD”), which Iceland has ratified, are set out in Guberina v. Croatia (no. 23682/13, § 34, 22 March 2016). The following provisions are also particularly relevant to the present case: Article 2 Definitions “For the purposes of the present Convention: ... ‘Reasonable accommodation’ means necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms; ... Article 9 Accessibility ... 2. States Parties shall also take appropriate measures: a) To develop, promulgate and monitor the implementation of minimum standards and guidelines for the accessibility of facilities and services open or provided to the public; b) To ensure that private entities that offer facilities and services which are open or provided to the public take into account all aspects of accessibility for persons with disabilities; ... e) ..., to facilitate accessibility to buildings and other facilities open to the public; ... Article 30 Participation in cultural life, recreation, leisure and sport 1. States Parties recognize the right of persons with disabilities to take part on an equal basis with others in cultural life, and shall take all appropriate measures to ensure that persons with disabilities: ... c) Enjoy access to places for cultural performances or services, such as theatres, museums, cinemas, libraries and tourism services, and, as far as possible, enjoy access to monuments and sites of national cultural importance. ... 5. With a view to enabling persons with disabilities to participate on an equal basis with others in recreational, leisure and sporting activities, States Parties shall take appropriate measures: ... c) To ensure that persons with disabilities have access to sporting, recreational and tourism venues; ...” 26. In its General Comment No. 2 (2014) on Article 9: Accessibility, 22 May 2014, UN Doc. CRPD/C/GC/2, the CRPD Committee noted the following: “1. Accessibility is a precondition for persons with disabilities to live independently and participate fully and equally in society. Without access to the physical environment, to transportation, to information and communication, including information and communications technologies and systems, and to other facilities and services open or provided to the public, persons with disabilities would not have equal opportunities for participation in their respective societies ... ... 13. ... It is important that accessibility is addressed in all its complexity, encompassing the physical environment, transportation, information and communication, and services. The focus is no longer on legal personality and the public or private nature of those who own buildings, transport infrastructure, vehicles, information and communication, and services. As long as goods, products and services are open or provided to the public, they must be accessible to all, regardless of whether they are owned and/or provided by a public authority or a private enterprise. Persons with disabilities should have equal access to all goods, products and services that are open or provided to the public in a manner that ensures their effective and equal access and respects their dignity. This approach stems from the prohibition against discrimination; denial of access should be considered to constitute a discriminatory act, regardless of whether the perpetrator is a public or private entity ...” 27. In its General Comment No. 6 (2018) on equality and non-discrimination, 26 April 2018, UN Doc. CRPD/C/GC/6 the CRPD Committee noted the following: “40. Accessibility is a precondition and a means to achieve de facto equality for all persons with disabilities. For persons with disabilities to effectively participate in the community, States parties must address accessibility of the built environment, public transport, as well as information and communication services, which must be available and usable for all persons with disabilities on an equal basis with others ... 41. As noted above, accessibility and reasonable accommodations are two distinct concepts of equality laws and policies: (a) Accessibility duties relate to groups and must be implemented gradually but unconditionally; (b) Reasonable accommodation duties, on the other hand, are individualized, apply immediately to all rights and may be limited by disproportionality. 42. Because the gradual realization of accessibility in the built environment, public transportation and information and communication services may take time, reasonable accommodation may be used as a means to provide access to an individual in the meantime, as it is an immediate duty. The Committee calls upon States parties to be guided by its general comment No. 2 (2014) on accessibility.” THE LAW PRELIMINARY REMARKS 28. The present case concerns the lack of access for the applicant, who uses a wheelchair, to two particular public cultural and social buildings. The Court has hitherto had a few occasions to address issues relating to access to buildings and other public facilities and its implications for private life (see Botta v. Italy, 24 February 1998, Reports of Judgments and Decisions 1998 ‑ I; Zehnalová and Zehnal v. the Czech Republic (dec.), no. 38621/97, ECHR 2002 ‑ V; Glaisen v. Switzerland (dec.), no. 40447/13, 25 June 2019; and Neagu v. Romania (dec.), no. 49651/16, 29 January 2019). The Commission has addressed accessibility issues in the context of the right to education (see McIntyre v. the United Kingdom (dec.), no. 29046/95, 21 October 1998), and the Court has in a similar vein addressed issues relating to accommodation for people with disabilities in education (see Enver Şahin v. Turkey, no. 23065/12, 30 January 2018; G.L. v. Italy, no. 59751/15, 10 September 2020; and Çam v. Turkey, no. 51500/08, 23 February 2016). The Court has also examined complaints relating to access to polling stations in relation to the right to vote (see Toplak and Mrak v. Slovenia, nos. 34591/19 and 42545/19, 26 October 2021, and Mółka v. Poland (dec.), no. 56550/00, 11 April 2006) and accommodation of housing requirements (see Guberina, cited above). ACCESSIBILITY OF THE BUILDINGS 29. As a preliminary point, the Court notes that the actual accessibility of the buildings in question is disputed between the parties. 30. The Court reiterates that where domestic proceedings have taken place, it is not the Court’s task to substitute its own assessment of the facts for that of the domestic courts and, as a general rule, it is for those courts to assess the evidence before them. In this regard, the Court notes that the domestic courts considered it established that there was at least some lack of access to both buildings at the material time (see paragraph 11 above). Moreover, it is clear from the court-appointed assessor’s report that accessibility was not ensured to the standard required by the building regulations at the time, including concerning threshold heights and ramp slopes (see paragraph 10 above). 31. The Court’s assessment will therefore proceed on the same basis as that of the findings made by the domestic courts that the accessibility of both buildings was insufficient. Moreover, as will be explained below (see paragraph 63 below), although subsequent improvements to accessibility are not decisive for the Court’s assessment, it will have some regard to these improvements in its assessment of the matter. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION, read in conjunction with article 8 32. The applicant complained of a violation of his right under Article 14 of the Convention, in conjunction with Article 8. The provisions, in so far as relevant, read as follows: Article 8 “1. Everyone has the right to respect for his private ... life ... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. Article 14 “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as ... or other status.” AdmissibilityExhaustion of domestic remedies Exhaustion of domestic remedies Exhaustion of domestic remedies (a) The parties’ submissions 33. The Government submitted that the complaint was inadmissible for failure to exhaust domestic remedies as the applicant had insufficiently raised his rights under the Convention at national level, instead relying primarily on the CRPD. 34. The applicant disagreed, submitting that his written submissions to the Reykjanes District Court had sufficiently invoked the Convention rights under which he was now complaining to the Court. (b) The Court’s assessment 35. Article 35 § 1 of the Convention requires an applicant to make normal use of remedies which are available and sufficient in respect of his or her Convention grievances (see Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, § 71, 25 March 2014). In making use of such a remedy, the applicant must raise the complaint, if not explicitly by referring to the Convention, then “at least in substance”. This means that the applicant must raise legal arguments to the same or like effect on the basis of domestic law, in order to give the national courts the opportunity to redress the alleged breach (see Hanan v. Germany [GC], no. 4871/16, § 148, 16 February 2021). 36. The Court notes that the applicant referred explicitly to the Convention in his written submissions to the Reykjanes District Court, as well as to his right to enjoyment of private and family life and his wish to have access, on an equal basis with other residents of the municipality, to the buildings in question. His written submissions to the Supreme Court referred to the submissions before the District Court and explicitly relied on his equal right to enjoy the services provided in the buildings in question. Although the written submissions to the Supreme Court did not explicitly refer to the relevant provisions of the Convention, it is clear that the applicant invoked in substance the rights on which he is now relying at both levels of jurisdiction sufficiently to allow the national courts the opportunity to address his complaints. 37. The complaint is therefore not inadmissible for failure to exhaust domestic remedies. Applicability of Article 14 of the Convention taken in conjunction with Article 8 (a) The parties’ submissions 38. The Government submitted that the issue of accessibility to the buildings in question did not fall under the scope of the term “private life” within the meaning of Article 8, and that Article 14 could not therefore apply in the case. The Government submitted that there could be no conceivable link between the measures which the applicant had urged the respondent State to take and his private life. They further submitted that the lack of access had not prevented him from leading his life in a manner which respected his right to personal development. In this regard, the Government insisted that the buildings in question were partially accessible to the applicant, and that he also had general access to cultural events in his region. Therefore, in their view, the matter under consideration did not come within the scope of the applicant’s “private life”. 39. The applicant contested the Government’s submissions. He submitted that his access to the buildings had a significant impact on his inclusion in, or exclusion from, the cultural and social life of his local community. He argued that no similar cultural or social venues in the municipality were accessible to him. He submitted that the public authorities sponsored, at least in part, the activities and events in the two buildings for the very purpose of allowing local residents to further their personal development and relationships, and that he had demonstrated his real and individual interest in participating in these services and activities. This, he maintained, was evidenced by the domestic courts granting him locus standi, thereby acknowledging that he had a direct, individual and legally protected interest in the subject matter. (b) The Court’s assessment 40. The Court reiterates that Article 14 of the Convention complements the other substantive provisions of the Convention and its Protocols. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions. However, the application of Article 14 does not necessarily presuppose the violation of one of the substantive rights guaranteed by the Convention, and to this extent it is autonomous. A measure which in itself is in conformity with the requirements of the Article enshrining the right or freedom in question may, however, infringe that Article when read in conjunction with Article 14 for the reason that it is of a discriminatory nature. Accordingly, for Article 14 to become applicable, it is enough that the facts of the case fall “within the ambit” of another substantive provision of the Convention or its Protocols (see, among many other authorities, Khamtokhu and Aksenchik v. Russia [GC], nos. 60367/08 and 961/11, § 53, 24 January 2017, and Fabris v. France [GC], no. 16574/08, § 47, ECHR 2013 (extracts)). 41. In this connection, the Court has on many occasions held that the notion of “private life” within the meaning of Article 8 is a broad concept which does not lend itself to exhaustive definition. It covers the physical and psychological integrity of a person and, to a certain extent, the right to establish and develop relationships with other human beings. It can sometimes embrace aspects of an individual’s physical and social identity and the right to “personal development” or the right to self-determination (see Paradiso and Campanelli v. Italy [GC], no. 25358/12, § 159, 24 January 2017). 42. In the context of accessibility, the Court has held that Article 8 of the Convention comes into play only in exceptional cases, where the applicant’s lack of access to public buildings and buildings open to the public affects his or her life in such a way as to interfere with his or her right to personal development and right to establish and develop relationships with other human beings and the outside world (see Zehnalová and Zehnal, cited above). 43. The Court notes that in the cases of Botta, Zehnalová and Zehnal and Glaisen (all cited above), it found that the lack of wheelchair access of which the applicants complained did not fall within the ambit of private life and therefore held that Article 14, read in conjunction with Article 8, was inapplicable. In Botta, the applicant complained that the respondent State had failed to take action to enable him to access a particular private beach in a municipality distant from his normal place of residence. The Court held that the matter concerned interpersonal relations of such broad and indeterminate scope that there could be no conceivable direct link between the measures the State had been urged to take in order to make good the omissions of the private bathing establishments and the applicant’s private life. In Zehnalová and Zehnal, the applicants complained that their municipality had failed to act to ensure access for the first applicant to 174 buildings which were either public or open to the public. The Court recognised that States might have a positive obligation to ensure access to public buildings or buildings open to the public if a lack of access affected a person’s life in such a way as to interfere with his or her right to personal development and right to establish and develop relationships with other human beings and the outside world. However, noting the large number of buildings identified by the applicants, the Court found that they had failed to give precise details of the obstacles created by the lack of access, and that the first applicant had failed to demonstrate a special link between the lack of access and her private life. In Glaisen, the applicant complained that he had been unable to access a particular privately owned and operated cinema. The Court found that, considering that only around 10 to 12% of films had been exclusively screened in the cinema in question, and that other local cinemas had been accessible to the applicant, the matter had not affected his life in such a way as to interfere with his right to personal development or to establish and develop relationships. The Court furthermore notes that in Neagu, cited above, the Court held that, even assuming that Article 8 was applicable to the applicant’s complaints about obstruction of access to her residential building, her application was manifestly ill-founded. 44. In the present case, however, the Court considers the situation should be distinguished from that in the above-mentioned cases. Unlike the situation in Botta, the accessibility issue in the present case concerns buildings owned and/or operated by and located in the applicant’s own municipality. Unlike the situation in Zehnalová and Zehnal, the applicant has identified a small, clearly defined number of buildings where access is lacking and explained how the lack of access to each of those buildings has affected his life (see paragraph 39 above). Unlike the situation in Glaisen, the present case does not concern merely one of several similar, privately run cultural venues. Duushús is, by the Government’s own description, the municipality’s “main arts and cultural centre”, and it is not evident that the applicant could access similar cultural and social events and services at other venues in his municipality. According to questionnaires completed by the directors of Duushús and 88 Húsið and submitted by the Government, no other buildings in the municipality were available which had an equivalent purpose. Admittedly, 88 Húsið is primarily aimed at children and teenagers, but it is nevertheless a public building whose hall is rented out for activities and events, including those which can be attended by parents. 45. The applicant here has thus clearly identified two particular buildings which are publicly owned and/or operated and which appear to play an important role in local life in his municipality, which is home to fewer than 20,000 inhabitants. According to the applicant, the lack of access to Duushús has hindered his participation in a substantial part of the cultural activities that his community has to offer, and the lack of access at 88 Húsið has hindered him from attending birthday parties and other social events with his children (see paragraph 48 below). 46. The Court is conscious of the importance of enabling people with disabilities to fully integrate into society and participate in the life of the community, which has been emphasised by the Council of Europe and has led to significant developments in European and international standards. As noted by the CRPD Committee (see paragraph 27 above), accessibility is a precondition for people with disabilities to live independently and participate fully and equally in society. Without access to the physical environment and to other facilities and services open or provided to the public, people with disabilities would not have equal opportunities for participation in their respective societies. Against this background, and in the light of the circumstances of the case, the Court is satisfied that the matter at issue was liable to affect the applicant’s right to personal development and right to establish and develop relationships with other human beings and the outside world. Consequently, the matter under consideration falls within the ambit of “private life” within the meaning of Article 8 of the Convention. It follows that Article 14, taken together with Article 8, is applicable. (c) Conclusions as to the admissibility 47. In the light of the above, the complaint is neither inadmissible for failure to exhaust domestic remedies nor manifestly ill-founded or inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. MeritsThe parties’ submissions The parties’ submissions The parties’ submissions (a) The applicant 48. The applicant submitted that the lack of accessibility to the two buildings had hindered his personal development and right to establish and develop relationships with his community. Due to the lack of access to Duushús, he was unable to attend cultural events, art exhibitions, concerts and other events taking place there. As this was the primary location for such events in the municipality, this had severely hindered the applicant’s participation in society and put him on an uneven footing with other inhabitants of the municipality. As regards the lack of access to 88 Húsið, although the applicant acknowledged that its activities were primarily aimed at children and young people, the premises were frequently rented out for birthday parties and other similar events. The lack of access, in his view, had prevented him from accompanying his children to such events, which other parents were able to do. 49. The applicant further submitted that the test which the Court should apply was not whether the State was obligated to overcome de facto discrimination due to a lack of wheelchair accessibility, but rather whether it was free in the first place to offer cultural services which, by virtue of where they were offered, were not accessible to wheelchair users. This, the applicant submitted, placed a lesser burden on the State, not requiring it to remedy any lack of accessibility in private establishments, but merely to refrain from offering public services in inaccessible buildings. 50. Furthermore, the applicant emphasised that the domestic courts had failed to engage in an exercise of balancing the relevant rights and assessing the sufficiency of the measures taken. Instead, the Supreme Court’s conclusion had been based solely on its finding that the municipality alone was competent to decide how to prioritise its funds in this regard. (b) The Government 51. The Government submitted that the applicant had not suffered discrimination contrary to Article 14 as reasonable accommodation measures had been taken to enable him to enjoy his rights on an equal basis with others. They further submitted that obligations to ensure accessibility were of a gradual nature and that the State had fulfilled these obligations by putting in place initiatives to improve access (see paragraph 18 above) and beginning to implement these initiatives. The Supreme Court’s finding, that the municipality alone was competent under the Constitution to decide on accessibility projects and improvements and had to be afforded room to manoeuvre in the prioritisation of funds, bore scrutiny because prioritising accessibility projects was inevitable and Reykjanesbær’s plans for improvements had been extensive and already partially implemented. 52. The Government noted that Reykjanesbær had, in 2012, commissioned an audit of its public and publicly accessible buildings. Subsequently, a plan for improvements had been drawn up. In 2014, a budget of ISK 24 million had been allocated to improving accessibility. A further ISK 2 million had been allocated to accessibility improvements in 2015 and the municipality had planned to allocate ISK 10 million in 2016, but no information on the actual allocation in 2016 was submitted. The Government further submitted that due to the need to prioritise funds available for accessibility improvements, priority was given to improvements in administrative buildings, schools, sports halls and other educational facilities. Moreover, the Government emphasised that the buildings in question were protected under legislation on cultural heritage due to their age, and that any improvements had to respect their integrity and history. 53. The Government contended that the two buildings in question were not the only cultural and social venues in the municipality and submitted an overview of the other public and private cultural and social buildings in the municipality containing photographs of the entrances to the buildings and assertions that many of them had “very good access” for wheelchairs. They argued that the applicant thus had other opportunities to enjoy his private life and participate in his community than those provided in the two buildings. 54. The Government submitted that the applicant had not demonstrated his need to use the two buildings on a daily basis to exercise his right to personal development and right to develop and maintain relationships with other members of his local community. Overall, the conclusion of the Supreme Court had constituted a fair balance between the general interest of the municipality on the one hand, and the applicant’s interest in enjoying “perfect accessibility” to the two buildings in question on the other. The Court’s assessment (a) General principles 55. The Court reiterates that “discrimination” means treating differently, without an objective and reasonable justification, people in relevantly similar situations, and that a difference in treatment is devoid of any “objective and reasonable justification” where it does not pursue a “legitimate aim” or there is no “reasonable relationship of proportionality between the means employed and the aim sought to be realised” (see Enver Şahin v. Turkey, no. 23065/12, § 54, 30 January 2018). 56. However, the Court reiterates that this is not the only facet of the prohibition of discrimination under Article 14. The right not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is also violated when States without an objective and reasonable justification fail to treat differently people whose situations are significantly different (see J.D. and A. v. the United Kingdom, nos. 32949/17 and 34614/17, § 84, 24 October 2019, with further references, notably Thlimmenos v. Greece [GC], no. 34369/97, § 44, ECHR 2000‑IV). In this context, a certain threshold is required in order for the Court to find that the difference in circumstances is significant. For this threshold to be reached, a measure must produce a particularly prejudicial impact on certain people as a result of a protected ground, attaching to their situation and in light of the ground of discrimination invoked (see Ádám and Others v. Romania, nos. 81114/17 and 5 others, § 87, 13 October 2020, and Napotnik v. Romania, no. 33139/13, § 73, 20 October 2020). As the effective enjoyment of many of the Convention rights by people with disabilities may require the adoption of various positive measures by the relevant State authorities (see Mółka v. Poland (dec.), no. 56550/00, ECHR 2006‑IV), this threshold of significance must likewise be attained when an applicant alleges the existence of discrimination due to a lack of positive measures by the respondent State (see Toplak and Mrak, cited above, § 111). 57. The Court also notes that the Convention should, as far as possible, be interpreted in harmony with other rules of international law of which it forms part (see Enver Şahin, cited above, § 53), and that therefore the provisions regarding the rights of people with disabilities set out in the CRPD should, along with other relevant material (see paragraphs 25-27 above), be taken into consideration. The Court observes, in this connection, that in its General Comment No. 2 the CRPD Committee noted that the denial of access of people with disabilities to, inter alia, facilities and services open to the public should be viewed within the context of discrimination (see paragraph 26 above and Toplak and Mrak, cited above, § 112). The Court itself has previously held there to be a European and worldwide consensus on the need to protect people with disabilities from discriminatory treatment (see Glor v. Switzerland, no. 13444/04, § 53, ECHR 2009). 58. The States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify different treatment (see Vallianatos and Others v. Greece [GC], nos. 29381/09 and 32684/09, § 76, ECHR 2013, and Toplak and Mrak, cited above, § 113). The scope of the margin of appreciation will vary according to the circumstances, the subject matter and its background, but the final decision as to the observance of the Convention’s requirements rests with the Court (see Biao v. Denmark [GC], no. 38590/10, § 93, 24 May 2016). A wide margin is usually allowed to the State when it comes to general measures of economic or social strategy (ibid.). The Court considers that when a claim is made concerning a lack of access of public buildings within the context of the right to respect for private and family life, a similarly wide margin of appreciation should be afforded to the State. However, since the Convention is first and foremost a system for the protection of human rights, the Court must have regard to the changing conditions in Contracting States and respond, for example, to any emerging consensus as to the standards to be achieved (see Enver Şahin, § 55, and Glor, § 75, both cited above). 59. In previous cases concerning the rights of people with disabilities, the Court, referring to the CRPD, has found that Article 14 of the Convention has to be read in the light of the requirements of those texts regarding “reasonable accommodation” – understood as “necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case” – which people with disabilities are entitled to expect in order to ensure “the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms” (Article 2 of the CRPD, see paragraph 25 above). Such reasonable accommodation helps to correct factual inequalities which are unjustified and which therefore amount to discrimination (see Çam, § 65, and Toplak and Mrak, § 114, both cited above). The Court finds that these considerations apply equally to the participation of people with disabilities in social and cultural life. It notes, in this regard, that Article 30 of the CRPD explicitly requires the States Parties to guarantee to people with disabilities the opportunity to take part on an equal basis with others in cultural life (see paragraph 25 above). (b) Application of these principles to the present case (i) Establishing the framework of the assessment 60. At the outset, the Court considers that the present case should be considered from the viewpoint of whether or not the national authorities complied with their positive obligation to take appropriate measures to enable the applicant, whose mobility is impaired due to disability, to exercise his right to private life on an equal basis with others. Therefore, and taking account of the facts of the present case, the Court makes clear that for this assessment the test to be applied is limited to examining whether the State made “necessary and appropriate modifications and adjustments” to accommodate and facilitate persons with disabilities, like the applicant, which, at the same time, did not impose “a disproportionate or undue burden” on the State (see paragraph 59 above). 61. As established above, the Court considers that the lack of accessibility in the buildings in question was liable to affect the applicant’s right to personal development and right to establish and develop relationships with other human beings and the outside world (see paragraphs 44-46 above). As the Court held in Guberina (cited above, § 92), by adhering to the requirements set out in the CRPD the respondent State undertook to take its relevant principles into consideration, such as reasonable accommodation, accessibility and non-discrimination against people with disabilities with regard to their full and equal participation in all aspects of social life (see paragraphs 25-27 above). The Court will therefore proceed to assess whether the respondent State has fulfilled its duty to accommodate the applicant, as a person with disabilities, in order to correct factual inequalities, applying the test as outlined above (see paragraph 60). (ii) The Court’s analysis 62. The Court observes that the domestic courts, in their judgments in the applicant’s case, did not explicitly recognise and assess the rights and interests of the applicant at stake, instead deciding the case primarily on the grounds of the discretion granted to the municipalities in allocating their funds and prioritising their projects. As a result, the Court does not, in its assessment of the merits of the case, benefit from a prior assessment by the national courts of the balancing of the competing interests and whether sufficient steps had been taken to accommodate the accessibility needs of people with disabilities, including the applicant. 63. Nevertheless, taking account of the nature and limited scope of its assessment, as described above, and the State’s wide margin of appreciation, (see paragraphs 58-59 above), the Court is not convinced that the lack of access to the buildings in question amounted to a discriminatory failure by the respondent State to take sufficient measures to correct factual inequalities in order to enable the applicant to exercise his right to private life on an equal basis with others. The Court notes, in this regard, that considerable efforts seem to have been made to improve accessibility of public buildings and buildings with public functions in Reykjanesbær following the parliamentary resolution of 2011 (see paragraph 18 above). In deciding on those improvements, the municipality prioritised improving accessibility to educational and sports facilities, which is neither an arbitrary nor unreasonable strategy of prioritisation, also considering the emphasis which the Court has placed on access to education and educational facilities in its case-law (see Enver Sahin and Çam, both cited above). Further accessibility improvements which have since been made, although not decisive for the assessment of the present case (see paragraph 31 above), nevertheless demonstrate a general commitment to work towards the gradual realisation of universal access in line with the relevant international materials (see paragraphs 22 and 27 above). The Court thus accepts that, in the circumstances of the present case, imposing on the State a requirement under the Convention to put in place further measures would have amounted to imposing a “disproportionate or undue burden” on it within the context of its positive obligations established by the Court’s case-law (see paragraph 59 above) to reasonably accommodate the applicant. 64. Therefore, in conclusion, the Court finds that the respondent State and Reykjanesbær took considerable measures to assess and address accessibility needs in public buildings, within the confines of the available budget and having regard to the cultural heritage protection of the buildings in question (see paragraphs 51-52 above). The Court reiterates that the scope of its assessment was limited to whether the respondent State had complied with its positive obligations by taking sufficient measures to correct factual inequalities impacting the applicant’s equal enjoyment of his right to private life. In the light of the above and considering the measures already undertaken, the Court concludes that the applicant was not discriminated against in the enjoyment of his right to respect for private life. 65. There has, accordingly, been no violation of Article 14 read in conjunction with Article 8 of the Convention. | The Court held that there had been no violation of Article 14 (prohibition of discrimination) read in conjunction with Article 8 (right to respect for private life) of the Convention in the present case, finding that, overall, Reykjanesbær had taken adequate measures to address accessibility to public buildings, within the confines of the available budget and having regard to the cultural heritage protection of the buildings in question, and that the applicant had not been discriminated against. The Court referred in particular to the United Nations Convention on the Rights of Persons with Disabilities13, which stated that the denial of access of people with disabilities to facilities and services open to the public should be viewed as discrimination. It affirmed that States have a certain discretion in this area. The State had to facilitate individuals with disabilities provided that that did not involve a disproportionate burden. It the instant case, noting the general efforts made to improve access to municipal buildings in Iceland, the Court was not convinced that there had been a discriminatory failure that had prevented the applicant from enjoying the access others had. Reykjanesbær had elected to improve access to sports and educational facilities initially, which the Court found to be a reasonable decision. It noted that there had been improvements made since and there is a commitment to gradual improvement of access for disabled people. It concluded that obliging Iceland to take further immediate measures would have amounted to a “disproportionate or undue burden”. |
976 | Copyright of books and musical work | II. RELEVANT DOMESTIC LAW A. The Constitution: 22. Article 113 provides that the State shall recognise the freedom of scientific research, artistic and other creative activity, and shall protect copyright and patent rights. B. The Civil Law 23. Section 5 provides that a judge must be guided by the general principles of law and justice when a court is called upon to adjudicate on its own discretion or when exceptional circumstances have to be taken into account. C. Copyright Law (Autortiesību likums) (wording in force at the material time) 24. Section 7(2) provides that rightsholders may exercise copyright themselves or through a representative, such as an organisation for collective management of rightsholders ’ economic rights arising from copyright (hereinafter – “the collective management of copyright” ). The rights of a rightsholder are set out in section 15 and encompass, among other things, the authors ’ exclusive rights to publish, reproduce and broadcast their work. Authors shall have the right to use their work in any manner, to permit or prohibit its use, to receive remuneration for permission to use it, except in cases provided for by law (section 15(4)). 25. Pursuant to section 40, permission to use a work is given in the form of a licence, which must be obtained in order to have a right to use a protected work. 26. Section 41 provides that by entering into a licence agreement the copyright holders authorise the parties to the agreement to use the protected works. The licence agreement sets out the conditions for the use of work, the remuneration and the payment procedure. Part three of the above section provides that if the licence agreement does not set out the royalty rate, the latter shall be decided by the domestic courts. 27. Under section 42(4) general licences are issued by organisations for collective management of copyright, and the licence gives a right to use the work of all the authors represented by the organisation. 28. Chapter X sets out the regulations on the collective management of copyright. Specifically, in a case where the protection of copyright cannot be ensured on an individual basis or if such protection is encumbered, copyright protection is ensured by a collective management organisation (section 63(1)). It sets out that such economic rights which arise from broadcasting of protected works shall only be administered collectively (section 63(2)). The organisation for collective management is founded by authors and it operates within the powers vested in it by the authors (section 63(3)). 29. The organisation for collective management has, inter alia, the following tasks: it sets an equitable royalty rate in cases provided for by law (see section 63(2) above); it negotiates with the users of protected works on the terms of remuneration, on procedures for payment and on conditions for the issuing of licences; the organisation issues licences to the users of works in relation to the rights administered by it; it collects royalty payments as specified in the licence, and distributes them (section 65(1)). 30. On the scope of the rights of an organisation for collective management, section 64 provides that such an organisation shall protect the rightsholders ’ economic rights arising from their copyright over artistic works, and that the organisation shall represent the authors ’ rights and interests in all matters with any public or private party, including in court proceedings and matters related to such proceedings. 31. Section 69 provides that in a case of copyright violation, the rightsholders ’ as well as the collective management organisation have the right to ask the perpetrator to recognise the protected rights; to prohibit the use of the protected work; to request immediate termination of any unlawful activities; and to claim damages, including for lost earnings, or to claim compensation in an amount set by the court. D. Other relevant information 32. Pursuant to part 3 of the articles of association of the applicant organisation ( SIA AKKA/LAA statūti ), the applicant organisation has its own property which consists primarily of deductions from the collected royalty payments. The income exceeding the administration expenses was put into savings to be used by the applicant organisation following the decisions of its shareholders – that is to say the authors. 33. On the basis of the standard representation agreements concluded between the applicant organisation and authors for the protection of authors ’ rights, the applicant organisation has rights in its own name ( savā vārdā ) to, without obtaining additional authorisation, carry out all procedural matters in court proceedings, to bring claims, and lodge appeals, and to receive court awarded damages. The application organisation was mandated to deduct no more that 25% of the collected sums as remuneration for the services provided, whereas the authors agreed not to, inter alia, defend or carry out any activities associated with any of the rights entrusted to the applicant organisation. III. RELEVANT INTERNATIONAL LAW A. WIPO Copyright Treaty (adopted in Geneva on December 20, 1996), to which Latvia acceded on 22 March 2000; and which came into effect on 6 March 2002 34. In the Preamble of the WIPO Copyright Treaty the contracting States emphasised the outstanding significance of copyright protection as an incentive for literary and artistic creation, as well as recognising the need to maintain a balance between the rights of authors and the larger public interest, particularly education, research and access to information, as reflected in the Berne Convention. 35. Articles 8 and 11 of the WIPO Copyright Treaty state as follows: Article 8 Right of Communication to the Public “ Without prejudice to the provisions of Articles 11(1)(ii), 11 bis (1)(i) and (ii), 11 ter (1)(ii), 14(1)(ii) and 14 bis (1) of the Berne Convention, authors of literary and artistic works shall enjoy the exclusive right of authorizing any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access these works from a place and at a time individually chosen by them. ” 36. Explanatory remark to the above Article reads as follows: “ It is understood that the mere provision of physical facilities for enabling or making a communication does not in itself amount to communication within the meaning of this Treaty or the Berne Convention. It is further understood that nothing in Article 8 precludes a Contracting Party from applying Article 11 bis (2). ... ” Article 11 Obligations concerning Technological Measures “ Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights under this Treaty or the Berne Convention and that restrict acts, in respect of their works, which are not authorized by the authors concerned or permitted by law. ” B. Berne Convention for the Protection of Literary and Artistic Works (hereinafter – “the Berne Convention” (in force with respect to Latvia from 11 August 1995) 37. Article 11bis of the Berne Convention sets out provisions in relation to broadcasting and related rights: “ (1) Authors of literary and artistic works shall enjoy the exclusive right of authorizing: (i) the broadcasting of their works or the communication thereof to the public by any other means of wireless diffusion of signs, sounds or images; (ii) any communication to the public by wire or by rebroadcasting of the broadcast of the work, when this communication is made by an organization other than the original one; (iii) the public communication by loudspeaker or any other analogous instrument transmitting, by signs, sounds or images, the broadcast of the work. (2) It shall be a matter for legislation in the countries of the Union to determine the conditions under which the rights mentioned in the preceding paragraph may be exercised, but these conditions shall apply only in the countries where they have been prescribed. They shall not in any circumstances be prejudicial to the moral rights of the author, nor to his right to obtain equitable remuneration which, in the absence of agreement, shall be fixed by competent authority. (3) In the absence of any contrary stipulation, permission granted in accordance with paragraph (1) of this Article shall not imply permission to record, by means of instruments recording sounds or images, the work broadcast. It shall, however, be a matter for legislation in the countries of the Union to determine the regulations for ephemeral recordings made by a broadcasting organization by means of its own facilities and used for its own broadcasts. The preservation of these recordings in official archives may, on the ground of their exceptional documentary character, be authorized by such legislation. ” THE LAW I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION 38. The applicant organisation complained that the domestic courts had restricted the copyright of authors whose musical works were collectively managed by the applicant organisation. They complained, in particular, that as a result of the domestic proceedings in which the domestic courts had ordered the applicant organisation to conclude licence agreements with defendant organisations and had set a royalty rate, the authors ’ exclusive rights to freely conclude licence agreements for the use of their musical works had been restricted, contrary to Article 1 of protocol No. 1 of the Convention, which reads as follows: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” A. Admissibility 1. Compatibility ratione materiae 39. The Government argued in substance that the contested domestic proceedings related to the setting of royalty rates and not to property rights. 40. The applicant organisation contested the Government ’ s argument. 41. The Court reiterates that the protection of intellectual property rights, including the protection of copyright, falls within the scope of Article 1 of Protocol No. 1 to the Convention (see Anheuser-Busch Inc. v. Portugal [GC], no. 73049/01, § 72, ECHR 2007 ‑ I, and Melnychuk v. Ukraine (dec.), no. 28743/03, 5 July 2005). The Court observes that the domestic courts in the course of the impugned civil proceedings acknowledged, among other issues, the infringement of the copyright of authors represented by the applicant organisation. The protection of musical works and the economic interests deriving from them thus fall within the scope of rights protected under Article 1 of Protocol No. 1. 42. Consequently, the Court dismisses the objection raised by the Government in this regard. 2. Compatibility ratione personae (a) Arguments of the Parties 43. The Government contended that the applicant organisation had acted merely as an intermediary between the users of artistic works and the authors, who had transferred only the implementation of part of their pecuniary rights to the applicant organisation. The Government argued that the applicant organisation had not been directly affected by any measures and it had not by virtue of its administrative and representative function acquired any “possession” within the meaning of Article 1 of Protocol No. 1 to the Convention. The recognition of the applicant organisation ’ s locus standi in the domestic proceedings according to the Government did not automatically envisage compliance with Article 34 of the Convention. The Government maintained that the applicant organisation could not claim to be a victim of a measure that infringed the rights guaranteed by the Convention to its members. 44. The applicant organisation argued that under domestic law and following the practice of the domestic courts they were the only entity under the national law that had the legal capacity to exercise the copyright of authors ’ works and to protect and manage authors ’ rights in legal relationships with users of such works, including the protection of the fundamental rights of the authors. It emphasised that the contested domestic proceedings had been brought in the name of the organisation itself as, under domestic law, the authors themselves could not enter into licence agreements with the broadcasters or bring claims. This, in the applicant organisation ’ s opinion, proved that they should be considered as a direct victim in the light of the Convention. In the alternative, the applicant organisation asked the Court to recognise it as an indirect victim on the ground of the applicant organisation ’ s very close link to the direct victims, notably, the authors. Under domestic law the latter had been obliged to establish the applicant organisation which had since been managing and protecting their artistic works. (b) The Court ’ s assessment 45. The Court has held that two conditions must be met in order to comply with Article 34 of the Convention: an applicant must fall into one of the categories of petitioners mentioned in Article 34, and he or she must be able to make out a case that he or she is the victim of a violation of the Convention. In addition, in order for an applicant to be able to claim to be a victim of a violation of the Convention, there must be a sufficiently direct link between the applicant and the harm allegedly sustained on account of the alleged violation (see Gorraiz Lizarraga and Others v. Spain, no. 62543/00, § 35, ECHR 2004 ‑ III with further references ). Moreover, an association cannot claim to be itself a victim of measures alleged to have interfered solely with the rights of its individual members if the contested measure did not affect the organisation as such ( see Association des Amis de Saint-Raphael et de Frejus and Others v. France, no. 38192/97, Commission decision of 1 July 1998, Decisions and Reports (DR), no. 94 ‑ B, p. 124). 46. It is true that in the present case the applicant organisation ’ s arguments at first sight appear to concern the protection of the authors ’ rights. However, given the status and role of the applicant organisation, the Court cannot share the Government ’ s view that the only legitimate victims vis-à-vis the Court ’ s proceedings were individual members of that organisation. 47. In so far as the applicant organisation raised its complaints in its function as a representative of the affiliated authors, the Court takes note of the following provisions of domestic law and documents regulating the functioning of the applicant organisation. 48. The Copyright Law provided that in relation to certain types of use of artistic work, such as the broadcasting of music, the economic rights of copyright holders were only to be administrated collectively (see paragraph 24 above). For that reason Latvian authors founded the applicant organisation and vested it with the powers to set royalty rates for the use of their works, to license broadcasters in Latvia and abroad to use those works, and to distribute to the authors the collected royalty payments (see paragraph 29 above). For the applicant organisation to be able to carry out the above functions, it had its own property which consisted primarily of deductions from the collected royalty payments (see paragraph 32 above). The Court observes in particular that the applicant organisation had broad powers in relation to the matters falling within the collective management of certain type of copyright. The authors have explicitly given up their rights to, inter alia, represent their interests in any court proceedings, and they have vested these rights in the applicant organisation (see paragraph 33 above). 49. The Court considers that once the domestic legal order attributes the protection of authors ’ rights to an organisation founded by the authors for this purpose, and vests it with independent rights transferred from the authors, including the right to have its own property made up primarily of deduction from royalty payments, then that organisation must be regarded as the victim of measure affecting these rights. In the present case, as a result of the contested civil proceedings the applicant organisation was ordered to conclude written licence agreements with the defendant organisations. The domestic courts set the royalty rates in the licence agreements with broadcasters, and thus interfered with the functions and economic interests of the applicant organisation. In these circumstances the applicant organisation ’ s rights were directly affected by the impugned civil proceedings. 50. In the light of the above, the Court dismisses the Government ’ s objection as to the applicant organisation ’ s victim status. 3. Overall conclusion 51. This complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. Whether there was an interference with the applicant organisation ’ s possessions (a) Possessions 52. The Government submitted that the rights and obligations stemming from representation agreements concluded between the applicant organisation and authors had not created a separate right or asset that could be regarded as a possession for the purpose of Article 1 of Protocol No 1. 53. The applicant organisation referred to their previous arguments in relation to their victim status and contended that because the applicant organisation had collectively managed the authors ’ intellectual property rights, those property rights had been deemed its possessions within the meaning of Article 1 of Protocol No. 1 to the Convention. 54. The Court reiterates that the concept of “possessions” referred to in the first part of Article 1 of Protocol No. 1 has an autonomous meaning. In the case of non-physical assets, the Court has taken into consideration, in particular, whether the legal position in question gave rise to financial rights and interests and thus had an economic value (see, for example, Mullai and Others v. Albania, no. 9074/07, § 97, 23 March 2010). 55. The Court refers to its findings that the applicant organisation held the rights transferred to it by its members, that is to say the authors of musical works (see paragraphs 48-49 above). Accordingly, in the light of Article 1 Protocol No. 1 to the Convention the applicant organisation ’ s rights constituted “possessions” in the form of musical works and the economic interests deriving from them. (b) Interference 56. The Government disagreed that the impugned domestic decisions amounted to an interference with the applicant organisation ’ s right to peaceful enjoyment of its possession. It argued that even though the domestic courts had restricted the authors ’ freedom to conclude licence agreements by putting an end to the civil dispute between the parties, the domestic courts had carried out the State ’ s positive obligation to ensure that authors could effectively enjoy the rights guaranteed to them under the Convention. 57. The applicant organisation contended that as a result of the domestic proceedings it had been ordered to conclude compulsory licence agreements with broadcasters on terms set by the courts. The above measure constituted control of its possessions and the respondent State had failed to comply with their negative obligation not to interfere disproportionally with the peaceful enjoyment of the authors ’ property rights. 58. According to the Court ’ s case-law determination of the conditions in which another person can use one ’ s property is one aspect of a property right (see R & L, s.r.o. and Others v. the Czech Republic, nos. 37926/05, 25784/09, 36002/09, 44410/09 and 65546/09, § 102, 3 July 2014), and a measure restricting the freedom to enter into contracts should be analysed in the light of Article 1 of Protocol No. 1. In the present case, as a result of two sets of civil proceedings the applicant organisation was ordered to conclude written licence agreements with defendant organisations. Certain terms and conditions were set by the domestic courts and thus attested to the limits imposed on the freedom to enter into contracts in relation to the broadcasting of music. 59. Accordingly, the Court considers that there has been interference with the applicant organisation ’ s possessions in the form of a control of the use of property which will accordingly be examined under the third sentence of Article 1 of Protocol No. 1. 2. Whether the interference complied with the conditions set out by Article 1 of Protocol No. 1 60. In order to comply with Article 1 of Protocol No. 1 to the Convention, it must be shown that the measure constituting the interference was lawful, that it was “in accordance with the general interest”, and that there existed a reasonable relationship of proportionality between the means employed and the aim sought to be realised (see Vistiņš and Perepjolkins v. Latvia [GC], no. 71243/01, §§ 106 and 108, 25 October 2012 ). The Court will examine whether each of those three conditions has been fulfilled in the present case. (a) Whether the interference was prescribed by law 61. The Government relied on the limits of the Court ’ s competence pertaining to the interpretation and application of the domestic law and contended that the domestic legal instruments, specifically the Copyright Law, as interpreted by the domestic courts, had served as a valid legal basis for the alleged interference. 62. The applicant organisation argued that the fact that in the contested proceedings the domestic courts had ordered it to enter into a licence agreement either lacking any legal basis in national law (in relation to the second set of proceedings) or on the basis of insufficiently accessible and unforeseeable law (the first set of proceedings). They considered that there was no legal basis for the domestic courts to conclude that the draft licence agreement could have had the same weight as a concluded agreement, and that in both proceedings the same norms had been applied differently, thus attesting to its insufficient clarity. 63. The Court reiterates that in the context of an alleged breach by a tribunal of domestic legal provisions relating to the competence of judicial organs, the Court will not question the interpretation of the domestic courts on the matter, unless there has been a flagrant violation of domestic law (see Biagioli v. San Marino, (dec.), no. 8162/13, §§ 71-75, 8 July 2014). 64. The Court observes that according to the domestic courts ’ reasoning, its competence to order the parties to enter into a licence agreement and to set an equitable royalty rate in the particular cases was determined by virtue of sections 15, 41 and 65 of the Copyright Law, interpreted in the light of Article 11 bis of the Berne Convention and section 5 of the Civil Law. In the first set of proceedings the domestic courts established that both parties had agreed on a draft licence agreement, except for the terms of remuneration ( see paragraph 14 above), whereas in the second set of proceedings the parties had in principle agreed to conclude a licence agreement but they had not agreed on its terms ( see paragraph 19 above). The Court sees no reason to call into question the domestic courts ’ interpretation of the above provisions, for it is sufficient to conclude that the domestic courts ’ competence to deal with the issue had some basis in the domestic law. 65. In so far as the applicant organisation complained that the basis in the domestic law had been too vague, the Court reiterates that in the particular circumstances where the parties had expressed their intent to enter into a licence agreement, the application of the relevant provisions of Copyright Law could not be considered to have been arbitrary. The notion of “lawfulness” does not exclude judicial interpretation, for many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice (see OAO Neftyanaya Kompaniya Yukos v. Russia, no. 14902/04, § 568, 20 September 2011, and the case-law cited therein ). In both sets of proceedings the domestic courts provided reasons as to the setting of royalty rates and the legal basis for conclusion of the licence agreements. 66. The Court therefore concludes that the interference was “prescribed by law”. (b) Whether the interference pursued a legitimate aim 67. The Government contended that the adopted measure had been aimed to serve the interests of the community as end users of the musical works, as well as the interests of the rightsholders to enjoy public use of their works. 68. According to the applicant organisation, the interference with the authors ’ rights to freely negotiate the use of their works served no general interest for the following reasons. Firstly, the contested measure had been aimed at solving a legal dispute between two private parties and furnishing commercial benefits for the broadcasters. Secondly, by exercising the freedom to enter into contracts granted to authors under domestic law, the applicant organisation had a right to negotiate with the users upon equitable terms for their works and even to prohibit the use of their works in order to motivate the radio stations to conclude equitable licence agreements. The domestic courts had restricted this freedom and therefore the contested measure had not been aimed at protecting the authors who had been bound by the activities of the applicant organisation as their representative. 69. On the question of a legitimate aim of the interference the Court refers to its case-law according to which it is for the national authorities to make the initial assessment as to the existence of a problem of public concern warranting measures to be applied in the sphere of the exercise of the right of property. Since the margin of appreciation available to the legislature in implementing social and economic policies is wide, the Court will respect the legislature ’ s judgment as to what is “in the public interest”, unless that judgment is manifestly without reasonable foundation (see Ališić and Others v. Bosnia and Herzegovina, Croatia, Serbia, Slovenia and the former Yugoslav Republic of Macedonia [GC], no. 60642/08, § 106, ECHR 2014). 70. It appears from the decisions adopted by the domestic courts that over an extended period of time protected works were being broadcast without a valid licence, and that this situation was to a certain extent due to the applicant organisation ’ s limited efficiency in carrying out negotiations with the defendants. These observations attest to the domestic court ’ s efforts to maintain a balance between the rights of the applicant organisation to obtain equitable remuneration from the use of musical work, on the one hand, and the defendants ’ interest to obtain a licence allowing them to legally broadcast rights-protected work. In these circumstances the domestic courts ’ judgment on the question of public interest could not be considered as manifestly without reasonable foundation. 71. In the light of the above, the Court considers that the measures complained of pursued a legitimate aim within the meaning of Article 1 of Protocol No. 1. (c ) Whether a fair balance was struck 72. The Government argued that by adopting the contested decisions the domestic courts had balanced the interests of copyright holders and the public in general. Furthermore, the Government underlined that in reaching the decision the domestic courts had done their outmost to assist the parties in reaching a settlement. After the failed attempts to reach an agreement, the domestic court had had two alternatives: ordering the conclusion of a written licence agreement and setting the amount of remuneration, even if it had been lower than what the applicant organisation had requested; or upholding the applicant organisation ’ s application to have the use of the musical work banned until the conclusion of a licence agreement. As the latter option would not have served the interests of the copyright holders and the general public, the domestic court had had to intervene and set an adequate royalty rate. 73. The applicant organisation maintained that by having been ordered to enter into a licence agreement with terms of remuneration which did not compensate the authors for the use of their works, the domestic courts had manifestly breached the balance between the right to receive remuneration for the use of musical works and the general interest. They also argued that the above restriction had not been justified by any public interest because the defendant in the first set of proceedings had been a commercial broadcaster and had transmitted authors ’ work to gain profit. They added that in any event any public interest to have access to musical works could have been satisfied by those broadcasters in Latvia which had concluded a licence agreement with the applicant organisation. In reply to the Government ’ s argument that by the contested measures the domestic courts had solved a long-running dispute, the applicant organisation contended that the resolution of the case had not been in favour of the authors. In this connection they argued that before the contested proceedings the broadcasters had used the musical work without any licence and that the applicant organisation had done everything to reach an out-of-court settlement in the dispute with them. 74. The Court reiterates that whether a case is analysed in terms of the positive duty of the State or in terms of interference by a public authority which needs to be justified under Article 1 of Protocol No. 1 of the Convention, the criteria to be applied do not differ in substance: in both contexts regard must be had to the fair balance to be struck between the competing interests of the individual and of the community as a whole. It also holds true that the aims mentioned in that provision may be of some relevance in assessing whether a balance between the demands of the public interest involved and the applicant ’ s fundamental right of property has been struck. In both contexts the State enjoys a certain margin of appreciation in determining the steps to be taken to ensure compliance with the Convention (see Broniowski v. Poland [GC], no. 31443/96, § 144, ECHR 2004-V ). The Court observes that the applicant organisation in substance considered that the State ’ s actions, through the decision of the domestic courts, had constituted an unjustified interference, whereas the Government contended that by adopting the contested decisions the State had carried out its positive obligations as enshrined by international and domestic copyright agreements and legislation. 75. As observed before, by virtue of the Berne Convention and the domestic law as interpreted and applied by the domestic courts, where no agreement between the parties had been reached and were no other authority had decided on this issue, it was for the courts to set an equitable royalty rate (see paragraph 64 above). 76. In order to assess whether the above mechanism in the particular case provided safeguards so as to ensure that the functioning of the copyright protection system and its impact were neither arbitrary nor unforeseeable, the Court takes into account the following elements. 77. Firstly, before laying down the royalty rate, the domestic courts endeavored to provide the parties with time to reach an agreement during the court proceedings. Since it was not possible, the domestic court relied on the fact that in the first set of proceedings the parties had already reached an agreement on the method for calculation of the royalty rate (see paragraph 14 above). In the second set of proceedings the domestic court referred to the method used in other valid licence agreements concluded between the applicant organisation and other broadcasters, and the rate set by the courts was not considerably lower than the rate negotiated by the parties in their previous licence agreement ( see paragraph 18 above ). 78. Secondly, observing the interests of the copyright holders, the national courts had established that in the circumstances where the parties in principle were willing to enter into an agreement, banning the broadcast of the music would not suit the best interests of copyright holders, that is to say to receive the maximum benefit from the oeuvres. 79. Thirdly, as far as the courts ’ orders for the parties to enter into a licence agreement was concerned, the measure was limited in scope and time. In the first set of proceedings the royalty rate was set for a period of three years, which had already been agreed by the parties. Whereas in the second set of proceedings the domestic court took note of the scope of the claim and the counterclaim and imposed on the parties merely a general obligation to conclude a licence agreement. Accordingly, the parties were not prevented from renegotiating the rate (contrary to, for example, Anthony Aquilina v. Malta, no. 3851/12, 11 December 2014, which concerned restrictions on fixing a rent over an extended period of time). It follows that the authorities had minimally restricted the right of the applicant organisation to renegotiate terms and conditions with the defendants and other broadcasting companies. 80. The foregoing considerations are sufficient to enable the Court to conclude that the Latvian authorities did strike a fair balance between the demands of the general interest and the rights of the applicant organisation. 81. There has accordingly been no violation of Article 1 of Protocol No. 1 to the Convention. II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 82. The applicant organisation complained of a violation of a right to a fair hearing. In particular, the applicant organisation complained that the principle of equality of arms had not been respected as regards the extension of the limits of the counterclaim in the second set of proceedings. They relied on Article 6 of the Convention which, in its relevant parts, reads as follows : “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” 83. The Government contested that argument and considered that the present application fell outside the Court ’ s jurisdiction ratione materiae because the contested proceedings had not concerned any particular civil rights of the applicant organisation. The Government, in the alternative, argued that the domestic courts had in no way extended the limits of the defendant ’ s counterclaim and that in both sets of civil proceedings the domestic courts had duly assessed the arguments of both parties. 84. The applicant organisation maintained that in the second set of proceedings the Supreme Court in its judgment of 26 November 2003 had unilaterally extended the limits of the defendant ’ s counterclaim, and that the Senate of the Supreme Court had not addressed the applicant organisation ’ s arguments on this matter brought in their appeal on points of law. 85. The Court notes that this claim is closely linked to the complaint examined above and must therefore likewise be declared admissible. 86. Having regard to the Court ’ s finding relating to Article 1 of Protocol No. 1 that in examining the defendant organisation ’ s counterclaims the national courts had acted in accordance with domestic law and that they had provided sufficient reasoning in their decisions, for the reasons that is has given for finding no violation of Article 1 of Protocol No. 1 (see, in particular, paragraphs 64- 65 and 77 -79 above), the Court concludes that there has been no violation of Article 6 of the Convention. III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 87. Lastly, the applicant organisation invoked other complaints under Articles 6, 13 and Article 1 of Protocol No. 1 to the Convention, in relation to other aspects of the contested civil proceedings. 88. In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court considers that the remainder of the application does not disclose any appearance of a violation of any of the Articles of the Convention relied on. It follows that these complaints are inadmissible under Article 35 § 3 (a) as manifestly ill ‑ founded and must be rejected pursuant to Article 35 § 4 of the Convention. | The Court held that there had been no violation of Article 1 (protection of property) of Protocol No. 1 to the Convention and no violation of Article 6 § 1 (right to fair trial) of the Convention. It found in particular that the Latvian authorities had struck a fair balance between the demands of the public interest (namely, the radio companies’ interest in obtaining a licence allowing them to legally broadcast work as well as the general public’s interest in having access to musical works), on the one hand, and the rights of the applicant organisation to obtain equitable remuneration from the use of musical work, on the other. Indeed, the effort to maintain a balance between the competing interests could be seen in their decisions, which had observed that protected works were being broadcast without a valid licence over an extended period of time and that that situation had to a certain extent been due to the applicant organisation’s limited efficiency in carrying out negotiations with the radio companies. |
446 | Medical assistance for prisoners with a physical illness | II. RELEVANT DOMESTIC LAW A. Constitution of Ukraine 75. The relevant extract of the Constitution of Ukraine provides: Article 27 “ Every person has the inalienable right to life. No one shall be arbitrarily deprived of life. The duty of the State is to protect human life. ...” Article 28 “Everyone has the right to respect for his or her dignity. No one shall be subjected to torture, cruel, inhuman or degrading treatment or punishment that violates his or her dignity. ...” Article 55 “Human and citizens'rights and freedoms shall be protected by the courts. Everyone shall be guaranteed a right to challenge in court the decisions, actions or omissions of bodies of State power, bodies of local self-government, officials and officers. ... Everyone shall have a right to protect his or her rights and freedoms from violations and illegal encroachments by any means not prohibited by law.” Article 56 “Everyone shall have a right to compensation from public or municipal bodies for losses sustained as a result of unlawful decisions, acts or omissions by public or municipal bodies or civil servants in the performance of their official duties .” B. Code of Criminal Procedure, 1960 76. The Code requires a competent authority to institute criminal proceedings if there is a suspicion that a crime has been committed. That authority is under an obligation to carry out all measures provided for by law to establish the facts and to identify those responsible and secure their conviction (Article 4). 77. Article 94 of the Code provides that criminal proceedings shall be instituted in the following cases : “ Criminal proceedings shall be instituted following : ( 1) applications or communications from ... individuals; ... ( 5) direct detection of signs of a crime by a body of inquiry, investigation, a prosecutor or a court. A case can be instituted only when there is sufficient information indicating a crime.” No criminal proceedings can be brought in the absence of a corpus delicti (Article 6). 78. According to Article 165-1 § 3 of the Code, the decision of the body of inquiry, investigator, prosecutor or court to apply, change or discontinue a preventive measure (including pre-trial detention) should be communicated to the person concerned immediately. 79. Article 236-1 of the Code provides: “Within seven days of notification, a decision of the body of inquiry, investigator or prosecutor not to institute criminal proceedings or a refusal of the higher prosecutor to quash such a decision can be appealed against by an interested party or their representative to the district (town) court within whose area of jurisdiction the authority which took the decision falls...” 80. The relevant part of Article 236-2 of the Code provides: “An appeal against the decision of the body of inquiry, investigator or prosecutor not to institute criminal proceedings shall be examined [by a court] in a single-judge formation within ten days of being lodged. The judge shall request the materials on the basis of which the decision not to institute criminal proceedings was made, examine them and inform the prosecutor and the appellant of the date on which the hearing of the appeal is listed. Having examined the case, the judge ... may take one of the following decisions: (1) to set aside the decision not to institute criminal proceedings and to remit the case for further preliminary inquiries... (2) to dismiss the appeal ...” C. Civil Code, 2003 81. Articles 1166 and 1167 of the Civil Code, as in force since 1 January 2004, provide for the possibility to claim pecuniary and non-pecuniary damages inflicted as a result of the unlawful decisions, actions or inactivity of an individual or a legal entity, including State bodies. D. Code of Civil Procedure, 2004 82. Article 201 § 1 (4) of the Code of Civil Procedure provides in its relevant part: “The court must suspend its examination of a case if ...it is impossible to hear that case before the termination of another set of civil, criminal or administrative proceedings.” E. Pre- Trial Detention Act, 1993 83. Article 20 § 4 reads as follows: “Rulings, judgments or decisions granting release shall be implemented immediately upon their receipt by the detention centre.” F. Medical Assistance and Sanitary Rules in SIZO, approved by Order No. 3/6 of the State Department for Enforcement of Sentences and the Ministry of Health on 18 January 2000 ( «Порядок медико - санітарного забезпечення осіб, які утримуються в слідчих ізоляторах та виправно - трудових установах Державного департаменту України з питань виконання покарань, затверджений наказом Державного департаменту України з питань виконання покарань та Міністерства охорони здоров'я України від 18 січня 2000 р. N 3/6 ») 84. In accordance with Section 6.1.3 of the Rules, all persons should undergo an initial medical examination on their arrival at the SIZO. The results of this examination are entered in the SIZO medical register. During the examination the doctor should inform the detainee about the possibility of undergoing a HIV test. III. RELEVANT INTERNATIONAL DOCUMENTATION A. Recommendation No. R (87) 3 of the Committee of Ministers on the European Prison Rules (adopted by the Committee of Ministers on 12 February 1987 at the 404th meeting of the Ministers'Deputies) 85. The relevant extracts from the European Prison Rules read as follows: “ Medical services 26. 1. At every institution there shall be available the services of at least one qualified general practitioner. The medical services should be organised in close relation with the general heath administration of the community or nation. They shall include a psychiatric service for the diagnosis and, in proper cases, the treatment of states of mental abnormality. 2. Sick prisoners who require specialist treatment shall be transferred to specialised institutions or to civil hospitals. Where hospital facilities are provided in an institution, their equipment, furnishings and pharmaceutical supplies shall be suitable for the medical care and treatment of sick prisoners, and there shall be staff of suitably trained officers. ... 30. 1. The medical officer shall have the care of the physical and mental health of the prisoners and shall see, under the conditions and with a frequency consistent with hospital standards, all sick prisoners, all who report illness or injury and any prisoner to whom attention is specially directed. 2. The medical officer shall report to the director whenever it is considered that a prisoner's physical or mental health has been or will be adversely affected by continued imprisonment or by any condition of imprisonment. ” B. Reports of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment [“CPT”] 86. The relevant extract from the Report of the CPT on a visit to Ukraine from 24 November to 6 December 2002 reads as follows: “125. In addition to tuberculosis, the Ukrainian prison system is currently faced with an increase in the number of HIV-positive prisoners (Between 1987 and January 2002, 8,046 HIV-positive prisoners were identified. As of 1 October 2002, the prison system had 1,577 HIV-positive prisoners and 17 prisoners who had developed AIDS. It has to be added that the World Bank approved a $60 million loan for a tuberculosis and HIV/AIDS control programme in Ukraine, which includes considerable support for the penitentiary system ). The Department for the Execution of Sentences has therefore devised a priority strategy for curbing the spread of the virus, based on an awareness and information campaign targeting prisoners and prison staff, the introduction of confidential voluntary screening tests and follow-up after the tests, the provision of means of prevention and disinfection for prisoners and the absence of discrimination against HIV-positive prisoners. ” THE LAW I. SCOPE OF THE CASE 87. The Court observes that further new complaints under Article 3 of the Convention were submitted after communication and in response to the Government's objections as to the admissibility and merits of the application, and concerned the authorities'failure to account for the injuries to Olga Biliak's hands, legs, left cheekbone and chin disclosed by the autopsy. The applicants also complained under Article 5 § 3 of the Convention that Olga Biliak had not been released pending trial; they thus challenged the whole period of her detention from 22 April 2003 until 1 February 2004. 88. In the Court's view, the new complaints are related in a general sense to the present case, but do not constitute an elaboration of the applicants'original complaints to the Court communicated to the Government by the decision of 14 March 2006. The Court considers, therefore, that it is not appropriate to take this matter up separately now in the context of the present application (see, inter alia, Piryanik v. Ukraine, no. 75788/01, § 20, 19 April 2005, and Lyashko v. Ukraine, no. 21040/02, § 29, 10 August 2006 ). II. ALLEGED VIOLATION OF ARTICLES 2 AND 13 OF THE CONVENTION 89. The applicants complained that the authorities had failed to provide Olga Biliak with the appropriate medical care while in detention and were thus responsible for her death. They also complained that the investigation into her death had been neither adequate nor effective. 90. The applicants relied on Article 2 of the Convention, which, in its relevant part, reads as follows: “1. Everyone's right to life shall be protected by law. ...” 91. They also relied on Article 13 of the Convention, which reads as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. Admissibility 92. The Government contended that the applicants'complaints about the death of Olga Biliak were premature since the applicant's civil action against the SIZO for non-pecuniary and pecuniary damage incurred as a result of the death of their daughter and mother was still under consideration by the domestic courts. They further submitted that the criminal complaint lodged by the applicants before the prosecutor's office was an effective remedy and that they had made successful use of it. Moreover, the investigation into the applicants'criminal complaint was still pending. 93. The applicants stated that the remedies referred to by the Government were ineffective in their case. 94. The Court recalls at the outset that where a violation of the right to life is alleged, the Convention organs have accepted applications from relatives of the deceased. For example applications have been brought by a deceased's wife ( Aytekin v. Turkey, judgment of 23 September 1998, Reports of Judgments and Decisions 1998-VII), a deceased's mother ( Çiçek v. Turkey, no. 25704/94, 27 February 2001), a deceased's father ( Hugh Jordan v. the United Kingdom, no. 24746/94, ECHR 2001-III (extracts)) and a deceased's brother and sister (see respectively Ergi v. Turkey, judgment of 28 July 1998, Reports 1998-IV and Şemsi Önen v. Turkey, no. 22876/93, 14 May 2002). Therefore, the applicants in the present application can claim to be victims of the alleged violations under Article 2 of the Convention. 95. The Court further recalls that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges applicants first to use the remedies that are normally available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. The existence of the remedies must be sufficiently certain, in practice as well as in theory, failing which they will lack the requisite accessibility and effectiveness. Article 35 § 1 also requires that the complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements laid down in domestic law, but that no recourse should be had to remedies which are inadequate or ineffective (see Aksoy v. Turkey, 18 December 1996, §§ 51-52, Reports of Judgments and Decisions 1996-VI, and Akdivar and Others v. Turkey, 16 September 1996, §§ 65-67, Reports 1996 ‑ IV ). 96. The Court emphasises that the application of the rule of exhaustion of domestic remedies must make due allowance for the fact that it is being applied in the context of machinery for the protection of human rights that the Contracting States have agreed to set up. Accordingly, it has recognised that Article 35 § 1 must be applied with some degree of flexibility and without excessive formalism. It has further recognised that the rule of exhaustion is neither absolute nor capable of being applied automatically; for the purposes of reviewing whether it has been observed, it is essential to have regard to the circumstances of the individual case. This means among other things that the Court must take realistic account not only of the existence of formal remedies in the legal system of the Contracting State concerned but also of the general context in which they operate, as well as the personal circumstances of the applicant (see Akdivar and Others, cited above, § 69, and Aksoy, cited above, §§ 53 and 54). 97. The respondent Government argued that two avenues of recourse were available to the applicants, namely a claim for damages and a criminal complaint. 98. As regards the civil-law remedy, the Court recalls that in the cases of Afanasyev v. Ukraine ( no. 38722/02, § 77, 5 April 2005) and Kucheruk v. Ukraine (no. 2570/04, § 112, 6 September 2007), it dismissed the similar objection of the Government on the ground that in the absence of any results from the ongoing criminal investigation, the civil courts were prevented from considering the merits of claims relating to alleged criminal offences. In particular, the Court found that a claim for compensation could be lodged only against a particular person or persons. The remedy became futile if the offender was not identified and prosecuted. In particular, in the present case the national courts recognised the impossibility of deciding on the applicants'civil claims until the persons responsible for Olga Biliak's treatment were identified (see paragraph 74 above), and the Government did not provide any explanations as to whether this was possible in civil proceedings. Therefore, the Court sees no reason to depart in the present case from its previous findings. 99. As regards criminal-law remedies, the Court considers that this limb of the Government's preliminary objection raises issues concerning the effectiveness of the criminal investigation in establishing the facts concerning, and responsibility for, the events of which the applicants complained. These issues are closely linked to the merits of the applicants'complaints under Articles 2 and 13 of the Convention. In these circumstances, it joins the preliminary objection to the merits of the applicants'complaints. 100. The Court further notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that they are not inadmissible on any other grounds. B. Merits 1. Alleged failure of the Ukrainian authorities to protect Olga Biliak's right to life 101. The applicants maintained that Olga Biliak had died in detention because she had not received timely and adequate medical aid and that the SIZO management had been in possession of all the information needed in order to take adequate measures to save Olga Biliak's life. In particular, they indicated that the SIZO management had been well aware of Olga Biliak's HIV status since September 2003 at the latest and not merely since January 2004 as the Government had submitted. Moreover, Olga Biliak had been suffering not only from the HIV infection but from numerous other diseases for which she had also failed to receive any treatment. 102. The Government claimed that Olga Biliak's death had not been a consequence of inadequate conditions of detention or medical assistance, but the outcome of an unpredictable development of the illness she had acquired prior to her placement in custody and of which she had failed to inform the prison authorities. The prison doctors had examined her on many occasions and prescribed appropriate medical treatment and medication. Their recommendations had been fully complied with. As soon as the prison authorities had started to suspect that she was HIV-positive they had undertaken all necessary measures, including requesting the prosecution authorities to authorise her release. According to the Government, all Olga Biliak's health complaints had been addressed in timely and adequate fashion by the prison doctors, and the State could not bear responsibility for any suffering of which she had not informed the authorities. The Government reiterated that since the investigation into the circumstances of Olga Biliak's death was still pending, they could not comment on the existence or absence of a violation of the Convention provision. 103. The Court reiterates that Article 2 of the Convention, which safeguards the right to life, ranks as one of the most fundamental provisions in the Convention. Together with Article 3, it enshrines one of the basic values of the democratic societies making up the Council of Europe. The first sentence of Article 2 enjoins the Contracting States not only to refrain from the taking of life “intentionally” or by the “ use of force ” disproportionate to the legitimate aims referred to in sub-paragraphs ( a) to ( c) of the second paragraph of that provision, but also to take appropriate steps to safeguard the lives of those within its jurisdiction (see, inter alia, L.C.B. v. the United Kingdom, 9 June 1998, § 36, Reports 1998 ‑ III, and Keenan v. the United Kingdom, no. 27229/95, § 89, ECHR 2001 ‑ III). 104. Persons in custody are in a particularly vulnerable position and the authorities are under an obligation to account for their treatment. Having held that the Convention requires the State to protect the health and physical well-being of persons deprived of their liberty, for example by providing them with the requisite medical assistance (see, inter alia, Keenan, cited above, § 111; Mouisel v. France, no. 67263/01, § 40, ECHR 2002-IX; and McGlinchey and Others v. the United Kingdom, no. 50390/99, § 46, ECHR 2003-...), the Court considers that, where a detainee dies as a result of a health problem, the State must offer an explanation as to the cause of death and the treatment administered to the person concerned prior to his or her death. As a general rule, the mere fact that an individual dies in suspicious circumstances while in custody should raise an issue as to whether the State has complied with its obligation to protect that person's right to life ( see Slimani v. France, no. 57671/00, § 27, ECHR 2004 ‑ IX (extracts) ). 105. The Court notes that from 14 April 2003 until her death on 1 February 2004 Olga Biliak was in custody and, accordingly, under the control of the Ukrainian authorities. On her arrival at the SIZO, Olga Biliak was examined by a doctor and was found to be generally healthy (see paragraph 24 above). However, throughout her detention she suffered from various chronic illnesses such as a gastric ulcer, chronic bronchitis, pyelonephritis and other conditions which, exacerbated by her HIV infection, required constant medical supervision and appropriate treatment. 106. The Court next notes the Government's argument that due to Olga Biliak's reluctance to disclose her HIV status, the authorities learned of this only at a very late stage. In this respect the Court observes that in a letter of 26 September 2003 the first applicant informed the SIZO management of the fact that his daughter was HIV-positive. The Court therefore rejects this submission of the Government and finds that at least as far back as September 2003 the prison authorities should have been aware of Olga Biliak's HIV status. 107. In the light of this finding and having regard to the vulnerability of HIV-positive persons to other serious diseases, the Court finds the lack of medical attention to Olga Biliak's health problems striking. Although she was suffering from numerous serious diseases her treatment seems to have been very basic. 108. In particular, in December 2003 and January 2004, when Olga Biliak developed serious respiratory problems, suffered from an extremely high body temperature and was losing weight rapidly – a state of affairs not contested by the Government –, her health problems were not addressed accordingly, and it was only on 21 January 2004 that a more in-depth diagnosis of her state of health was made. 109. Moreover, the prison authorities not only refused to transfer Olga Biliak to a specialist hospital but also failed to move her to the medical wing of the SIZO. She remained on general location even after 22 January 2004, when the management of the SIZO acknowledged the need for her to be admitted to hospital and requested the investigating authorities'authorisation to release her on medical grounds. 110. On 13 and 19 January 2004, that is, forty-four and fifty days respectively after Olga Biliak's condition started to deteriorate, the prosecution authorities refused her and her lawyer's requests for release, without addressing her health issues. Moreover, the prison management's application for her urgent release was acted upon only seven days later and the decision to release her was processed with a four-day delay, during which time she died of HIV-related diseases. 111. The Court notes that according to the report of 17 November 2006 the death of Olga Biliak was indirectly caused by the inadequate medical assistance provided to her while she was in detention. The Government did not contest the accuracy of this report, nor did they produce any other medical evidence to refute this conclusion. 112. Accordingly, the Court finds that there has been a violation of Article 2 of the Convention on account of the Ukrainian authorities'failure to protect Olga Biliak's right to life. 2. Procedural obligations under Article 2 of the Convention 113. The Government maintained that the investigation into Olga Biliak's death had been carried out by the Shevchenkivskyy Prosecutor's Office, a body independent from the prison authorities. The investigators had thoroughly examined the circumstances of the victim's death, commissioned medical examinations and assessed the other available evidence. The somewhat protracted nature of the investigation had been due to the need to obtain medical evidence. The Government reiterated that in the absence of a final decision on the applicants'criminal complaints they could not comment on whether or not there had been a violation of the State's procedural obligations under Article 2 of the Convention. 114. The applicants did not submit any observations in this respect. 115. The Court reiterates that where lives have been lost in circumstances potentially engaging the responsibility of the State, Article 2 entails a duty for the State to ensure, by all means at its disposal, an adequate response – judicial or otherwise – so that the legislative and administrative framework set up to protect the right to life is properly implemented and any breaches of that right are repressed and punished (see Öneryıldız v. Turkey [GC], no. 48939/99, § 91, ECHR 2004 ‑ XII ). In particular, when a detainee dies in suspicious circumstances, an “ official and effective investigation ” capable of establishing the causes of death and identifying and punishing those responsible must be carried out of the authorities'own motion (see Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 7 4, ECHR 2002 ‑ II). 116. The system required by Article 2 must provide for an independent and impartial official investigation that satisfies certain minimum standards as to effectiveness. Accordingly, the competent authorities must act with exemplary diligence and promptness, and must of their own motion initiate investigations capable of, firstly, ascertaining the circumstances in which the incident took place and any shortcomings in the operation of the regulatory system and, secondly, identifying the State officials or authorities involved. The requirement of public scrutiny is also relevant in this context (see, mutatis mutandis, Sergey Shevchenko v. Ukraine, no. 32478/02, § 65, 4 April 2006 ). 117. Turning to the circumstances of the present case, the Court, in the light of the above principles, finds that a procedural obligation arose under Article 2 of the Convention to investigate the circumstances of the death of the applicants'daughter and mother (see Slimani v. France, cited above, §§ 29-34). It considers that the criminal investigation into the death of Olga Biliak revealed some serious inconsistencies and deficiencies. 118. The Court notes at the outset that the investigation into the applicants'complaints has lasted so far for four years and nine months and, apparently, is still pending. During this period the investigation authorities refused on three occasions to institute criminal proceedings, but these decisions were subsequently quashed by the national courts and the case was submitted for further investigation. In particular, in its first decision on 30 April 2004 the Shevchenkivskyy Court gave detailed instructions as to what evidence should be obtained and what circumstances established in the context of the investigation into the death of Olga Biliak. However, as the decisions of that court of 28 September 2005 and 12 July 2007 evince, those instructions have to date not been fully complied with by the investigating authorities. 119. The Court also notes that the Shevchenkivskyy Prosecutor's Office's decisions of 21 February 2005 and 25 December 2006 not to institute criminal proceedings were taken before important evidence – the results of the additional inquiry and the additional medical evidence – had been obtained. Both these decisions were strikingly terse and limited to the finding that in the absence of the above evidence there was no indication that Olga Biliak's death had been caused by violence or medical negligence. 120. The Court further observes that the investigation authorities have never properly addressed the main issue of the applicants'complaints – the quality of the medical treatment provided to Olga Biliak viewed in the context of the diseases she had been diagnosed with. 121. Moreover, some parts of the investigation did not satisfy the minimum requirement of independence. In particular, a part of the witness evidence, namely the statements of Olga Biliak's cellmates, was obtained by the authority directly involved (see paragraph 52 above) (see, mutatis mutandis, Sergey Shevchenko v. Ukraine, no. 32478/02, § 70, 4 April 2006). No attempt was made by the prosecution to interview those persons again or to confirm their statements by any other means. This is especially striking given that the statements appear to be identical although provided by eight different persons. 122. Finally, the Court notes that throughout the investigation the applicants were to a large extent excluded from the proceedings. Having no formal status in the proceedings, the applicants were denied access to the file and were never informed or consulted about any proposed evidence or witnesses. On some occasions the applicants did not receive any information about the progress of the investigation and, when it was discontinued on 21 February 2005, they were not informed of this development. On the contrary, the applicants were misled by the letter from the Kyiv City Prosecutor's Office of 11 April 2005, which stated that the investigation was still under way. It was not until August 2005 that they learned of the decision to discontinue it. Moreover, there was a lack of coordination even between the national authorities themselves since the decision of 21 February 2005 was quashed by the higher prosecutor although it had been already quashed by the court (see paragraphs 61-62 above). Accordingly, the investigation did not ensure the investigation and its results with a sufficient element of public scrutiny; nor did it safeguard the interests of the next-of-kin. 123. In the light of these circumstances, the Court concludes that there has been a violation of the respondent State's obligation under Article 2 of the Convention because of the failure to conduct an effective and independent investigation into the death of Olga Biliak. It follows that the Government's preliminary objection (see paragraph 99 above) must be dismissed. 3. Article 13 of the Convention 124. The Government maintained that the civil claim lodged by the applicants was a remedy which the applicants had used effectively. Furthermore, they referred to the possibility for them to claim damages in a civil court. 125. The applicants claimed that the investigation into the death of their mother and daughter, which had been limited to a pre-investigation examination ( дослідча перевірка ), had been insufficient. They also stated that the investigation had lacked independence and had been unduly delayed. Finally, the applicants submitted that their exclusion from the proceedings had been contrary to the requirement of public scrutiny. 126. Having regard to its finding above under Article 2 of the Convention that the authorities failed to carry out an effective investigation into the circumstances of Olga Biliak's death (see paragraph 123 above), the Court does not find it necessary to examine this issue also in the context of Article 13 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 127. The applicants complained that during her detention in the SIZO Olga Biliak had been held in inadequate conditions. They relied on Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Admissibility 128. The Court notes that the applicants'complaint about the inadequate conditions of Olga Biliak's detention is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 129. The applicants alleged that Olga Biliak had been held in seriously substandard conditions in the SIZO. 130. The Government contested the applicants'arguments. 131. The Court notes that these complaints arise out of the same facts as those considered under Article 2. In the light of its conclusion with respect to that Article (see paragraph 112 above), the Court does not consider it necessary to examine these complaints separately. IV. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION 132. The applicants complained that Olga Biliak's detention between 29 January 2004 and 1 February 2004 had been unlawful. They relied on Article 5 § 1 of the Convention, the relevant part of which reads as follows: “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; ...” A. Admissibility 133. The Government contended that the applicants'complaints were premature since the applicants'civil case was still under consideration by the domestic courts. 134. The applicants stated that there were no effective remedies in respect of this complaint. 135. The Court recalls that while the next-of-kin of persons who have died in circumstances giving rise to issues under Article 2 of the Convention may apply as applicants in their own right (see paragraph 94 above), the Court has held that the rights guaranteed under Article 5 of the Convention belonged to the category of non-transferable rights (see, Bic and others v. Turkey (dec.), no. 55955/00, 2 February 2006). However, in a number of cases where unlawful detention was related to the disappearances of the applicants'next-of-kin, the Court held that the applicants could also raise complaints concerning such detention and found a violation of Article 5 of the Convention (see, Çakıcı v. Turkey [GC], no. 23657 /94, § 107, ECHR 1999 ‑ IV). Turning to the facts of the present case, the Court notes, without prejudging on the merits of the applicants'complaint, that Olga Biliak had to be released on 29 January 2004 because of her health problems but the decision on her release had not been enforced immediately as the national law provides and on 1 February 2004 Olga Biliak died. Therefore, the applicants'complaint about Olga Biliak's unlawful detention between 29 January 2004 and 1 February 2004 is closely linked to their complaint under Article 2 of the Convention and the applicants should be entitled to allege a violation of Article 5 of the Convention. 136. The Court further notes that in their civil claim against the SIZO the applicants indeed indicated that their daughter and mother had died in the SIZO, inter alia, because of the failure of its management to release her immediately after the relevant decision had been taken. However, the main issue in the applicants'action before the national courts is the claim for compensation for the lack of proper medical assistance afforded to Olga Biliak while she was in detention. Furthermore, the applicants'claim was lodged against the management of the SIZO, whereas it is unclear from the documents provided by the parties whether the latter was solely responsible for the failure to immediately release Olga Biliak. In particular, the date on which the decision of 29 January 2004 reached the SIZO has not been definitively established. Moreover, the Court even has doubts about the date on which this decision was taken, since one day later the Head of the District Police Department requested the SIZO to bring Olga Biliak to the District Police Department on 2 February 2004, despite the fact that she should have already been released by that date (see paragraph 45 and 70 above). The Court further notes that the civil proceedings in question have already lasted for four years and four months for two instances and are apparently still pending before the first-instance court. In such circumstances, the Court is of the opinion that this remedy cannot be regarded as effective within the meaning of Article 35 § 1 of the Convention. 137. The Court therefore dismisses this objection. It further notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. Nor is it inadmissible on any other grounds. B. Merits 138. The applicants contended that the decision of 29 January 2004 on Olga Biliak's release had not been executed for three days. Such a delay could not be justified by the necessity of completing administrative formalities and her detention had thus been unlawful within the meaning of Article 5 § 1 of the Convention. 139. The Government reiterated that in the absence of the final decision in the applicants'civil case, they could not comment as to whether or not there had been a violation of the applicant's right to liberty. 140. The Court reiterates that the expressions “lawful” and “in accordance with a procedure prescribed by law” in Article 5 § 1 essentially refer back to national law and state the obligation to conform to the substantive and procedural rules thereof. However, the “lawfulness” of detention under domestic law is not always the decisive element. The Court must in addition be satisfied that detention during the period under consideration was compatible with the purpose of Article 5 § 1 of the Convention, which is to prevent persons from being deprived of their liberty in an arbitrary fashion (see Ječius v. Lithuania, no. 34578/97, § 56, ECHR 2000 ‑ IX ). 141. The Court observes that Article 165-1 of the Code of Criminal Procedure stipulates that the detained person should be immediately informed of the decision to release him or her. Article 20 of the Pre-trial Detention Act provides that the management of the detention centre is obliged to discharge the detained person immediately on receipt of the release order. It is not in dispute that none of the above was done in the present case. 142. The Court therefore finds that the detention of Olga Biliak from 29 January to 1 February 2004 was not lawful within the meaning of Article 5 § 1 (c). 143. There has thus been a violation of Article 5 § 1 of the Convention. V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 144. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 145. In respect of pecuniary damage the applicants claimed UAH 2,600 [3] for the money they spent on Olga Biliak's medication while in detention and the costs of her funeral. The applicants also claimed UAH 300,000 [4] in respect of non-pecuniary damage. 146. As to the amount claimed in respect of pecuniary damage, the Government stated that the applicants have produced documents only in support of the medical expenses in the amount of UAH 1,901 [5]. While conceding to the fact that the applicants had incurred certain expenses in connection with Olga Biliak's funeral, the Government pointed out that they had failed to produce any evidence proving the exact sum of these costs. 147. As regards non-pecuniary damage, the Government maintained that the amount claimed by the applicants was unsubstantiated and exorbitant. 148. The Court notes that on 14 December 2006 the applicants were requested to submit by 29 January 2007 their claims for just-satisfaction. They failed to submit any such claims within the required time-limits but a month later without any explanation of the delay. 149. In such circumstances the Court would usually make no award. In the present case, however, the Court has found a violation of Article 2 of the Convention. Since this right is of a fundamental character, the Court finds it possible, exceptionally, to award the applicants EUR 7,000 each by way of non-pecuniary damage (see, Nadrosov v. Russia, no. 9297/02, § § 53-54, 31 July 2008 ), plus any tax that may be chargeable. B. Costs and expenses 150. The applicants also claimed USD 10,000 [6] for the costs and expenses. In this respect they have provided two agreements concluded between the first applicant and Ms Shevchenko, the first one for amount of UAH 10,000 [7] for legal representation in the criminal proceedings against Olga Biliak, and the second one for UAH 7,000 [8] for legal representation in the proceedings on the applicants'criminal complaints (see paragraphs 46-65). 151. The Government invited the Court to disregard the claim for costs incurred during the Convention proceedings, referring to the fact that the applicants were granted legal aid before the Court. The Government further maintained that the applicants'claim was exaggerated and not supported by the relevant documents. 152. The Court reiterates that in order for costs and expenses to be included in an award under Article 41, it must be established that they were actually and necessarily incurred in order to prevent or obtain redress for the matter found to constitute a violation of the Convention and are reasonable as to quantum (see Nilsen and Johnsen v. Norway [GC], no. 23118/93, § 62, ECHR 1999-VIII). The Court considers that these requirements have not been fully met in the instant case. In particular, it finds that the claim for reimbursement of fees for legal representation in the criminal proceedings against Olga Biliak cannot be granted since these proceedings are not related to the violations found by the Court in the present case. However, it is clear that the applicants have already bore some legal expenses, given the steps taken by their lawyers at the domestic level in the criminal proceedings following the applicant's complaints about the death of Olga Biliak. 153. Having regard to all the relevant factors, the Court awards the first applicant EUR 1,900, which, less EUR 850 received in legal aid from the Council of Europe, comes to EUR 1,050 in respect of costs and expenses, plus any tax that may be chargeable on that amount. C. Default interest 154. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 2 (right to life) of the Convention on account of the Ukrainian authorities’ failure to protect the applicants’ relative’s right to life. It found in particular that, given the vulnerability of those who were HIV-positive to other serious diseases, the applicants’ relative, refused access to a specialist hospital or the prison’s medical wing, had been provided with a striking lack of medical attention to her health problems. Indeed, although she had been suffering from numerous serious diseases, her treatment had been very basic. Furthermore, the prison management’s application for her urgent release had only been accepted after seven days and the decision to release her had then been processed with a four-day delay, during which time she had already died. Lastly, the Ukrainian Government had not contested the accuracy of a report which had concluded that inadequate medical assistance during the applicants’ relative’s detention had indirectly caused her death; nor had the Government produced any other medical evidence to refute that conclusion. The Court also concluded that Ukraine had failed to conduct an effective and independent investigation into the death, in further violation of Article 2 of the Convention. |
493 | Ineligibility for a stay of execution of one’s prison sentence and right to respect for private and family life | THE LAW 1. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 30. The applicant complained about his conditions of detention in the prisons where he had been detained. He relied on Article 3 of the Convention, which provides: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Subject of the complaint 31. In their supplementary observations on the complaint based on the conditions of detention in Giurgiu Prison the Government expressed doubts as to the reality of the complaint, submitting that the applicant had not substantiated it. 32. The applicant repeated his complaint in that regard. 33. The Court notes that the applicant was transferred to Giurgiu Prison on 30 January 2013 (see paragraph 12 above ) and that his application to the Court was communicated to the respondent Government six days later, namely on 5 February 2013 (see paragraph 4 above ). In his reply of 7 January 2014 to the Government ’ s observations the applicant, who was still in prison, said that “all the prisons” where he had been detained were overcrowded and emphasised the continuing nature of the situation. 34. The Court therefore considers that the applicant did intend to complain about his conditions of detention in Giurgiu Prison, to which he was transferred shortly before his application was communicated. 35. It also notes that, in his reply to the Government ’ s observations, the applicant raised new complaints based on certain particular aspects of his conditions of detention, relating, inter alia, to inappropriate conditions of transport and to frequent body searches. It observes that these complaints were raised after the case was communicated to the respondent Government. The Court has previously held that it is not required to rule on new complaints raised after communication and regarding which the Court has not considered it necessary to put additional questions to the Government ( see, in this regard, Enășoaie v. Romania, no. 36513/12, § 60, 4 November 201 4). Accordingly, the Court will confine its examination to the aspects of the conditions of detention described by the applicant in his application form, namely prison overcrowding and poor sanitary conditions. ... C. Merits 39. The applicant complained of prison overcrowding in the Bucharest police detention facility and in Bucharest ‑ Rahova, Mărgineni and Giurgiu Prisons. Referring to CPT reports and to reports by a Romanian non-governmental organisation, he alleged that the living space that had been available to him in those prisons had been far less than the standard recommended by the CPT. He added that there had been no hot water or heating, that the mattresses and bed linen had been dirty and the cells infested with rats, cockroaches and parasites. 40. The Government submitted that the conditions of detention in question had not exceeded the threshold of severity required for Article 3 of the Convention to apply. With regard to Giurgiu Prison in particular, they stated that the living space available to the applicant had been between 3. 39 sq. m and 3. 49 sq. m. 41. The Court reiterates that Article 3 of the Convention imposes a positive obligation on the authorities to ensure that a person is detained in conditions which are compatible with respect for their human dignity and that the manner and method of the execution of the measure do not subject them to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention ( see Kudła v. Poland [GC], no. 30210/96, § 94, ECHR 2000-XI; Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, § 141, 10 January 2012; and Enășoaie, cited above, § 46). 42. The Court has recently reiterated the relevant principles, particularly those relating to prison overcrowding and to factors capable of offsetting the lack of personal space, in Muršić v. Croatia ([GC], no. 7334/13, §§ 96-141, 20 October 2016). It has held, inter alia, that when the personal space available to a detainee falls below 3 sq. m of floor surface in multi-occupancy accommodation in prisons, the lack of personal space is considered so severe that a strong presumption of a violation of Article 3 arises. The burden of proof is on the respondent Government, which can, however, rebut that presumption by demonstrating that there were factors capable of adequately compensating for the scarce allocation of personal space ( ibid ., § 137). However, where a prison cell – measuring in the range of 3 to 4 sq. m of personal space per inmate – is at issue the space factor remains a weighty factor in the Court ’ s assessment of the adequacy of conditions of detention. In such instances a violation of Article 3 will be found if the space factor is coupled with other aspects of inappropriate physical conditions of detention related to, in particular, access to outdoor exercise, natural light or air, availability of ventilation, adequacy of room temperature, the possibility of using the toilet in private, and compliance with basic sanitary and hygienic requirements ( ibid ., § 139). 43. Applying those principles to the instant case, the Court notes that the applicant complained of overcrowding in the Bucharest police detention facility and in Bucharest- Rahova, Mărgineni and Giurgiu Prisons. It notes that, with regard to the first three prisons, the parties differ in their account both of the surface area of the cells in which the applicant was detained and the number of inmates (see paragraphs 13, 14 and 15 for the applicant ’ s version and paragraphs 17, 18 and 19 for the Government ’ s version). Be that as it may, the Court notes that, even according to the Government ’ s version, it can conclude that in all three prisons the living space available to the applicant was less than 3 sq. m. 44. Apart from the problem of prison overcrowding, the applicant ’ s allegations of poor sanitary conditions tally with the Court ’ s conclusions in similar cases concerning Bucharest- Rahova Prison ( see Geanopol v. Romania, no. 1777/06, § 62, 5 March 2013, and Constantin Aurelian Burlacu v. Romania, no. 51318/12, § 27, 10 June 2014) and Mărgineni Prison ( see Iacov Stanciu v. Romania, no. 35972/05, 24 July 2012, § 175, and Necula v. Romania, no. 33003/11, § 57, 18 February 2014). With regard to the sanitary conditions in the Bucharest police detention facility, the applicant ’ s allegations are more than plausible and reflect the realities described by the CPT in its report following visits carried out in 2010 in the Bucharest police detention facility .... 45. In these circumstances the Court cannot consider that, in respect of these three prisons, the Government have provided evidence capable of refuting the strong presumption of a violation of Article 3 as a result of affording personal space of less than 3 sq. m. 46. The Court notes that the parties disagree with regard to Giurgiu Prison. The applicant stated that he had been detained in overcrowded cells, without, however, giving details about their dimensions, whereas the Government submitted that throughout his seven months ’ detention in that prison living space of between 3.39 sq. m and 3.49 sq. m had been available to the applicant (see paragraph 20 above). However, the Court observes that it has found a violation of Article 3 of the Convention in previous cases mainly on account of lack of individual space and poor sanitary conditions in Giurgiu Prison, during a period corresponding to when the applicant was imprisoned there ( see Marian Toma v. Romania, no. 48372/09, § 33, 17 June 2014, and Adrian Radu v. Romania, no. 26089/13, § 29, 7 April 2015). It concludes from this that, apart from prison overcrowding, the applicant also had to contend with other inappropriate physical conditions of detention in that prison, particularly regarding sanitary and hygienic requirements ( see Muršić, cited above, § 139). 47. Accordingly, it considers that the conditions of detention in the prisons in question subjected the applicant to an ordeal of an intensity exceeding the unavoidable level of suffering inherent in detention. 48. Having regard to the foregoing, the Court concludes that there has been a violation of Article 3 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 14 TAKEN IN CONJUNCTION WITH ARTICLE 8 OF THE CONVENTION 49. The applicant alleged that he had been discriminated against on grounds of sex because he had been refused the possibility of obtaining a stay of execution of his prison sentence, as under Article 453 § 1 b) of the CCP only convicted mothers of children under the age of one could seek a stay of execution. He relied on Article 14 of the Convention taken in conjunction with Article 8 and on Article 1 of Protocol No. 12 to the Convention. 50. Since the Court is master of the characterisation to be given in law to the facts of the case (see, among other authorities, Guerra and Others v. Italy, 19 February 1998, § 44, Reports of Judgments and Decisions 1998 ‑ I), it considers that this complaint must be examined only under Article 14 taken in conjunction with Article 8 of the Convention (see, mutatis mutandis and with regard to conjugal visits in prison, Laduna v. Slovakia, no. 31827/02, § 54, ECHR 2011, and Varnas v. Lithuania, no. 42615/06, § 110, 9 July 2013 ). Those provisions provide: Article 8 “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” Article 14 “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” ... B. Merits 1. Submissions of the parties 60. The Government explained that at the material time the CCP provided for a stay of execution of sentence only in special circumstances personal to the person detained. They observed that the purpose of the statutory provisions in question was not to discriminate, but to take into consideration specific personal situations, including pregnancy of convicted female prisoners and the period preceding the child ’ s first birthday, which was a logical and coherent sequel to pregnancy. They based their submission on the special bonds that existed between the mother and child during the first months following birth. Referring to the Bangkok Rules adopted by the United Nations ..., they submitted that Article 453 of the CCP was in the same vein as international legal provisions designed to protect women and children. Accordingly, the situation of a woman with a child aged under one and that of a man with a child of the same age were not comparable. 61. They also stated that the principles applicable under labour law, particularly those relating to parental leave, could not apply in the present case owing to the criminal nature of the legal provisions in question. They indicated that the right to parental leave was available to persons who had worked and contributed to the social-security system. In their submission, the possibility of obtaining a stay of execution of sentence was not comparable as it amounted to a measure designed to protect the newborn child ’ s best interests and, in that area, the State enjoyed a wide margin of appreciation. The aim of a criminal provision such as Article 453 of the CCP was neither to benefit convicted prisoners nor to reduce the unpleasantness inherent in a prison sentence. 62. The Government indicated, lastly, that the domestic courts had examined the applicant ’ s requests and the supporting evidence submitted by him, given decisions that were not arbitrary and were duly reasoned and had found that the applicant ’ s family situation did not justify a stay of execution of sentence. 63. Referring to the provisions of Article 453 § 1 b) of the CCP, the applicant submitted, for his part, that he had suffered unjustified discrimination. Basing his submission on the principle of equality between parents, he argued that the presence of the father in a newborn ’ s life was just as important as that of the mother, even where the mother breastfed her child. In his submission, the father could and should contribute to the daily care of the child and thus support the mother. 2. The Court ’ s assessment a) Whether the applicant ’ s situation was comparable to that of a female prisoner with a child under the age of one 64. The Court reiterates that in order for an issue to arise under Article 14 there must be a difference in the treatment of persons in analogous or comparable situations ( see D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 175, ECHR 2007-IV). The requirement to demonstrate an analogous position does not require that the comparator groups be identical. It has to be established that the applicant, having regard to the particular nature of his complaint, was in a comparable situation to others treated differently ( see Clift v. the United Kingdom, no. 7205/07, § 66, 13 July 2010). 65. In the instant case it is not disputed between the parties that Romanian law provided for a difference in treatment between two categories of prisoners with children under the age of one : women, who could apply for a stay of execution of sentence, and men, who were not eligible for such a measure. It remains to be determined whether, with regard to an application for a stay of execution of sentence under Article 453 § 1 b) of the CCP, the applicant was in a comparable situation to that of a female prisoner with a child aged under one. 66. The Court has previously held, in an employment context, that men are in a comparable situation to women as regards parental leave and parental leave allowance ( see Petrovic, cited above, § 36, and Konstantin Markin v. Russia [GC], no. 30078/06, § 132, ECHR 2012 (extracts)). In those two cases the Court held, whilst being aware of the differences which might exist between mother and father in their relationship with the child, that as far as the role of taking care of the child during the period corresponding to parental leave was concerned ( which could extend to the child ’ s third birthday in the case of Konstantin Markin, cited above ), men and women were similarly placed. 67. The Court cannot ignore the Government ’ s submission that a difference has to be drawn between the present case and cases concerning parental leave owing to the criminal nature of the measure in issue here and the margin of appreciation enjoyed by the State in implementing its criminal-law policies ( see paragraph 61 above ). It agrees with the Government that, as a stay of execution of a custodial sentence is a criminal-law measure, it is fundamentally different from parental leave, which comes under labour law. 68. However, with regard to the question whether during the first year of the child ’ s life an imprisoned father is in a comparable situation to that of an imprisoned mother, the Court considers that the criteria which it set out in the cases of Petrovic and Konstantin Markin ( cited above ) are applicable to the instant case. As the Government themselves have conceded ( see paragraph 61 above ), the measure allowing a stay of execution of a custodial sentence has the primary aim of safeguarding the best interests of the child in order to ensure that it receives the appropriate attention and care during the first year of its life. Whilst there may be differences in their relationship with their child, both the mother and the father can provide this attention and care ( see, mutatis mutandis, Konstantin Markin, cited above, § 132). Furthermore, the Court observes that entitlement to a stay of execution of sentence continues up to the child ’ s first birthday and therefore extends beyond the period following the mother ’ s pregnancy and the birth. 69. The Court therefore considers that, with regard to the facts of the case, the applicant can claim to be in a situation comparable to that of a female prisoner. The Government ’ s arguments based on the State ’ s margin of appreciation in implementing its criminal-law policies must rather be examined from the point of view of justification for the difference in treatment ( see paragraph 78 below ). b) Whether the difference in treatment was objectively justified 70. The Court reiterates that a difference of treatment is discriminatory if it has no objective and reasonable justification, in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. The Contracting State enjoys a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment ( see Khamtokhu and Aksenchik v. Russia [GC], nos. 60367/08 and 961/11, § 64, ECHR 2017, and the cases cited therein ). 71. According to the Government, the legitimate aim pursued by the Romanian legislation in reserving exclusively to female prisoners the right to apply for a stay of execution of sentence until their child ’ s first birthday was to protect the best interests of the newborn child (see paragraph 61 above). The Government also referred to the special bonds between mother and child during the first months after the birth (see paragraph 60 above). In that connection the Court refers to its previous rulings, in cases concerning the right to respect for private and/or family life, that the child ’ s best interests must be paramount and that there is a broad consensus surrounding the idea that in all decisions concerning children their best interests must be a primary consideration ( see, mutatis mutandis, X v. Latvia [GC], no. 27853/09, §§ 95 ‑ 96, ECHR 2013, and Paradiso and Campanelli v. Italy [GC], no. 25358/12, § 208, 24 January 2017). It also takes note of the various European and international instruments addressing the needs of women for protection against gender-based violence, abuse and sexual harassment in the prison environment, as well as the needs for protection of pregnancy and motherhood .... 72. The Court next reiterates having stated on many occasions that very weighty reasons have to be put forward to justify a difference of treatment on grounds of sex, and that references to traditions, general assumptions or prevailing social attitudes in a particular country cannot in themselves constitute justification for a difference in treatment on grounds of sex, any more than similar stereotypes based on race, origin, colour or sexual orientation (see, mutatis mutandis, Konstantin Markin, cited above, § 127; X and Others v. Austria [GC], no. 19010/07, § 99, ECHR 2013; Vallianatos and Others v. Greece [GC], nos. 29381/09 and 32684/09, § 77, ECHR 2013 (extracts); and Hämäläinen v. Finland [GC], no. 37359/09, § 109, ECHR 2014 ). It has also stated that the national authorities, whose duty it is also to consider, within the limits of their jurisdiction, the interests of society as a whole, enjoy broad discretion when they are asked to make rulings on sensitive matters such as penal policy ( see Khamtokhu and Aksenchik, cited above, § 85; see also Clift, cited above, § 73, and the cases referred to therein, and Costel Gaciu v. Romania, no. 39633/10, § 56, 23 June 201 5). 73. In the present case the Court observes that the applicant sought a stay of execution of his sentence, arguing that he had a child aged under one, and that his application was dismissed by the domestic courts on the grounds that the statutory provision he relied on had to be interpreted strictly and he could not seek application of that provision by analogy (see paragraph 9 above). The Court considers that in the present case a number of factors have to be taken into consideration. Thus, as pointed out by the Government, it notes that female prisoners are not automatically granted a stay of execution of their sentence. It can be seen from the evidence produced by the parties that, when dealing with similar requests made by female prisoners, the domestic courts carried out a detailed assessment of the requests and dismissed them where the applicant ’ s personal situation did not justify a stay of execution of sentence .... 74. The Court observes next that the Romanian criminal law in force at the material time provided all prisoners, regardless of sex, with alternative means of requesting a stay of execution of sentence. The courts could, in particular, consider whether any special circumstances of execution of the sentence were liable to have serious consequences for the prisoner and also for his family or employer .... The applicant availed himself of that legal possibility, moreover, but the domestic courts ruled that the difficulties referred to by him did not fall into the category of special circumstances provided for in Article 453 § 1 c) of the CCP ( see paragraphs 9 and 11 above ). 75. It is true that the advancement of gender equality is today a major goal in the member States of the Council of Europe and very weighty reasons would have to be put forward before such a difference of treatment could be regarded as compatible with the Convention ( see, mutatis mutandis, Petrovic, cited above, § 37). 76. The Court also takes into consideration the Government ’ s submission that the aim of the statutory provisions in question was to take account of specific personal situations, including pregnancy of female prisoners and the period preceding the baby ’ s first birthday, having regard in particular to the special ties which exist between the mother and child during that period ( see paragraphs 60 and 71 above ). The Court considers that this aim can be regarded as legitimate for the purpose of Article 14 of the Convention and that the arguments advanced by the Government cannot be considered manifestly ill-founded or unreasonable. It is willing to consider that, in the specific area concerned by the present case, these considerations can constitute a sufficient basis for justifying the difference in treatment of the applicant. 77. The Court accepts that motherhood has specific features which need to be taken into consideration, sometimes by means of protective measures. It notes for example that Article 4 § 2 of the United Nations Convention on the Elimination of All Forms of Discrimination against Women expressly provides that adoption by States Parties of special measures aimed at protecting maternity shall not be considered discriminatory ... and that similar provision is made in norms of international law .... It considers that these findings are also valid where a woman is deprived of her liberty. 78. In the light of the foregoing, the Court considers that, having regard to the broad margin of appreciation afforded to the respondent State in this area, there is a reasonable relationship of proportionality between the means employed and the legitimate aim pursued. The impugned exemption does not therefore constitute a prohibited difference in treatment for the purposes of Article 14 taken in conjunction with Article 8 ( see, mutatis mutandis, Khamtokhu and Aksenchik, cited above, § 87). 79. Accordingly, the Court concludes that there has been no violation of Article 14 of the Convention taken in conjunction with Article 8. ... | The Court held, by five votes to two, that there had been no violation of Article 14 (prohibition of discrimination) read in conjunction with Article 8 (right to respect for private and family life) of the Convention as regards the applicant’s complaint about discrimination on grounds of sex. It found in particular that the impugned exclusion did not amount to a difference in treatment and that there was a reasonable relation of proportionality between the means used and the legitimate aim pursued (the best interests of the child and the special bonds between a mother and her child during the first year of the latter’s life). The Court noted, in particular, that granting female prisoners the benefit of a stay of execution of sentence was not automatic, and that the Romanian criminal law in force at the relevant time provided all prisoners, regardless of sex, with other channels for requesting a stay of execution of sentence. It also observed that the aim of the legal provisions in question had been to cater for particular personal situations, especially concerning the unique bond between mother and child during pregnancy and the first year of the baby’s life. The Court took the view that that aim could be considered legitimate within the meaning of Article 14 of the Convention, and that the Romanian Government’s submissions were not manifestly ill-founded or unreasonable. The Court therefore considered that in the particular sphere to which the present case related, those considerations might form an adequate basis to justify the difference in treatment afforded to the applicant. Motherhood presented specific characteristics which should be taken into account, among other things, by means of protective measures. |
78 | Parental authority, child custody and access rights | II. RELEVANT DOMESTIC LAW A. The 1980 Hague Convention on the Civil Aspects of International Child Abduction “the Hague Convention” 138. The preamble of the Convention includes the following statement as to its purpose: “ ...to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, ...” 139. The object of such a return is that, following the restoration of the status quo ante, the conflict between the custodian and the person who has removed or retained the child can be resolved in the State where the child is habitually resident. 140. Article 3 of the Convention reads as follows: “The removal or the retention of a child is to be considered wrongful where (a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or the retention; and (b) at the time of the removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. ...” B. Law of 17 June 2 008 amending criminal procedure 141. Section 7 (1) of the law of 17 June 2008 amending criminal procedure “the Criminal Procedure Act”) provided that an order that the case be archived must promptly be notified to the Attorney General ( procuratore del fisco ), the person charged, the victim, and the person who had pressed the charges. It must further be communicated to the executive magistrate ( “ magistrato dirigente ” ). An appeal can be lodged against such an order, by the person charged or the victim, within thirty days of its notification. The appeal shall be lodged with the Giudice delle Appellazioni Civili, who must be a different judge than the one who originally decided the merits of the cause. He or she should deliver a reasoned decision within thirty days. An order upholding the appeal application must require the investigation stage to be reopened and the magistrato dirigente must assign the case file to a new investigating judge. 142. Its section 10 regarding transitional measures provided that this law was applicable to all criminal proceedings in which notice of the crime had reached the inquiring magistrate at a date following its entry into force. The law did not apply to proceedings pending at the date of its entry into force if they were published and archived within the following nine months of its entry into force. THE LAW I. PRELIMINARY OBJECTIONS The Government ’ s preliminary objection regarding the first applicant ’ s standing also to act on her child ’ s behalf 1. The parties submissions 143. The Government submitted that the second applicant did not have standing to act in the proceedings given her young age. In order to act on behalf of her child, the first applicant should have obtained the father ’ s authorisation and/or that of the judge ( giudice tutelare ), but she had not done so. Awarding her that status could create a conflict situation in that even her father could lodge an application before the Court on her behalf. Moreover, certain aspects of her complaints, such as those relating to procedural aspects of the proceedings, could clearly have no effect on the second applicant, as she was not a party to the domestic proceedings. 144. Referring to the court ’ s case - law, the applicants submitted that the second applicant had locus standi. This was even clearer, considering that the first applicant was not only the biological mother, but also had joint custody of the child and enjoyed parental rights. 2. The third - party Government 145. The Italian Government submitted that the second applicant had full locus standi in the proceedings, on the basis of the Court ’ s case-law regarding representation by parents, particularly when the representing parent is in conflict with the authorities and is contesting their decisions in the light of the Convention provisions. 3. The Court ’ s assessment 146. The Court points out that in principle a person who is not entitled under domestic law to represent another may nevertheless, in certain circumstances, act before the Court in the name of the other person. In particular, minors can apply to the Court even, or indeed especially, if they are represented by a mother who is in conflict with the authorities and who criticises their decisions and conduct as not consistent with the rights guaranteed by the Convention. In the event of a conflict over a minor ’ s interests between a natural parent and a person appointed by the authorities to act as the child ’ s guardian, there is a danger that some of those interests will never be brought to the Court ’ s attention and that the minor will be deprived of effective protection of his or her rights under the Convention. Consequently, even where a mother has been deprived of parental rights - and indeed that is one of the causes of the dispute which she has referred to the Court - her standing as the natural mother suffices to afford her the necessary power to apply to the Court on the child ’ s behalf, too, in order to protect his or her interests. Moreover, the conditions governing individual applications are not necessarily the same as national criteria relating to locus standi. National rules in this respect may serve purposes different from those contemplated by Article 34 of the Convention and, whilst those purposes may sometimes be analogous, they need not always be so (see Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, §§ 138-39, ECHR 2000 ‑ VIII ). 147. The Court accordingly concludes that the first applicant, the natural mother who still has parental rights, the exercise/limitations of which she is disputing before the Court, has standing to act on behalf of her child, and therefore the Government ’ s preliminary objection must be dismissed. II. ALLEGED VIOLATION OF ARTICLES 8 AND 6 OF THE CONVENTION 148. The applicants complained under Article 8 about the custody proceedings, in particular about the order of 19 February 2008, and in general about the restrictions imposed on the applicants ’ visits. Under Article 6 they complained that the hearing leading to the latter decision had been unfair, and about the length of the entire proceedings. The relevant Articles, in so far as relevant, read as follows: Article 8 “1. Everyone has the right to respect for his ... family life ... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” Article 6 “In the determination of his civil rights and obligations ... everyone is entitled to a fair hearing within a reasonable time by an independent and impartial tribunal established by law.” 149. The Government contested that argument. 150. The Court reiterates that it is the master of the characterisation to be given in law to the facts of the case (see Guerra and Others v. Italy, 19 February 1998, § 44, Reports of Judgments and Decisions 1998 ‑ I ). While Article 6 affords a procedural safeguard, namely the “right to court” in the determination of one ’ s “civil rights and obligations”, Article 8 serves the wider purpose of ensuring proper respect for, inter alia, family life. In this light, the decision-making process leading to measures of interference must be fair and such as to afford due respect to the interests safeguarded by Article 8 (see Iosub Caras v. Romania, no. 7198/04, § 48, 27 July 2006, and Moretti and Benedetti v. Italy, no. 16318/07, § 27, ECHR 2010 ‑ ... (extracts) ). 151. In the instant case the Court considers that the complaint raised by the applicants under Article 6 is closely linked to their complaint under Article 8, and may accordingly be examined as part of the latter complaint. A. Admissibility 152. The Government originally objected that the complaint against the decision of 19 February 2008 was inadmissible for non-exhaustion of domestic remedies since the appeal against that decision was still pending. However, pending these proceedings, the Government informed the Court that the proceedings had ended. 153. In this light the Court considers that the objection has been withdrawn, or in any event that it is to be dismissed. The Court notes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ and third parties ’ submissions (a) The applicants ’ submissions 154. The applicants complained that they had suffered a breach of their rights under Articles 8 and 6 and of the Convention, in particular in view of the decree of 19 February 2008, where the first applicant had not been duly represented and in which the judge had based his decision solely on statements by children ’ s services and the father, notwithstanding the latter ’ s abduction of the minor. As a result, the restrictions imposed on the first applicant, together with the six-month period of isolation in San Marino, were contrary to Article 8 and the entire proceedings were unreasonably lengthy, more than four years, and that no final decision had yet been taken, contrary to Article 6. 155. In the applicants ’ view, the judicial authorities and children ’ s services were biased, as it appeared from, for example, social services ’ foregone conclusion that the second applicant would have resided in San Marino (paragraph 19 above), the decision of 18 December 2006, in favour of Mr X., containing an erroneous interpretation of a previously crystal - clear order (paragraph 15 above) and the decision of 19 February 2008 which had been arbitrary and discriminatory. They considered it inconceivable that an abduction planned with children ’ s services would have been endorsed by the judge. Similarly, the restrictions placed on the mother on the basis of her alleged intention of removing the child were unfounded, as the first applicant had shown reasons, by means of the relevant certification, why the child could not attend certain visits with Mr X. As a result of the impugned decision which found for joint custody, the first applicant could only see her daughter for a few hours (up to 11 August 2008 ), having every time to make a trip to San Marino from Italy, and unlike the father she was not able to take the child on holiday for a few days. 156. The applicants explained that during the domestic proceedings the first applicant was represented by two lawyers, only one of whom was familiar with the meeting with children ’ s services and the party ’ s experts, while the other representative had withdrawn. They submitted that, bearing in mind the issue of the child ’ s abduction and other evidence which came to light only after the date of the hearing had been fixed, of which the judge was made aware, it was crucial to have her lawyer present at that hearing. In the absence of that lawyer, the judge should at least have appointed a lawyer to represent her. Thus, the decision in question had been given in breach of the adversarial principle. 157. As to children ’ s services the applicants submitted that the person responsible for their case file only had a degree in pedagogy and not in psychology, thus could not sign in that capacity, and could not properly assess the child ’ s medical condition. Moreover, children ’ s services had not acted in such a way as to foster joint parenting, and had repeatedly refused the first applicant ’ s expert access to relevant documents and video recordings of meetings with the child. It followed that the domestic court did not exercise any supervision of the work of children ’ s services in that respect. Another supposedly independent expert, the psychologist in charge of monitoring the meetings held at X. ’ s house, was the psychologist of a committee with which relatives of X. were involved. They further submitted that their expert, a psychological consultant for the Council of the Order of Psychologists of San Marino (“the Order”), had not been in accordance with the reports drawn up by children ’ s services, which, in her view, had not been supported by scientific evidence. In this respect the expert complained to the Order, in particular about the procedures used by children ’ s services, the lack of training, their omissions and lack of co-operation. 158. Lastly, the applicants submitted that the authorities ’ actions following the lodging of the application with the European Court of Human Rights had been inappropriate. The applicants contended that following the introduction of their case before the Court, the judge in charge of the domestic proceedings had refused to continue to hear the case. She had however appointed another judge, an action which in the applicants ’ view was not consonant with her refusal to hear the case. Indeed, the unusual choice of the judge who would have been her successor in hearing the case raised doubts as to his impartiality. They noted that once they became aware of the application to the court, the CTU ’ s reports had been altered in their disfavour, and the content of the subsequent decrees had tastelessly made reference to the same. (b) The Government ’ s submissions 159. The Government submitted that the impugned decision of 1 9 February 2008, granting joint custody and holding that the second applicant should live with the father, was based on the fact that, as appeared from the expert evidence submitted by children ’ s services, there was a high level of conflict between the parents and the mother was reluctant to allow contact with the father. The Government pointed out that in June 2007 the mother had taken the child to Italy, notwithstanding the decision of 17 April 2007, which held that the child should remain in San Marino ( see paragraph 22 above ), and from 2007 the first applicant had repeatedly refused to allow contact with the father, contrary to the decree of 25 June 2007 (paragraph 29 above). Thus, the impugned decision had been taken in the best interest of the child, having considered that the father was the parent who would have allowed contact with the other parent. The court ’ s conclusion had been based on the objective findings by children ’ s services following their monitoring of the parent-child relationships, which repeatedly found that the mother was hindering the child ’ s contact with the father, to the extent that in 2009 they feared the second applicant was suffering from Parental Alienation Syndrome (paragraph 9 7 above ). 160. As to the child services, the Government submitted that according to law their function included providing residential care services ( assistenza domiciliare ) in all cases where there existed difficulties in parent-child relationships. They were judge auxiliaries /assistants, representing the institutional instrument allowing the court to acquire all the necessary elements to correctly evaluate any decision related to custody and adoption. Children ’ s services, as public employees, were subject to Public Employment Law and to supervision by the Social Security Institute. Failure to abide by the duties imposed could lead to disciplinary sanctions as imposed by law through the Disciplinary Board. Children ’ s services personnel were qualified individuals, with degrees in psychology and/or pedagogy with a two year specialisation course in Psychology or with at least five years ’ service in the health sector, who have been successful in a public competition and whose profession therefore guaranteed their independence and impartiality. Moreover, such qualities had often been confirmed by L. C. , a court expert, whose authority in child therapy was indisputable. In reply to the third- party intervener, the Government considered that the dual role carried out by children ’ s services was functional, enabling parents to reach agreements in the best interest of the child. Thus, the claims in that connection were completely unfounded and unsubstantiated. 161. The Government highlighted that the applicant had exercised all her contact rights punctually as ordered by the impugned decree, within the agreed arrangements, irrespective of her reluctance to allow contact with the father. Any cautionary measures adopted, such as the presence of the psychologist or children ’ s services, had been deemed necessary to avoid any risk of child removal, bearing in mind the first applicant ’ s prior behaviour. Such measures were in accordance with the Hague Convention on the Civil Aspects of International Child Abduction. 162. The Government further submitted that the proceedings leading to the decree had been duly notified and conducted in the presence of both parties, who were allowed to make all the relevant submissions, and the fact that one of the applicant ’ s lawyers was not able to attend was irrelevant. They further noted that one of her lawyers, who had previously relinquished his mandate, had been reinstated. The lack of organisation of the first applicant ’ s defence could not weigh against the judge ’ s decision to proceed with urgency, as had been requested by the first applicant. 163. As to the alleged impartiality of the judge, the Government submitted that notification of the application to the domestic judge and the attachment of the documents to the domestic case file served the purposes of a procedure for the abstention of the judge from the case. The judge appointed subsequently was an administrative judge, who in terms of law could also be assigned to civil cases, as also confirmed by the decision of the executive magistrate ( “ magistrato dirigente ” ) of 1 December 2010. His impartiality was crystal clear, as could be seen from the fact that he even increased the time period during which the minor was to be placed with the mother. Moreover, according to the Government, no argument could be made in relation to the father ’ s alleged kidnapping, since this issue did not appear from the children ’ s services reports or any judicial decisions. Moreover, they insisted that the father had not abducted the child but was simply on holiday with her. (c) The third - party Government ’ s submissions 164. The Italian Government firstly noted that Mr X. ’ s behaviour amounted to kidnapping, in so far as his action to take away the child and not return her to her mother according to stipulated conditions had not been authorised by a judge. They further submitted that the allegation that the first applicant had attempted to kidnap the child was not substantiated, as it was clear from the decree of 25 June 2007 (see paragraph 28 above) that the applicants were authorised to reside in Rimini, Italy. In consequence, it could not be acceptable that the first applicant ’ s contact rights were hindered by the application of the Hague Convention conditions, which did not apply to the first applicant ’ s situation. Moreover, when Mr X. started requesting that these conditions apply (February 2008) the Hague Convention was not yet applicable to issues between the two states, as it had entered into force only on 1 August 2008. 165. The Italian Government considered it deplorable that the hearing leading to the impugned decision had taken place without legal representation for the first applicant, and that the refusal of the judge to grant an adjournment for this purpose raised issues as to the fairness of the proceedings under Article 6 § 1. They reiterated that the domestic jurisdictions had to make a detailed examination of the family ’ s situation and take into consideration other elements, such as the emotional, psychological, material and medical needs of the child, as well as undertaking an overall assessment of the balance between competing interests, bearing in mind the best interests of the child. In their view a violation of Article 6 § 1 persisted, in that after nearly three years the appeal proceedings against the impugned decision had not yet been terminated. This delay was not understandable in view of the delicate situation, the best interest of the child and her rights under Article 8. Moreover, the Italian Government were of the view that the deterioration in the second applicant ’ s health from 2009 onwards could have been due to incompetence on the part of children ’ s services, as evidenced by the Associazione Pro Bimbi ’ s submissions (see below). They therefore requested the Court to examine the role played by children ’ s services in so far as they appeared to have put aside the interests of the child in favour of those of the father. 166. Lastly, they considered that the first applicant must have suffered distress at seeing her child being moved from one place of residence to another. However, her good faith towards Mr X. had been evident even by her recent agreement to allow the child to attend Mr X. ’ s wedding. The Italian Government considered that a joint custody regime should have been accompanied by a decision to have the child reside with the mother, which according to child psychology studies was a fundamental period in children of such a young age. Moreover, bearing in mind that it appeared that the second applicant was often left in the care of her paternal grandparents, the Government had trouble understanding the choice of the San Marino authorities to order residence with the father. 167. In the light of the circumstances of the case the Italian Government was of the view that the San Marino Government had violated the applicant ’ s rights under Article 8 in conjunction with Article 6. (d) The third - party intervener ’ s submissions 168. The Associazione Pro Bimbi provides, through its activities, support for parenting and the well - being of minors. It receives support from, inter alia, the Ministries of Public Instruction, Health, Justice, and Foreign Affairs. They submitted that in 2009 they had received a number of requests from separated parents in respect of their loss of parental rights and/or joint custody. Some of these cases had turned out to be extremely alarming from the point of view of the right to joint parenting and regular contact rights. These complaints mainly concerned children ’ s services. During the association ’ s discussions on child custody, strong criticisms of children ’ s services were voiced by parents, in particular in respect of their lack of qualifications and ineffective support for parents. Many spoke about their distressing experiences in trying to see their children, particularly in cases of parents with dual nationality, who publicly complained that they had faced discriminatory treatment from the services. The association therefore invited children ’ s services and the Council of the Order of Psychologists of San Marino (“the Council”) to attend subsequent sessions. Unlike the Council, children ’ s services did not send any representatives. The Council ’ s representative, in reply to questions set, confirmed that in San Marino it sufficed to have a degree in pedagogy without a further professional qualification to be employed by children ’ s services. Moreover, they were not subject to monitoring by the Council and were not bound by a code of conduct. 169. The association further cited a letter from children ’ s services in which they acknowledged that, with a total of only seven staff members and a lack of resources and funding, they were not in a position to carry out effectively their role of support for judges and protection of minors of 150 families, of whom fifty were cases of high - conflict separations which were often hard to mediate. The association also considered that it was anomalous for the staff of children ’ s services to assume conflicting roles, namely the function of public officials reporting to judges and also as mediators providing support for families and children. Concerned about the above matter, the association had sent letters to the head of the Institute for Social Security, who was in charge of children ’ s services. The latter responded that a commission of enquiry would be set up and investigations carried out. Up to the date of submissions no response had been received. 2. The Court ’ s assessment (a) General principles 170. The mutual enjoyment by parent and child of each other ’ s company constitutes a fundamental element of family life even when the relationship between the parents has broken down (see Keegan v. Ireland, 26 May 1994, § 50, Series A no. 290 ). Family life in the Contracting States encompasses a broad range of parental rights and responsibilities in regard to care and custody of minor children. The care and upbringing of children normally and necessarily require that the parents or an only parent decide where the child must reside and also impose, or authorise others to impose, various restrictions on the child ’ s liberty. Thus, the children in a school or other educational or recreational institution must abide by certain rules which limit their freedom of movement and their liberty in other respects. Likewise a child may have to be hospitalised for medical treatment. Family life in this sense, and especially the rights of parents to exercise parental authority over their children, having due regard to their corresponding parental responsibilities, is recognised and protected by the Convention, in particular by Article 8 (see Nielsen v. Denmark, 28 November 1988, § 61, Series A no. 144 ). 171. Domestic measures hindering enjoyment of family life such as a decision granting custody over children to a parent constitutes an interference with the right to respect for family life (see, for example, Hoffmann v. Austria, judgment of 23 June 1993, Series A no. 255-C, p. 58, § 29, and Palau-Martinez v. France, no. 64927/01, § 30, ECHR 2003-XII). 172. Any such interference constitutes a violation of this Article unless it is “in accordance with the law”, pursues an aim or aims that are legitimate under paragraph 2 and can be regarded as “necessary in a democratic society”. Necessity implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued (see W. v. the United Kingdom, 8 July 1987, § 60, Series A no. 121. ) 173. Although the essential object of Article 8 is to protect the individual against arbitrary interference by the public authorities, there may in addition be positive obligations inherent in an effective “ respect” for family life. These obligations may involve the adoption of measures designed to secure respect for family life even in the sphere of relations between individuals, including both the provision of a regulatory framework of adjudicatory and enforcement machinery protecting individuals ’ rights and the implementation, where appropriate, of specific steps (see Zawadka v. Poland, no. 48542/99, § 53, 23 June 2005 ). The Court has repeatedly held that Article 8 includes a right for parents to have measures taken with a view to their being reunited with their children, and an obligation on the national authorities to take such measures. This also applies to cases where contact and residence disputes concerning children arise between parents (see Kosmopoulou v. Greece, no. 60457/00, § 44, 5 February 2004 ). 174. In both the negative and positive contexts, regard must be had to the fair balance which has to be struck between the competing interests of the individual and the community, including other concerned third parties, and the State ’ s margin of appreciation (see W. v. the United Kingdom, cited above, § 59, and Keegan, cited above, § 49 ). 175. The margin of appreciation to be accorded to the competent national authorities will vary in accordance with the nature of the issues and the importance of the interests at stake. Thus, the Court recognises that the authorities enjoy a wide margin of appreciation when deciding on custody (see, inter alia, C. v. Finland, no. 18249/02, § 53, 9 May 2006 and Wildgruber v. Germany, (dec.) nos. 42402/05 and 42423/05, 29 January 2008 ). However, a stricter scrutiny is called for in respect of any further limitations, such as restrictions placed by those authorities on parental rights of contact, and of any legal safeguards designed to secure an effective protection of the right of parents and children to respect for their family life. Such further limitations entail the danger that the family relations between the parents and a young child would be effectively curtailed (see T.P. and K.M. v. the United Kingdom [GC], no. 28945/95, § 71, ECHR 2001 ‑ V (extracts). 176. Where the measures in issue concern parental disputes over their children, it is not for the Court to substitute itself for the competent domestic authorities in regulating contact and residence disputes, but rather to review under the Convention the decisions that those authorities have taken in the exercise of their power of appreciation. Undoubtedly, consideration of what lies in the best interest of the child is of crucial importance ( see Zawadka, cited above, § 54, and Hokkanen v. Finland, 23 September 1994, § 55, Series A no. 299-A). Moreover, lack of cooperation between separated parents is not a circumstance which can by itself exempt the authorities from their positive obligations under Article 8. It rather imposes on the authorities an obligation to take measures to reconcile the conflicting interests of the parties, keeping in mind the paramount interests of the child ( see Zawadka, cited above, § 67) which, depending on their nature and seriousness, may override those of the parent (see Hoppe v. Germany, no. 28422/95, § 49, 5 December 2002 ). 177. Article 8 contains no explicit procedural requirements, but this is not conclusive of the matter. The local authority ’ s decision-making process clearly cannot be devoid of influence on the substance of the decision, notably by ensuring that it is based on relevant considerations and is not one-sided, and hence neither is, nor appears to be, arbitrary. Accordingly, the Court is entitled to have regard to that process to determine whether it has been conducted in a manner that, in all the circumstances, is fair and affords due respect to the interests protected by Article 8. What has to be determined is whether, having regard to the particular circumstances of the case and notably the serious nature of the decisions to be taken, the parents have been involved in the decision-making process, seen as a whole, to a degree sufficient to provide them with the requisite protection of their interests. If they have not, there will have been a failure to respect their family life and the interference resulting from the decision will not be capable of being regarded as “necessary” within the meaning of Article 8 ( see W. v. the United Kingdom, cited above, § 62 and 64 in fine ). In conducting its review in the context of Article 8 the Court may also have regard to the length of the local authority ’ s decision-making process and of any related judicial proceedings. An effective respect for family life requires that future relations between parent and child be determined solely in the light of all relevant considerations and not by the mere passage of time ( ibid. , § 65; see also H. v. the United Kingdom, 8 July 1987, § 90, Series A no. 120 ). 178. It is of paramount importance for parents always to be placed in a position enabling them to put forward all arguments in favour of obtaining contact with the child and to have access to all relevant information which is at the disposal of the domestic courts ( see Sahin v. Germany [GC], no. 30943/96, § 71, 8 July 2003, and Kosmopoulou, cited above, § 49 ). It is, moreover, for the authorities to show that there are compelling reasons for refusing a data subject ’ s request to be provided with a copy of their personal data files ( see Tsourlakis v. Greece, no. 50796/07, § 44, 15 October 2009). (b) Application of the above principles to the present case 179. In the present case the Court notes that in December 2006 the competent national courts granted sole custody of the child to the first applicant. Six months later, in June 2007 the domestic court ordered joint custody and that the child should live and attend school for the following school year in Rimini, Italy, where she had established herself with the mother. However, by an order of 21 September 2007 the domestic courts decided that the second applicant should reside in San Marino, as Mr X. had the right to easy and unsupervised contact with his child. On 12 November 2007 joint custody was upheld as being in the best interest of the child. By a decision of 19 February 2008, the court, again upheld joint custody and ordered the child to be returned to San Marino to live with her father and to attend school there. This decision was confirmed on appeal three years later. In the meantime a number of orders had been issued on the matter, upholding joint custody and residence with the father, in San Marino. 180. The Court observes that from 2007 onwards, the first applicant ’ s rights had diminished from full custody, to a right to supervised contact, to be held in San Marino, of nearly two hours per day. Subsequently, contact hours changed to three hours on alternate days, including an overnight stay, and remained subject to the same conditions up to August 2008. Following that date contact hours increased to two to six hours per day, overnight stays, and alternate weekends with the parents, up to entire weeks over the Christmas holiday period. Most of these visits were nevertheless supervised either by the father or his legal representatives, children ’ s services or CTU experts, who videoed the meetings. 181. It has not been contested by the parties that the domestic decisions related to the applicants ’ custody and contact rights constituted interference with the applicants ’ family life which was in accordance with the law, and the Court considers that the measures pursued the legitimate aims of the protection of health or morals and/or the protection of the rights and freedoms of others, namely the child and her parents. It remains to be ascertained whether the measures were necessary in a democratic society. 182. The Court notes that in this sphere its review is not limited to ascertaining whether a respondent State exercised its discretion reasonably, carefully and in good faith. In exercising its supervisory jurisdiction, the Court cannot confine itself to considering the impugned decisions in isolation, but must look at them in the light of the case as a whole; it must determine whether the reasons adduced by the domestic courts were relevant and sufficient (see Olsson v. Sweden (no. 1), 24 March 1988, § 68, Series A no. 130 ). 183. In reviewing whether the domestic courts based their decisions on relevant grounds, the Court observes that the domestic courts persistently reiterated the best interests of the child. They based their decisions on a number of further considerations, such as the relationship between the parents, the inherent problems of joint custody in such cases, particularly were it transpired that one parent was, for the most part, hostile towards the other and hindered contact rights, the attitude and availability of the parents and the specific environments involved. In each of their decisions they relied on detailed and complete reports from the children ’ s services (see, for example, paragraphs 22, 28, 38, 50 and 77 ) which were drawn up following constant and specific requests by the domestic courts. These reports were a result of the constant monitoring performed by the service. From 2007 onwards the courts further had the benefits of reports by ex-parte counsellors and experts, and from 2008 onwards also reports by the CTU. Moreover, the parties had regularly made written and oral submissions before the court and were allowed to air all their requests and concerns, which the courts undoubtedly took into consideration. 184. In this light, the Court finds it reasonable, that the courts considered it necessary - for the protection of the child ’ s interests - not to maintain in place a sole custody order in favour of the first applicant but to award the parents ’ joint custody, neither does it appear illogical to have opted for residence with the father. It is also noted that the domestic courts did not exclude a change in regime if circumstances so required. Furthermore, the domestic courts took due care to recommend education programmes for the family and to foster the parents ’ reconciliation and co-operation in the best interest of their daughter. 185. As to contact rights, the Court has already observed the details of the regime applied (see paragraph 180 above ). It reiterates that the national authorities having the benefit of direct contact with all the persons concerned are better placed than the international judge to assess such needs. The Court considers that the measures adopted do not appear manifestly arbitrary or unfair. In consequence, it is not for the Court to enter into a detailed assessment of the most appropriate contact arrangements. It suffices for the Court to note that these rights were not denied or suppressed at any moment, the applicants having maintained constant and regular contact with each other, and the first applicant having retained joint custody over the second applicant. While supervision and often limitation as to the venue of contact meetings (the father ’ s residence), must have restricted the purpose of visits between mother and child, limiting to some extent their contact and the opportunity to develop their relationship - a matter which was in both of their interests and particularly the child ’ s, whose interest is paramount - the Court considers that monitoring by the child services was necessary to allow the domestic courts to make informed decisions as to custody and contact rights. Moreover, such monitoring also served to ensure the child ’ s well being. The Court is ready to accept that while there was no threat of violence or serious health issues (see, a contrario, Gluhaković v. Croatia, no. 21188/09, § 63, 12 April 2011 ) there could have been a risk of psychological abuse as evidenced by the suggestions that the child might develop Parent Alienation Syndrome, thus justifying the father ’ s presence at meetings. This having been said, the Court refutes the Government ’ s argument that such limitations were necessary as a precautionary measure against a possible abduction by the first applicant. The Court notes that when the first applicant moved to San Marino, she had informed the judge (see paragraph 26), similarly, when requested to submit the second applicant ’ s passport she did so (see paragraph 56). While she appeared to be more hesitant to submit the second passport, the Court notes that in the meantime it was Mr X. who had requested a second passport and who was allowed to travel with the child (see paragraphs 70 and 92). Moreover, it had been repeatedly stated by the courts that travel was banned unless authorised by it (see paragraphs 51, 70 and 99), a measure which in principle deterred unilateral decisions to take the child away. Furthermore, the Court notes that there is nothing in the case file which gives objective grounds for any fear of the applicants ’ absconding, particularly since the first applicant ’ s family lived in Rimini, not far from San Marino, and indeed any mere suspicions or fears which Mr X. might have had had neither been substantiated nor confirmed by the courts. Lastly, the Court notes that the presence of the parties ’ lawyers had not been court ordered, and indeed it was the children ’ s services that requested the court to prohibit such a practice (see paragraph 69 above). Thus, any discomfort caused in this respect could have easily been avoided by the parties ’ good will. 186. As to the applicants ’ contention that the children ’ s services were biased and unqualified, the Court considers that quite apart from the submissions made by the third-party intervener association, the matter remains unsubstantiated, and in any event the Court has not discerned any proof of the lack of effectiveness of such a service, particularly where, as in the present case, the proposals made by the service do not appear to be manifestly arbitrary or discriminatory. While it is true that the domestic courts have a duty to exercise constant vigilance, particularly as regards action taken by social services, to ensure the latter ’ s conduct does not defeat the authorities ’ decisions (see Scozzari and Giunta v. Italy [GC], cited above, § 179), the Court notes that in the present case, the applicants had ample possibilities to criticise and contest the children ’ s services qualifications, actions and findings in the contentious proceedings, as in fact the first applicant had done in relation to the children ’ s services failure to facilitate her contact rights (see paragraphs 46, 48 and 56 above). Moreover, when at issue, the domestic courts considered that the children ’ s services were made up of reliable experts (see paragraph 110 above). 187. The Court reiterates that, whilst Article 8 of the Convention contains no explicit procedural requirements, the decision-making process involved in measures of interference must be fair and such as to ensure due respect for the interests safeguarded by Article 8. In assessing whether the domestic courts ’ reasons were also sufficient for the purposes of Article 8 § 2, the Court will notably have to determine whether the decision-making process, seen as a whole, provided the first applicant with the requisite protection of her interest. 188. The Court notes that, throughout the proceedings, the applicant, represented by counsel, had the opportunity to present her arguments in writing and orally. Indeed she had presented ample submissions to the domestic courts as evidenced by the voluminous documentation submitted to the Court. As to the hearing of 19 February 2008 on the merits of her and Mr X. ’ s requests, the Court considers that given the fact that the first applicant ’ s representative had been duly notified of the date of the hearing (see paragraph 43 above), that at the actual hearing she had originally been represented by co-counsel, and that she had had the opportunity to submit written pleadings, it cannot be said that her involvement had not been effective at that stage. This is more so in view of the fact that in cases concerning a person ’ s relationship with his or her child there is a duty to exercise exceptional diligence in view of the risk that the passage of time may result in a de facto determination of the matter. In this light, and bearing in mind that the decision of 19 February 2008 only confirmed the retention of a joint custody regime which had previously been decided (see paragraphs 28 and 38 above ) the Court finds reasonable the refusal of the domestic court to adjourn the hearing. 189. As to the applicants ’ complaint that the proceedings were unreasonably lengthy, while the Court finds reprehensible that the appeal against this decision took three years to be decided (6 March 2008 to 7 March 2011), it notes that various orders were delivered and arrangements made in the meantime, and that the first applicant ’ s access rights have been regularly maintained, the calendar of visits being changed regularly by agreement of the parties and the assistance of children ’ s services. As to the overall length of the proceedings the Court notes that the first applicant intervened in the custody and contact proceedings in December 2006 and the proceedings are to date still pending. However, it is evident from the facts of the case that there have not been any significant lapses of inactivity, or adjournments for reasons related to internal organisation (see, a contrario Veljkov v. Serbia, no. 23087/07, § 88, 19 April 2011 and Wildgruber v. Germany, nos. 42402/05 and 42423/05, § 61, 21 January 2010 ). Indeed it also transpires that the parties ’ requests for urgent hearings had been immediately followed up, with the domestic courts calling on extraordinary hearings of their own motion when necessary (see, for example, paragraph 43 above). Thus, although parallel proceedings and the fact that the courts had to decide a number of ancillary matters simultaneously must have detracted from the required speediness of custody proceedings, the Court considers that overall the domestic courts appear to have dealt with the proceedings with the requisite diligence. 190. In so far as the applicant argued that she had been denied access to the proper documentation, namely that by a decision of 17 July 2008, the first applicant was denied access to the video recordings of her visits with the second applicant, the Court considers that the information contained in those recordings was pertinent to the applicants ’ relationship and could have allowed the first applicant to become aware of any apparent negative points which could have influenced the judge against her and if necessary take them into account, in future, with a view to improving the relationship with her child. The only reason given by the domestic court for such a refusal was that the applicant had no right to such materials, children ’ s services being the judge ’ s auxiliary (see paragraph 77 above). The Court is not persuaded by this reasoning and no other compelling reasons supporting their refusal to provide the video recordings have been put forward. However, it notes that nine months later the parties ’ requests for CTU recordings and all relevant documentation had been granted (see paragraph 10 4 above), thus, the first applicant could make use of such relevant information for the purposes of the proceedings which were still ongoing. Thus, the initial refusal cannot suffice to conclude that the State failed to comply with its positive obligations to ensure respect for the first applicant ’ s private and family life. 191. Lastly, as to the claims, raised in the applicants ’ observations, regarding the impartiality of the relevant judges, the Court observes, as did the appeal court, that no request for the withdrawal of such judges had been made at the relevant time. 192. Having regard to the state ’ s margin of appreciation in this sphere, and having considered the case as a whole, the Court is satisfied that the domestic courts ’ procedural approach provided adequate material on which to reach decisions based on relevant and sufficient reasons while adequately involving the first applicant in the decision-making process. 193. It follows that there has not been a violation of Article 8 of the Convention in respect of the applicants. III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 194. The applicants complained that they did not have an effective domestic remedy in respect of the second applicant ’ s abduction as a result of the tribunal ’ s decision to archive the case against Mr X. They relied on Article 13 of the Convention, which reads as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. The parties ’ submissions 195. The applicant ’ s submitted that the law referred to by the Government which came into force on 1 September 2008, provided in its Article 10 of the transitional and final rules as follows –“the present law applies to all criminal proceedings for which notice of the crime reached the investigating judge in the period after the law came into force. The present law does not apply to cases pending on the date when it came into force if they are published and filed within the following nine months.” In the present case, the proceedings against Mr X. were filed on the last possible day, thus excluding any possibility of an appeal. 196. The Government submitted that the first applicant could have lodged an appeal before the Judge of Criminal Appeals ( Giudice delle Appelazioni Penali ), against the Commissario della Legge ’ s decision of 10 June 2009 to archive the case, which, if upheld, could order the reopening of the preliminary investigation and assign it to a different inquiring magistrate. Such an action was provided for by Article 135 of the Code of Criminal Procedure as amended in 2008 and which came into force on 1 September 2008. The latter provided the accused and the injured party with the possibility of lodging an appeal within thirty days of notification of the order that no further action would be taken. The Government further submitted that the transitional provisions mentioned by the applicants were not applicable to the case in question. However, even if this were so, the decision to archive the case was delivered several days after the expiration of the nine months from its entry into force. 197. The Italian Government supported the observations submitted by the San Marino Government. B. The Court ’ s assessment 198. The Court notes that the parties disagreed as to the application of the relevant law and they have not submitted any information as to the functioning of the legal amendment in practice. Nor did the Government give an explanation as to why the transitional measures did not apply to the present case. However, the Government contended that even if they had the applicants would still have been in time to appeal. 199. Indeed, the Court observes that the transitional provisions clearly stated that the new law, providing for a right to appeal, would not apply to cases which were archived within nine months of its coming into force. It notes that the amendment to the law came into force on 1 September 2008 and the case was archived on 10 June 2009, thus more than nine months after the entry into force of the amendment. It therefore appears that in principle an appeal was available to the applicants. In the present circumstances and in the light of the submissions on the matter, the Court considers that since the applicants failed to even attempt an appeal, it would be speculative to examine whether such a remedy would have been effective. 200. It follows that this part of the complaint must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention. IV. ALLEGED VIOLATION OF ARTICLE 2 OF PROTOCOL No. 4 TO THE CONVENTION 201. The first applicant complained that from February to August 2008 the second applicant was not allowed to leave the State of San Marino, contrary to Article 2 of Protocol No. 4, which reads as follows: “1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence. 2. Everyone shall be free to leave any country, including his own. 3. No restrictions shall be placed on the exercise of these rights other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of ordre public, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. 4. The rights set forth in paragraph 1 may also be subject, in particular areas, to restrictions imposed in accordance with law and justified by the public interest in a democratic society.” 202. The Government contested that argument. A. Admissibility 203. The Government submitted that the second applicant, as a minor, did not have an autonomous right to freedom of movement, and therefore could not be considered a victim. 204. The Court makes reference to its conclusion about the second applicant ’ s victim status, above. Moreover, it notes that the rights guaranteed by this provision apply to any person, and not solely to adults. In the present case, the first applicant and Mr X. had joint custody over the second applicant. In consequence, they were in principle both authorised and capable of enabling the second applicant ’ s travel, had it not been for any restrictions imposed by the national courts. 205. It follows that the Government ’ s objection in this respect must be dismissed. 206. The Court further notes that this complaint is linked to the one examined above under Article 8 and must therefore likewise be declared admissible. B. Merits 1. The parties ’ submissions 207. The applicants submitted that although the first applicant had joint custody the second applicant ’ s movements were restricted as a result of the limitations imposed on her by the court. Indeed from 13 February 2008 up to 11 August 2008 the second applicant was confined to the territory of San Marino, for no legitimate reason. It was clear that such a measure had been granted in order to prevent Italian courts from having the jurisdiction to decide on the case. 208. The Government submitted that the applicant ’ s restrictions arose from the court decisions ordering the child to be resident with the father in San Marino and the mother ’ s contact rights to be exercised in San Marino and such a decision could not constitute a violation of the said provision. 209. The Italian Government considered that the limitations imposed on the second applicant ’ s freedom of movement, namely prohibiting her from going to Italy, had the aim of distancing the second applicant from her mother and her maternal family. They stated that the reasons put forward by children ’ s services and the CTU had been contradictory and no specific reasons had been given for the decision to keep the second applicant with the father and not with the mother, particularly in view of her tender age and needs. In consequence, in their view, there had been a violation of the second applicant ’ s rights under Article 2 of Protocol No. 4. 2. The Court ’ s assessment 210. The Court reiterates that the right of freedom of movement as guaranteed by paragraphs 1 and 2 of Article 2 of Protocol No. 4 is intended to secure to any person the right to liberty of movement within a territory and the right to leave that territory, which implies a right to leave for any country of the person ’ s choice to which he or she may be admitted. Thus, freedom of movement prohibits any measure liable to infringe that right or to restrict the exercise thereof which is not “in accordance with the law” and does not satisfy the requirement of a measure which can be considered “necessary in a democratic society” in the pursuit of the legitimate aims referred to in the third and fourth paragraph of the above-mentioned Article (see Baumann v. France, no. 33592/96, § 61, ECHR 2001 ‑ V (extracts). As regards the proportionality of the interference, the Court has particular regard to the duration of the measure in question (see Nikiforenko v. Ukraine, no. 14613/03, § 56, 18 February 2010 ). 211. The Court reiterates that an obligation to ask the authorities permission to leave each time does not correspond to the sense of the concept “freedom of movement” (see Ivanov v. Ukraine, no. 15007/02, § 85, 7 December 2006 ). The Court considers that the series of domestic decisions banning travel, and dispossessing the second applicant of her passport, in the present case, restricted the second applicant ’ s right to liberty of movement in a manner amounting to an interference, within the meaning of Article 2 of Protocol No. 4 to the Convention (see Roldan Texeira v. Italy (dec.), no. 40655/98, 26 October 2000, and Baumann, cited above, § 62 ). 212. The parties did not dispute that the decisions banning travel from the territory of San Marino in the present case were compatible with domestic procedural law and had a basis in the national legal order. 213. As to the legitimate aim cited by the Government, the Court reiterates its earlier assessment that there were no objective grounds founding any fear of the second applicant being kidnapped by her mother. Nevertheless, bearing in mind that at the relevant time San Marino was not a party to the Hague Convention, the Court recognises that the domestic courts felt bound to issue directions which could provide alternative protection against any such eventuality. In these circumstances, the Court therefore is ready to accept that the measure pursued the maintenance of “ordre public” and the protection of the rights of others. 214. The Court observes that in the present case the second applicant was confined to the territory of San Marino from at least 22 February 2008 to 11 August 2008. Bearing in mind the short duration of the restriction, the Court considers that the measure at issue was proportionate to the aim pursued (see, mutatis mutandis, Roldan Texeira, (dec.), cited above). 215. Accordingly, there has not been a violation of Article 2 of Protocol No. 4 to the Convention. V. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 216. The applicants further complained that the circumstances created by the judicial authorities, the CTU and the children services amounted to inhuman and degrading treatment, particularly as a result of the period of isolation in San Marino. Indeed, as a result, the second applicant suffered psychological distress. Moreover, the first applicant had been pressured by these entities into withdrawing her complaints against Mr X., which were eventually archived. They cited Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 217. The Court reiterates that, to fall within the scope of Article 3, the treatment in question must attain a minimum level of severity. The assessment of that minimum level is, in the nature of things, relative, and depends on all the circumstances of the case, and in particular on the nature and context of the treatment, how long it lasted, the physical and mental effects and, in some cases, on the sex, age and state of health of the person concerned. On this basis, it is not sufficient for the treatment to include some unpleasant aspects (see Bove v. Italy, (dec.) no. 30595/02, 18 November 2004). 218. The Court considers that, while the proceedings and related events have surely been a source of stress and anxiety to the applicants in the light of the circumstances of the present case, it cannot be said that they have reached the threshold proscribed by Article 3. 219. It follows that this complaint is inadmissible as manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected pursuant to Article 35 § 4 of the Convention. VI. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 220. Lastly, the applicants complained under Article 1 of Protocol No. 1, about the amount of maintenance awarded by the order of 18 May 2007, which erroneously considered that the first applicant did not need to pay rent. 221. The Court reiterates that, in accordance with Article 35 § 1 of the Convention, it can only deal with the matter if the relevant complaint is raised within a period of six months from the date on which the final decision was taken (see Debono v. Malta, (dec.) no. 34539/02, 3 May 2005). In the present case the final decision in relation to this complaint was delivered on 18 May 2007 and was therefore taken more than six months before the lodging of this application with the Court on 7 July 2008. 222. It follows that this complaint is inadmissible for non-compliance with the six -month rule set out in Article 35 § 1 of the Convention, and must be rejected pursuant to Article 35 § 4. | The Court held that there had been no violation of Article 8 (right to respect for private and family life) of the Convention. In general, the domestic courts had conducted the proceedings with due diligence; the measure in question pursued the legitimate aim of protecting the rights and freedoms of the child and his parents; the child’s best interests and the family’s particular situation had been taken into account; and a change of award had been envisaged if necessary. |
117 | Domestic violence / abuse | II. RELEVANT DOMESTIC LAW AND PRACTICE A. The Family Act 1. Relevant provisions 84. The relevant provisions of the Family Act of 2003 ( Obiteljski zakon, Official Gazette no. 163/03 with subsequent amendments – hereafter “the Family Act 2003”), which was in force between 22 July 2003 and 1 September 2014, read as follows: Third part PARENTS AND CHILDREN III. RELEVANT INTERNATIONAL LAW A. Convention on the Rights of the Child 1. Relevant provisions 94. The relevant provisions of the Convention on the Rights of the Child of 2 September 1990, which came into force in respect of Croatia on 12 October 1992, read as follows. Article 12 “1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child. 2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.” Article 19 “1. States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child. 2. Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.” 95. The Preamble of the Optional Protocol of 19 December 2011 to the Convention on the Rights of the Child on a communications procedure, which Protocol entered into force on 14 April 2014 but has not yet been ratified by Croatia, reaffirms “the status of the child as a subject of rights and as a human being with dignity and with evolving capacities”. 2. General Comment no. 8 (2006) on the right of the child to protection from corporal punishment and other cruel or degrading forms of punishment (arts. 19; 28, para. 2; and 37, inter alia) 96. The relevant part of General Comment no. 8 (2006) on the right of the child to protection from corporal punishment and other cruel or degrading forms of punishment (arts. 19; 28, para. 2; and 37, inter alia ) adopted by the Committee on the Rights of the Child at its forty-second session held from 15 May to 2 June 2006, reads as follows: “40. The principle of equal protection of children and adults from assault, including within the family, does not mean that all cases of corporal punishment of children by their parents that come to light should lead to prosecution of parents. The de minimis principle – that the law does not concern itself with trivial matters – ensures that minor assaults between adults only come to court in very exceptional circumstances; the same will be true of minor assaults on children. States need to develop effective reporting and referral mechanisms. While all reports of violence against children should be appropriately investigated and their protection from significant harm assured, the aim should be to stop parents from using violent or other cruel or degrading punishments through supportive and educational, not punitive, interventions. 41. Children ’ s dependent status and the unique intimacy of family relations demand that decisions to prosecute parents, or to formally intervene in the family in other ways, should be taken with very great care. Prosecuting parents is in most cases unlikely to be in their children ’ s best interests. It is the Committee ’ s view that prosecution and other formal interventions (for example, to remove the child or remove the perpetrator) should only proceed when they are regarded both as necessary to protect the child from significant harm and as being in the best interests of the affected child. The affected child ’ s views should be given due weight, according to his or her age and maturity. 42. Advice and training for all those involved in child protection systems, including the police, prosecuting authorities and the courts, should underline this approach to enforcement of the law. Guidance should also emphasize that article 9 of the Convention requires that any separation of the child from his or her parents must be deemed necessary in the best interests of the child and be subject to judicial review, in accordance with applicable law and procedures, with all interested parties, including the child, represented. Where separation is deemed to be justified, alternatives to placement of the child outside the family should be considered, including removal of the perpetrator, suspended sentencing, and so on.” 3. General Comment No. 12 (2009) on the right of the child to be heard (Article 12) 97. The relevant part of General Comment No. 12 (2009) on the right of the child to be heard, adopted by the Committee on the Rights of the Child at its fifty-first session held from 25 May to 12 June 2009, reads as follows. “ A. Legal analysis 15. Article 12 of the Convention establishes the right of every child to freely express her or his views, in all matters affecting her or him, and the subsequent right for those views to be given due weight, according to the child ’ s age and maturity. This right imposes a clear legal obligation on States parties to recognize this right and ensure its implementation by listening to the views of the child and according them due weight. This obligation requires that States parties, with respect to their particular judicial system, either directly guarantee this right, or adopt or revise laws so that this right can be fully enjoyed by the child. ... 1. Literal analysis of article 12 (a) Paragraph 1 of article 12 (i) ’ Shall assure ’ 19. Article 12, paragraph 1, provides that States parties ‘ shall assure ’ the right of the child to freely express her or his views. ‘ Shall assure ’ is a legal term of special strength, which leaves no leeway for State parties ’ discretion. Accordingly, States parties are under strict obligation to undertake appropriate measures to fully implement this right for all children. This obligation contains two elements in order to ensure that mechanisms are in place to solicit the views of the child in all matters affecting her or him and to give due weight to those views. (ii) ’ Capable of forming his or her own views ’ 20. States parties shall assure the right to be heard to every child ‘ capable of forming his or her own views ’. This phrase should not be seen as a limitation, but rather as an obligation for States parties to assess the capacity of the child to form an autonomous opinion to the greatest extent possible. This means that States parties cannot begin with the assumption that a child is incapable of expressing her or his own views. On the contrary, States parties should presume that a child has the capacity to form her or his own views and recognize that she or he has the right to express them; it is not up to the child to first prove her or his capacity. 21. The Committee emphasizes that article 12 imposes no age limit on the right of the child to express her or his views, and discourages States parties from introducing age limits either in law or in practice which would restrict the child ’ s right to be heard in all matters affecting her or him. ... (iv) ’ In all matters affecting the child ’ 26. States parties must assure that the child is able to express her or his views ‘ in all matters affecting ’ her or him. This represents a second qualification of this right: the child must be heard if the matter under discussion affects the child. This basic condition has to be respected and understood broadly. ... v) “Being given due weight in accordance with the age and maturity of the child” 28. The views of the child must be “given due weight in accordance with the age and maturity of the child”. This clause refers to the capacity of the child, which has to be assessed in order to give due weight to her or his views, or to communicate to the child the way in which those views have influenced the outcome of the process. Article 12 stipulates that simply listening to the child is insufficient; the views of the child have to be seriously considered when the child is capable of forming her or his own views. 30. Maturity refers to the ability to understand and assess the implications of a particular matter, and must therefore be considered when determining the individual capacity of a child. Maturity is difficult to define; in the context of article 12, it is the capacity of a child to express her or his views on issues in a reasonable and independent manner. The impact of the matter on the child must also be taken into consideration. The greater the impact of the outcome on the life of the child, the more relevant the appropriate assessment of the maturity of that child. 31. Consideration needs to be given to the notion of the evolving capacities of the child, and direction and guidance from parents .... (b) Paragraph 2 of article 12 (i) The right ‘ to be heard in any judicial and administrative proceedings affecting the child ’ 32. Article 12, paragraph 2, specifies that opportunities to be heard have to be provided in particular ‘ in any judicial and administrative proceedings affecting the child ’. The Committee emphasizes that this provision applies to all relevant judicial proceedings affecting the child, without limitation, including, for example, separation of parents, custody, care and adoption, ... ... (ii) ’ Either directly, or through a representative or an appropriate body ’ 35. After the child has decided to be heard, he or she will have to decide how to be heard: ‘ either directly, or through a representative or appropriate body ’. The Committee recommends that, wherever possible, the child must be given the opportunity to be directly heard in any proceedings. 36. The representative can be the parent(s), a lawyer, or another person (inter alia, a social worker). However, it must be stressed that in many cases (civil, penal or administrative), there are risks of a conflict of interest between the child and their most obvious representative (parent(s)). If the hearing of the child is undertaken through a representative, it is of utmost importance that the child ’ s views are transmitted correctly to the decision maker by the representative. The method chosen should be determined by the child (or by the appropriate authority as necessary) according to her or his particular situation. Representatives must have sufficient knowledge and understanding of the various aspects of the decision-making process and experience in working with children. 37. The representative must be aware that she or he represents exclusively the interests of the child and not the interests of other persons (parent(s)), institutions or bodies (e.g. residential home, administration or society). Codes of conduct should be developed for representatives who are appointed to represent the child ’ s views. ... 2. Steps for the implementation of the child ’ s right to be heard 40. Implementation of the two paragraphs of article 12 requires five steps to be taken in order to effectively realize the right of the child to be heard whenever a matter affects a child or when the child is invited to give her or his views in a formal proceeding as well as in other settings. These requirements have to be applied in a way which is appropriate for the given context. ... (c) Assessment of the capacity of the child 44. The child ’ s views must be given due weight, when a case-by-case analysis indicates that the child is capable of forming her or his own views. If the child is capable of forming her or his own views in a reasonable and independent manner, the decision maker must consider the views of the child as a significant factor in the settlement of the issue. Good practice for assessing the capacity of the child has to be developed. (d) Information about the weight given to the views of the child (the feedback) 45. Since the child enjoys the right that her or his views are given due weight, the decision maker has to inform the child of the outcome of the process and explain how her or his views were considered. The feedback is a guarantee that the views of the child are not only heard as a formality, but are taken seriously. The information may prompt the child to insist, agree or make another proposal or, in the case of a judicial or administrative procedure, file an appeal or a complaint. ... 3. Obligations of States parties ... (b) Specific obligations with regard to judicial and administrative proceedings (i) The child ’ s right to be heard in civil judicial proceedings 50. The main issues which require that the child be heard are detailed below: Divorce and separation 51. In cases of separation and divorce, the children of the relationship are unequivocally affected by decisions of the courts. Issues of maintenance for the child as well as custody and access are determined by the judge either at trial or through court-directed mediation. Many jurisdictions have included in their laws, with respect to the dissolution of a relationship, a provision that the judge must give paramount consideration to the ‘ best interests of the child ’. ... B. The right to be heard and the links with other provisions of the Convention 68. Article 12, as a general principle, is linked to the other general principles of the Convention, such as article 2 (the right to non-discrimination), article 6 (the right to life, survival and development) and, in particular, is interdependent with article 3 (primary consideration of the best interests of the child). The article is also closely linked with the articles related to civil rights and freedoms, particularly article 13 (the right to freedom of expression) and article 17 (the right to information). Furthermore, article 12 is connected to all other articles of the Convention, which cannot be fully implemented if the child is not respected as a subject with her or his own views on the rights enshrined in the respective articles and their implementation. ... 1. Articles 12 and 3 70. The purpose of article 3 is to ensure that in all actions undertaken concerning children, by a public or private welfare institution, courts, administrative authorities or legislative bodies, the best interests of the child are a primary consideration. It means that every action taken on behalf of the child has to respect the best interests of the child. The best interests of the child is similar to a procedural right that obliges States parties to introduce steps into the action process to ensure that the best interests of the child are taken into consideration. The Convention obliges States parties to assure that those responsible for these actions hear the child as stipulated in article 12. This step is mandatory. 71. The best interests of the child, established in consultation with the child, is not the only factor to be considered in the actions of institutions, authorities and administration. It is, however, of crucial importance, as are the views of the child. ... 74. There is no tension between articles 3 and 12, only a complementary role of the two general principles: one establishes the objective of achieving the best interests of the child and the other provides the methodology for reaching the goal of hearing either the child or the children. In fact, there can be no correct application of article 3 if the components of article 12 are not respected. Likewise, article 3 reinforces the functionality of article 12, facilitating the essential role of children in all decisions affecting their lives. ... E. Conclusions 135. Investment in the realization of the child ’ s right to be heard in all matters of concern to her or him and for her or his views to be given due consideration, is a clear and immediate legal obligation of States parties under the Convention. It is the right of every child without any discrimination. Achieving meaningful opportunities for the implementation of article 12 will necessitate dismantling the legal, political, economic, social and cultural barriers that currently impede children ’ s opportunity to be heard and their access to participation in all matters affecting them. It requires a preparedness to challenge assumptions about children ’ s capacities, and to encourage the development of environments in which children can build and demonstrate capacities. It also requires a commitment to resources and training. 136. Fulfilling these obligations will present a challenge for States parties. But it is an attainable goal if the strategies outlined in this general comment are systematically implemented and a culture of respect for children and their views is built.” B. European Convention on the Exercise of Children ’ s Rights 1. Relevant provisions 98. The relevant provisions of the European Convention on the Exercise of Children ’ s Rights of 25 January 1996, which came into force in respect of Croatia on 1 August 2010, read as follows. “ Chapter I – Scope and object of the Convention and definitions Article 1 – Scope and object of the Convention 1. This Convention shall apply to children who have not reached the age of 18 years. 2. The object of the present Convention is, in the best interests of children, to promote their rights, to grant them procedural rights and to facilitate the exercise of these rights by ensuring that children are, themselves or through other persons or bodies, informed and allowed to participate in proceedings affecting them before a judicial authority. 3. For the purposes of this Convention proceedings before a judicial authority affecting children are family proceedings, in particular those involving the exercise of parental responsibilities such as residence and access to children. 4. Every State shall, at the time of signature or when depositing its instrument of ratification, acceptance, approval or accession, by a declaration addressed to the Secretary General of the Council of Europe, specify at least three categories of family cases before a judicial authority to which this Convention is to apply. 5. Any Party may, by further declaration, specify additional categories of family cases to which this Convention is to apply or provide information concerning the application of Article 5, paragraph 2 of Article 9, paragraph 2 of Article 10 and Article 11. 6. Nothing in this Convention shall prevent Parties from applying rules more favourable to the promotion and the exercise of children ’ s rights. ... Chapter II – Procedural measures to promote the exercise of children ’ s rights A. Procedural rights of a child Article 3 – Right to be informed and to express his or her views in proceedings A child considered by internal law as having sufficient understanding, in the case of proceedings before a judicial authority affecting him or her, shall be granted, and shall be entitled to request, the following rights: a to receive all relevant information; b to be consulted and express his or her views; c to be informed of the possible consequences of compliance with these views and the possible consequences of any decision. ... B. Role of judicial authorities Article 6 – Decision-making process In proceedings affecting a child, the judicial authority, before taking a decision, shall: a consider whether it has sufficient information at its disposal in order to take a decision in the best interests of the child and, where necessary, it shall obtain further information, in particular from the holders of parental responsibilities; b in a case where the child is considered by internal law as having sufficient understanding: – ensure that the child has received all relevant information; – consult the child in person in appropriate cases, if necessary privately, itself or through other persons or bodies, in a manner appropriate to his or her understanding, unless this would be manifestly contrary to the best interests of the child; – allow the child to express his or her views; c give due weight to the views expressed by the child. ... Article 9 – Appointment of a representative 1. In proceedings affecting a child where, by internal law, the holders of parental responsibilities are precluded from representing the child as a result of a conflict of interest between them and the child, the judicial authority shall have the power to appoint a special representative for the child in those proceedings. 2. Parties shall consider providing that, in proceedings affecting a child, the judicial authority shall have the power to appoint a separate representative, in appropriate cases a lawyer, to represent the child. C. Role of representatives Article 10 1. In the case of proceedings before a judicial authority affecting a child the representative shall, unless this would be manifestly contrary to the best interests of the child: a provide all relevant information to the child, if the child is considered by internal law as having sufficient understanding; b provide explanations to the child if the child is considered by internal law as having sufficient understanding, concerning the possible consequences of compliance with his or her views and the possible consequences of any action by the representative; c determine the views of the child and present these views to the judicial authority. 2. Parties shall consider extending the provisions of paragraph 1 to the holders of parental responsibilities.” 2. Croatia ’ s declaration under Article 1 § 4 of the European Convention on the Exercise of Children ’ s Rights 99. On 6 April 2010, when depositing the instrument of ratification of the above Convention with the Secretary General of the Council of Europe, the Croatian Minister for Foreign Affairs made the following declarations (contained in the instrument of ratification): “In accordance with Article 1, paragraph 4, of the Convention, the Republic of Croatia designates the following categories of family cases to which this Convention is to apply before its judicial authorities: – proceedings for deciding on parental care during the divorce of parents; – proceedings for the exercise of parental care; – measures for the protection of personal rights and interests of a child; – proceedings for adoption; and – proceedings concerning guardianship of minors.” C. Council of Europe Convention on preventing and combating violence against women and domestic violence 100. The relevant Article of the Council of Europe Convention on preventing and combating violence against women and domestic violence of 25 January 1996, which entered into force on 1 August 2014 but has not yet been ratified by Croatia, read as follows: Article 3 – Definitions “For the purpose of this Convention: a “violence against women” is understood as a violation of human rights and a form of discrimination against women and shall mean all acts of gender-based violence that result in, or are likely to result in, physical, sexual, psychological or economic harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life; b “domestic violence” shall mean all acts of physical, sexual, psychological or economic violence that occur within the family or domestic unit or between former or current spouses or partners, whether or not the perpetrator shares or has shared the same residence with the victim; ...” Article 31 – Custody, visitation rights and safety “1 Parties shall take the necessary legislative or other measures to ensure that, in the determination of custody and visitation rights of children, incidents of violence covered by the scope of this Convention are taken into account. 2 Parties shall take the necessary legislative or other measures to ensure that the exercise of any visitation or custody rights does not jeopardise the rights and safety of the victim or children.” Article 45 – Sanctions and measures “1 Parties shall take the necessary legislative or other measures to ensure that the offences established in accordance with this Convention are punishable by effective, proportionate and dissuasive sanctions, taking into account their seriousness. These sanctions shall include, where appropriate, sentences involving the deprivation of liberty which can give rise to extradition. 2 Parties may adopt other measures in relation to perpetrators, such as: – monitoring or supervision of convicted persons; – withdrawal of parental rights, if the best interests of the child, which may include the safety of the victim, cannot be guaranteed in any other way.” Article 46 – Aggravating circumstances “Parties shall take the necessary legislative or other measures to ensure that the following circumstances, insofar as they do not already form part of the constituent elements of the offence, may, in conformity with the relevant provisions of internal law, be taken into consideration as aggravating circumstances in the determination of the sentence in relation to the offences established in accordance with this Convention: ... d the offence was committed against or in the presence of a child; ...” 101. The relevant part of the Explanatory Report to the Council of Europe Convention on preventing and combating violence against women and domestic violence reads as follows: Article 31 – Custody, visiting rights and safety “175. This provision aims at ensuring that judicial authorities do not issue contact orders without taking into account incidents of violence covered by the scope of this Convention. It concerns judicial orders governing the contact between children and their parents and other persons having family ties with children. In addition to other factors, incidents of violence against the non-abusive carer as much as against the child itself must be taken into account when decisions on custody and the extent of visitation rights or contact are taken. 176. Paragraph 2 addresses the complex issue of guaranteeing the rights and safety of victims and witnesses while taking into account the parental rights of the perpetrator. In particular in cases of domestic violence, issues regarding common children are often the only ties that remain between victim and perpetrator. For many victims and their children, complying with contact orders can present a serious safety risk because it often means meeting the perpetrator face-to-face. Hence, this paragraph lays out the obligation to ensure that victims and their children remain safe from any further harm.” D. Council of Europe Guidelines on child-friendly justice 102. The relevant part of the Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice, adopted by the Committee of Ministers on 17 November 2010 at the 1098th meeting of the Ministers ’ Deputies, read as follows. “ III. Fundamental principles 1. The guidelines build on the existing principles enshrined in the instruments referred to in the preamble as well as the case law of the European Court of Human Rights. 2. These principles are further developed in the following sections and should apply to all chapters of these guidelines. A. Participation 1. The right of all children to be informed about their rights, to be given appropriate ways to access justice and to be consulted and heard in proceedings involving or affecting them should be respected. This includes giving due weight to the children ’ s views bearing in mind their maturity and any communication difficulties they may have in order to make this participation meaningful. 2. Children should be considered and treated as full bearers of rights and should be entitled to exercise all their rights in a manner that takes into account their capacity to form their own views as well as the circumstances of the case. ... THE LAW I. ALLEGED VIOLATIONS OF ARTICLE 3 AND/OR ARTICLE 8 OF THE CONVENTION 104. The applicants complained that the State authorities had not complied with their procedural positive obligation under Article 3 and/or Article 8 of the Convention in that they had refused to prosecute the first applicant ’ s father for the criminal offence of child abuse he had committed against her. They also complained that the domestic authorities had not discharged their positive obligation under either of those Articles in that they had failed to remove the first applicant from her father ’ s care and thus prevent him from committing further violent acts against her. Those Articles read as follows: Article 3 (prohibition of torture) “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Article 8 (right to respect for private and family life) “1. Everyone has the right to respect for his private and family life ...” 105. The Government contested those arguments. A. Admissibility 1. The parties ’ submissions (a) The Government 106. The Government argued that in so far as the applicants complained of a breach of the authorities ’ procedural positive obligation under Article 3 of the Convention to investigate the incident of 1 February 2011, their complaints were inadmissible for non-compliance with the six-month rule. They first explained that the incident in question was to be regarded as a one-off act which had not produced any permanent consequences or a continuous situation. The Government further referred to the Court ’ s case-law, according to which in the absence of an effective remedy the six-month time-limit begins to run from the moment the event complained of occurs. That was precisely the situation in the present case, where the applicants complained that the response by the domestic authorities to the incident of 1 February 2011 had not been appropriate. 107. In any event, since the father had been punished for the incident in question by a penal order against the first applicant ’ s father on 19 April 2011, the six-month time-limit had started to run at the latest on that date, whereas the applicants had not lodged their application with the Court until 3 January 2013. 108. To the extent that the applicants complained of breaches of the authorities ’ positive obligations under Articles 3 and/or 8 of the Convention in the custody proceedings, the Government submitted that the applicants had failed to exhaust domestic remedies. In particular, the Government argued that those complaints were premature because the custody proceedings were still pending (see paragraphs 60-81 above), and that the applicants had not (fully) availed themselves of domestic remedies for the excessive length of proceedings (see paragraphs 79-80 and 92-93 above). The Government therefore invited the Court to declare those complaints inadmissible for non-exhaustion of domestic remedies, both in respect of the length of the proceedings and in respect of the other alleged breaches of positive obligations in those proceedings. (b) The applicants 109. As regards the alleged non-compliance with the six-month rule (see paragraphs 106-07 above), the applicants explained that their complaint that the domestic authorities had failed to comply with their procedural positive obligation was primarily directed against those authorities ’ refusal to prosecute the first applicant ’ s father for the criminal offence of child abuse. In that respect they had exhausted domestic remedies by taking over the prosecution as injured parties in the role of (subsidiary) prosecutors, and had lodged their application with the Court within six months of the last domestic decision rendered in that regard. 110. The applicants did not reply to the Government ’ s argument concerning non-exhaustion of domestic remedies (see paragraph 108 above) because it had been raised for the first time on 26 February 2014 in the Government ’ s comments on the applicants ’ observations of 9 December 2013. 2. The Court ’ s assessment (a) Compliance with the six-month rule 111. As regards the Government ’ s objection regarding the alleged non-compliance by the applicants with the six-month rule (see paragraphs 106-107 above), the Court first reiterates that the procedural positive obligation under Article 3 of the Convention requires States to conduct effective official investigations capable, inter alia, of leading to the punishment of those responsible (see paragraph 136 below). That being so, the Court finds it sufficient to note that the penal order of 19 April 2011, whereby the first applicant ’ s father was sentenced to a fine, was set aside and that the criminal proceedings against him are still pending (see paragraphs 37 and 51 above). Accordingly, the six-month time-limit has not even started to run yet, much less expired, as the Government suggested. It follows that the Government ’ s inadmissibility objection based on non-compliance with the six-month rule must be dismissed. (b) Non-exhaustion of domestic remedies 112. As to the Government ’ s argument that the applicants failed to pursue the domestic length-of-proceedings remedies, the Court notes that it is not the length of the proceedings which is at issue in the present case. Rather, the question is whether in the circumstances of the case seen as a whole the State could be said to have complied with certain positive obligations under Article 3 and/or 8 of the Convention (see Remetin v. Croatia, no. 29525/10, § 75, 11 December 2012 ). 113. It follows that the Government ’ s objection as regards non ‑ exhaustion of domestic remedies must be rejected. 114. To the extent that the Government ’ s non-exhaustion objection rests on the fact that the custody proceedings are still pending and that therefore the applicants ’ complaints under Article 3 and/or 8 of the Convention concerning the alleged breach of the positive obligation to prevent future violent acts against the first applicant are premature, the Court considers that this argument concerns only the merits of those complaints, rather than their admissibility. It will therefore be examined accordingly (see paragraphs 153 ‑ 62 below). 3. Conclusion as to the admissibility 115. The Court further notes that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It also notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ submissions (a) The Government 116. The Government emphasised that the documents in the case drawn up by various experts in psychiatry and psychology suggested that the first applicant was traumatised by the highly conflictual relationship of her separated parents. In particular, those experts had regarded her as a child drawn into a conflict of loyalties and thus torn between her parents, both of whom she loved. 117. Not even the diagnosis of child abuse made by a psychiatrist in the opinion of 19 February 2011 (see paragraph 19 above), on which the applicants had relied heavily in support of their allegations that the first applicant had been abused by her father, suggested otherwise. Namely, the code (T74.8) under the International Classification of Diseases the psychiatrist had used on that occasion merely indicated some form of maltreatment, without specifying whether it was physical or psychological (as such abuses were classified under different codes), or whether it had been perpetrated solely by her father. 118. As regards the alleged breach of the procedural obligation under Article 3 or 8 of the Convention, the Government argued that the domestic authorities ’ reaction to the incident of 1 February 2011 had been prompt, without any unexplained delays or obstructions, and detailed. In particular, the police had reacted immediately after the applicants had reported the incident, and had conducted interviews with all the participants and other individuals who could have had knowledge of it, and of events that had preceded it (see paragraphs 13, 15-17, 21 and 24 above). 119. As regards the alleged breach of positive obligations under Article 3 or 8 of the Convention, the Government submitted that the judicial authorities had decided promptly on the second applicant ’ s request for a provisional measure and, on the basis of an opinion given by the local social welfare centre, refused her request for an interim custody order (see paragraph 67 above). That decision had been made only after a careful examination of all the evidence presented and after establishment of all the relevant facts, with the best interests of the first applicant as the primary consideration. The first-instance court had given sufficient reasons for its decision, which thus could not be regarded as arbitrary. The Government averred in that connection that since they had heard the parties directly and examined evidence the domestic courts were in a better position than the Court to assess the evidence, establish the relevant facts, and make a decision. 120. In addition, while the custody proceedings were pending before the first-instance court, the social authorities had imposed the child protection measure of supervision of the exercise of parental authority (see paragraph 82 above), with a view to monitoring the situation in the first applicant ’ s family and reacting promptly if changed circumstances so required. 121. Furthermore, in the course of the first-instance custody proceedings an extensive psychiatric and psychological assessment had been made by forensic experts who, together with a number of other witnesses, had been examined by the first-instance court (paragraphs 66, 69 ‑ 70 and 75), with a view to establishing whether the change in the first applicant ’ s family situation justified a reversal of the custody order. 122. In particular, those experts had suggested that the behaviour of the first applicant ’ s mother (the second applicant) was unpredictable, and that she placed her needs before those of her child. It was therefore better in the given circumstances for the first applicant to continue to live with her father and his family, where she had been living since early childhood, and whose home was a better and safer environment for her development. Therefore, not only was it unnecessary to separate the first applicant from her father, but it would be counterproductive. The experts had also found that what was detrimental to the first applicant ’ s development was the conflict between her parents. All the experts and social welfare professionals had warned both parents about it, and it was the principal reason for imposing the child protection measure of supervision of the exercise of parental authority. 123. In view of the foregoing, it could not be argued that while the custody proceedings were pending the first applicant was at risk of being abused. 124. As regards the applicants ’ objections that the first applicant had not been heard in the custody proceedings, nor had a special representative (see paragraph 129 below), the Government first noted that the domestic authorities had eventually assigned her a guardian ad litem (see paragraph 73 above) whose role was to protect the first applicant ’ s interests and that, contrary to the applicants ’ view, neither the European Convention on the Exercise of Children ’ s Rights nor the domestic law provided for an obligation to assign her any other special representative (see paragraphs 84 and 98 above). Furthermore, from the latest decisions adopted in both the criminal proceedings for bodily injury and the custody proceedings (see paragraphs 47 and 77 above) it was evident that the first applicant would be given a chance to express her views. 125. In view of the foregoing arguments, the Government invited the Court to find that there had been no violation of either Article 3 or Article 8 of the Convention in the present case. (b) The applicants 126. The applicants reiterated their view (see paragraph 104 above) that prosecuting the first applicant ’ s father (only) for the criminal offence of inflicting bodily injury was not sufficient for the domestic authorities to meet their positive obligations under Articles 3 and/or 8 of the Convention. Rather, he should have been prosecuted for the criminal offence of child abuse (see paragraph 86 above). By charging the first applicant ’ s father with the less serious offence of bodily injury entailing a modest penalty the prosecuting authorities had acted in his favour. Besides, even those criminal proceedings had already been pending for more than four years, and there was no indication that they would be over soon and that he would be punished. 127. As regards the custody proceedings and the obligation to protect the first applicant from future violence by her father, the applicants argued that precisely because the domestic prosecuting and judicial authorities had failed to adequately prosecute him, judicial and social authorities and the forensic experts in the custody proceedings had been reluctant to find that the first applicant had been abused by him and to protect her from further violence by removing her from his custody. 128. The applicants in particular pointed to a flaw in the combined expert opinion of 29 December 2011, namely to the fact that the forensic experts who had prepared it had expressly refused to reply to the family court ’ s question whether the first applicant had been abused, and if so by whom (see paragraphs 66, 70 and 75 above). That shortcoming had had wider repercussions, because that expert opinion had also been consulted by the prosecuting and judicial authorities which had eventually refused the applicants ’ attempts to prosecute the first applicant ’ s father for the criminal offence of child abuse (see paragraphs 55 and 57-58 above). 129. The applicants particularly emphasised the fact that neither in the criminal proceedings nor in the custody proceedings was the first applicant heard, although the forensic experts regarded her as being of above-average intellectual capacities and she on multiple occasions before various professionals had unequivocally expressed the wish to live with her mother,even though her age and maturity so permitted. The first applicant ’ s precarious position had been further exacerbated by the fact that it took the domestic authorities more than a year and a half before she finally had a special representative assigned to her in the custody proceedings (see paragraph 73 above), as required by the European Convention on the Exercise of Children ’ s Rights (see paragraph 98 above). 130. Lastly, the applicants pointed out that the custody proceedings had, like the criminal proceedings for bodily injury, also already been pending for more than four years, and there was no indication that they would soon be completed, or what would be their outcome. Because of their inordinate length they had lost their initial purpose, and the first applicant had started exhibiting signs of psychological damage, which the applicants had wished to prevent by instituting those proceedings and removing her from her father ’ s care (see paragraph 33-34 above). 2. The Court ’ s assessment (a) As regards the first applicant 131. The Court reiterates that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the nature and context of the treatment, its duration, its physical and mental effects, and in some instances the sex, age and state of health of the victim (see, for example, A. v. the United Kingdom, 23 September 1998, § 20, Reports of Judgments and Decisions 1998 ‑ VI, and Costello-Roberts v. the United Kingdom, 25 March 1993, § 30, Series A no. 247 ‑ C). 132. Treatment has been found by the Court to be “degrading”, and thus falling within the scope of the prohibition set out in Article 3 of the Convention, if it causes in its victim feelings of fear, anguish and inferiority (see, for example, Ireland v. the United Kingdom, 18 January 1978, § 167, Series A no. 25, and Stanev v. Bulgaria [GC], no. 36760/06, § 203, ECHR 2012); if it humiliates or debases an individual (humiliation in the victim ’ s own eyes, see Raninen v. Finland, 16 December 1997, § 32, Reports of Judgments and Decisions 1997 ‑ VIII; and/or in other people ’ s eyes, see Gutsanovi v. Bulgaria, no. 34529/10, § 136, ECHR 2013 (extracts)), whether or not that was the aim (see Labita v. Italy [GC], no. 26772/95, § 120, ECHR 2000 ‑ IV ), if it breaks the person ’ s physical or psychological resistance or drives him or her to act against his or her will or conscience (see Jalloh v. Germany [GC], no. 54810/00, § 68, ECHR 2006 ‑ IX), or if it shows a lack of respect for, or diminishes, human dignity (see Svinarenko and Slyadnev v. Russia [GC], nos. 32541/08 and 43441/08, §§ 118 and 138, 17 July 2014). 133. In the present case the applicants alleged that in the period between February 2008 and April 2011 the first applicant had been exposed to physical and psychological abuse by her father (see paragraph 52 above). In particular, they claimed that the first applicant ’ s father had sworn at her, uttered vulgar expressions against her, and called her names such as “stupid” or “cow”, and that he had threatened that he would cut off her long hair and ensure that she never saw or heard from her mother. They also claimed that he had frequently forced her to eat food she did not like and, when she refused, grabbed her chin and shoved the food in her mouth. He had sometimes even smeared the food all over her face. The applicants further claimed that the first applicant ’ s father had often threatened her with physical violence, had hit her on the leg with a hairbrush on one occasion, and had sometimes grabbed her arm and squeezed it so hard that she had bruises afterwards. This had culminated in the incident of 1 February 2011, when he had allegedly hit her in the face and squeezed her throat while verbally abusing her. 134. In this connection the Court itself notes that in her statements to the police, those given before various clinical experts and those before the forensic experts who examined her in the custody proceedings, the first applicant stated on a number of occasions that she was afraid of her father (see paragraphs 15, 19-20, 23, 28-29 and 32 above). She also stated, inter alia, that when her father had smeared the food over her face she had felt embarrassed because she had been made to look ugly (see paragraph 29 above). It follows that, if the applicants ’ allegations are true, the abuse complained of instilled in the first applicant feelings of fear and shame, and on one occasion even caused her physical injury. 135. Therefore, the Court, having regard in particular to the first applicant ’ s young age (she was nine years old at the time of the incident of 1 February 2011), considers that the cumulative effect of all the above-described acts of domestic violence (see, mutatis mutandis, Sultan Öner and Others v. Turkey, no. 73792/01, § 134, 17 October 2006) would, if they were indeed perpetrated, render the treatment she was allegedly exposed to sufficiently serious to reach the threshold of severity required for Article 3 of the Convention to apply. Having regard to its case-law (see paragraph 132 above), the Court finds that such treatment could be regarded as “degrading”. 136. The Court further reiterates that Article 1 of the Convention, taken in conjunction with Article 3, imposes on States positive obligations to ensure that individuals within their jurisdiction are protected against all forms of ill-treatment prohibited under Article 3, including where such treatment is administered by private individuals. Children and other vulnerable individuals, in particular, are entitled to State protection, in the form of effective deterrence, against such serious breaches of personal integrity (see, for example, A. v. the United Kingdom, cited above, § 22, and Opuz v. Turkey, no. 33401/02, § 159, ECHR 2009, as well as the Council of Europe Recommendation on integrated national strategies for the protection of children from violence, cited in paragraph 103 above). The Court has also acknowledged the particular vulnerability of victims of domestic violence and the need for active State involvement in their protection (see Bevacqua and S. v. Bulgaria, no. 71127/01, § 65, 12 June 2008, and Opuz, cited above, § 132 ). Those positive obligations, which often overlap, consist of: (a) the obligation to prevent ill-treatment of which the authorities knew or ought to have known (see, for example, Đorđević v. Croatia, no. 41526/10, §§ 138 ‑ 139, ECHR 2012), and (b) the (procedural) obligation to conduct an effective official investigation where an individual raises an arguable claim of ill-treatment (see, for example, Dimitar Shopov v. Bulgaria, no. 17253/07, § 47, 16 April 2013 ). 137. In this connection, the Court first observes that the applicants reported the events of 1 February 2011 to the police authorities the next day. During the interview with the police the first applicant stated that her father had hit her in the face the day before, and mentioned other instances of domestic violence complained of (see paragraph 15 above). She later repeated those allegations before various clinical experts (see paragraphs 19 and 23 above), and before the forensic experts in the custody proceedings (see paragraphs 28-29 above). 138. Furthermore, the injury the first applicant allegedly sustained on 1 February 2011 was medically documented. In particular, the next day she was diagnosed by an ophthalmologist with bruising of the left lower eyelid (see paragraph 13 above). The opinion obtained from the forensic expert in the course of the criminal proceedings against the first applicant ’ s father for bodily injury states that she had indeed sustained an injury around that time and that it was possible, though not certain, that it had been inflicted in the way she had described (see paragraph 44 above). 139. As regards the remaining allegations of (mostly psychological) abuse, the Court notes that various therapists and the forensic experts in the custody proceedings established that the first applicant was a traumatised child (see paragraphs 19-20, 23, 25 and 69 above). 140. The Court, being fully aware that the manipulation of children and false accusations of child abuse are common occurrences in highly conflictual relationships between separated parents, considers that this evidence (see the three preceding paragraphs) is sufficient to render the applicants ’ claim brought before the domestic authorities that the first applicant had been abused by her father “arguable”. It was thus capable of triggering the State ’ s (procedural) positive obligation under Article 3 of the Convention to investigate. The “arguable” character of the applicants ’ claim is therefore not called into question by the fact that the Government ’ s submission relied on (see paragraphs 116-17 above) the possibility that the first applicant had been traumatised by her separated parents ’ conflictual relationship, rather than by the alleged ill-treatment by her father. 141. Likewise, once the applicants had reported to the authorities that the first applicant had been abused by her father and had presented the above evidence, those authorities must have been aware that she could be at risk of being subjected to such treatment (again). Accordingly, the State ’ s positive obligation to protect her from future ill-treatment was also engaged. 142. Having regard to the foregoing, and in particular to the fact that the first applicant is both a child and an alleged victim of domestic violence, the Court considers that the present case gave rise to the State ’ s positive obligations under Article 3 of the Convention as regards that applicant. 143. That being so, the Court considers that in so far as the first applicant complained about the State ’ s failure to discharge its positive obligations in relation to violent acts allegedly perpetrated against her by her father, her complaints under Article 8 of the Convention are absorbed by her complaints under Article 3 thereof. 144. The Court must further ascertain whether the domestic authorities complied with their positive obligations under Article 3 of the Convention. (i) As regards the alleged breach of the (procedural) positive obligation to investigate 145. As regards the positive obligation of the domestic authorities to conduct an effective official investigation into the applicants ’ allegations of ill-treatment, the Court first notes that those authorities decided to prosecute the first applicant ’ s father only for the injuries allegedly sustained during the incident of 1 February 2011 (see paragraphs 21 and 35 above). In other words, the domestic authorities decided to prosecute only what appears to be the most serious in a series of violent acts against the first applicant rather than charging her father (also) with a criminal or minor offence(s) capable of covering all the instances of ill-treatment she had allegedly sustained (see paragraphs 86-89 above), which would have enabled those authorities to address the situation in its entirety. 146. In this connection the Court also notes that under the Convention on the Rights of the Child (see Article 19 thereof and points 40-41 of the General Comment thereto, cited in paragraphs 94 and 96 above) all reports of violence against children, including those within the family, must be appropriately investigated (but not necessarily prosecuted). 147. However, even if prosecuting the first applicant ’ s father only for the criminal offence of bodily injury was not in the given circumstances contrary to the State ’ s procedural positive obligation to conduct an effective investigation into allegations of ill-treatment, the Court considers that in the present case the domestic authorities nevertheless failed to comply with that obligation. That is so because the criminal proceedings for bodily injury they did institute have so far lasted more than four years and two months, during which time the case has remained pending before the first-instance court (see paragraphs 35-51 above). 148. In this connection the Court reiterates that for the investigation required by Article 3 of the Convention to be regarded as “effective”, it must not only be capable of leading to the establishment of the facts of the case and to the identification and punishment of those responsible; a requirement of promptness and reasonable expedition is also implicit in that context (see, for example, W. v. Slovenia, no. 24125/06, § 64, 23 January 2014). Moreover, when the official investigation has led to the institution of proceedings in the national courts, the proceedings as a whole, including the trial stage, must satisfy the requirements of Article 3 of the Convention. In this respect, the Court has already held that the protection mechanisms available under domestic law should operate in practice in a manner allowing for the examination of the merits of a particular case within a reasonable time (see, for example, W. v. Slovenia, cited above, § 65). 149. In that regard the Court first notes that the first applicant ’ s father was indicted within two months of the alleged commission of the offence and that the penal order against him was issued less than a month after that (see paragraphs 35-36 above). It thus cannot but be concluded that at that stage the domestic authorities demonstrated exceptional promptness. 150. However, substantial delays occurred once the first applicant ’ s father challenged the penal order which was then automatically set aside and the criminal proceedings resumed. In particular, from the Government ’ s submission it would appear that in the period between the penal order being challenged on 4 May 2011 and the first hearing in the case being scheduled on 7 May 2013 the proceedings were at a complete standstill for two years (see paragraphs 37-38 above). The Government did not provide any explanation for that delay. 151. Further delays occurred once the trial court decided to hear the first applicant, because neither the court nor the police authorities were equipped with a video-link device (see paragraphs 47-50 above). At a time when this or similar technology is easily available, the Court finds it difficult to justify such a delay, which has so far lasted more than a year. 152. The result of these delays on the part of the domestic authorities is that in the more than four years and five months since the first applicant was injured the domestic authorities have not established by a final judicial decision whether her injuries were inflicted by her father and, if so, determined his criminal liability in that regard and imposed a penalty. In such circumstances, the Court concludes that those authorities have failed to comply with the requirement of promptness implicit in their procedural positive obligation under Article 3 of the Convention (see, a fortiori, Remetin v. Croatia (no. 2), no. 7446/12, § 120, 24 July 2014). (ii) As regards the alleged breach of the positive obligation to prevent ill-treatment 153. At the outset the Court finds it important to emphasise that the applicants did not argue that the domestic authorities had breached their positive obligation by failing to prevent the alleged acts of domestic violence against the first applicant that had already occurred. Rather, they complained that after the incident of 1 February 2011 those authorities had breached that positive obligation by leaving the first applicant in her father ’ s custody, and thus had failed to prevent the recurrence of domestic violence against her. 154. Therefore, the Court ’ s task is to determine whether since the incident of 1 February 2011 the domestic authorities have taken all reasonable measures to prevent potential ill-treatment of the first applicant by her father, that is to prevent a risk which even the applicants themselves have not argued has ever materialised. 155. In this connection the Court notes that on 30 March 2011, some two months after the incident of 1 February 2011, the second applicant instituted proceedings to have the custody order of 24 August 2007 reversed (see paragraphs 22 and 60 above) and the first applicant thereby removed from her father ’ s care. At the same time she asked the first-instance court to issue a provisional measure in the form of an interim custody order, whereby she would have been temporarily awarded custody of the first applicant (see paragraph 60 above). 156. The Court further notes that in its recommendation of 12 May 2011 the local social welfare centre stated that at the time there was nothing to suggest that by staying in her father ’ s home the first applicant would be at risk (see paragraph 65 above). Nevertheless, the centre ’ s opinion was incorrectly formulated in that the relevant risk it was required to assess was the risk of abuse of the first applicant rather than any risk to her life. 157. In this regard the Court finds it important to note that the local social welfare centre was familiar with the first applicant ’ s situation, because in the period between 7 November 2006 and 31 August 2008 it carried out a child protection measure of supervision of the exercise of parental authority in her family (see paragraph 11 above). Following the incident of 1 February 2011 the local social welfare centre again, on 22 September 2011, imposed the same measure, which lasted until 31 March 2014 (see paragraph 82 above). This means that the situation in the first applicant ’ s family was closely monitored by the social authorities during that period. Moreover, nothing in the reports of the supervising officer suggests that during that period the first applicant was, or risked being, ill-treated (see paragraph 83 above). 158. The Court also notes that some two months after the institution of custody proceedings, on 7 June 2011 the first-instance court refused the second applicant ’ s request for a provisional measure (see paragraph 67 above). In so deciding it relied primarily on the above-mentioned recommendation of the local social welfare centre, while also taking into account other evidence, in particular two conflicting opinions of clinical psychiatrists (see paragraphs 19 and 25 above) and the fact that criminal proceedings for bodily injury against the first applicant ’ s father were still pending. It follows that its refusal to order the drastic measure proposed by the second applicant (see in this connection points 40-42 of General Comment no. 8 of the Committee on the Rights of the Child in paragraph 96 above) was based on the absence of sufficient proof that the abuse had taken place and after careful consideration of all relevant materials (see, mutatis mutandis, M.P. and Others v. Bulgaria, no. 22457/08, § 115, 15 November 2011 ). 159. The combined expert opinion from forensic experts in psychiatry and psychology of 29 December 2011, obtained in the context of the same custody proceedings, stated that there were no contraindications to the first applicant ’ s continuing to live with her father (see paragraph 70 above). As regards the applicants ’ argument that those experts had not replied to the family court ’ s question whether she had been abused, and if so by whom (see paragraphs 70 and 128 above), the Court finds it evident that the experts would not have recommended that she continue living with her father if they considered that she had been at risk of ill-treatment. 160. The foregoing considerations are sufficient for the Court to find that in the period after 1 February 2011 the domestic authorities took reasonable steps to assess and weigh the risk of potential ill-treatment of the first applicant by her father and to prevent it. 161. Therefore, while the length of the custody proceedings, which have so far lasted more than four years and three months, is indeed regrettable and is relevant in a different context (see paragraphs 182-84 and 188-89 below), it is not of decisive importance in the context of this complaint, and thus cannot call into question the Court ’ s finding that the State has complied with its positive obligation to protect the first applicant from possible ill-treatment by her father (see, mutatis mutandis, M.P. and Others v. Bulgaria, cited above, § 117 ). 162. This also means that the applicants ’ complaints concerning the alleged breach of the positive obligation to prevent ill-treatment cannot be considered premature just because the custody proceedings are still pending, as the Government argued (see paragraphs 108 and 114 above). (iii) Conclusion as to the merits 163. It follows that in the present case there has been, as regards the first applicant, a violation of Article 3 of the Convention on account of the breach by the domestic authorities of their (procedural) positive obligation to conduct an effective investigation into allegations of ill-treatment, and no violation of that Article on account of their obligation to prevent such treatment. (b) As regards the second applicant 164. As regards the second applicant, the Court reiterates its finding that in the case of Đorđević v. Croatia the ill-treatment to which the second applicant ’ s son had been exposed in that case had had an adverse effect on her private and family life (see Đorđević, cited above, § 97, ECHR 2012). It also held that, by failing to put in place adequate and relevant measures to prevent further ill-treatment of her son, the State authorities had not only breached their positive obligation under Article 3 of the Convention in respect of him but also their positive obligation under Article 8 in respect of her (see Đorđević, cited above, § 153, ECHR 2012). 165. However, in the present case the Court, in view of its above finding under Article 3 of the Convention that the State has adequately discharged its positive obligation to prevent ill-treatment of the first applicant (see paragraphs 160 and 163 above), considers that the domestic authorities have also complied with their positive obligation towards the second applicant under Article 8 of the Convention. 166. Accordingly, there has been no violation of Article 8 of the Convention in the present case as regards the second applicant concerning the alleged breach of the State ’ s positive obligation to prevent violence against her daughter, the first applicant. II. OTHER ALLEGED VIOLATIONS OF ARTICLE 8 OF THE CONVENTION 167. The Court reiterates that it is master of the characterisation to be given in law to the facts of the case, and that it is not bound by the characterisation given by the applicant or the Government. By virtue of the jura novit curia principle, it has, for example, considered of its own motion complaints under Articles or paragraphs not relied on by the parties and even under a provision in respect of which the Court had declared the complaint to be inadmissible while declaring it admissible under a different one. A complaint is characterised by the facts alleged in it and not merely by the legal grounds or arguments relied on (see, for example, Şerife Yiğit v. Turkey [GC], no. 3976/05, § 52, 2 November 2010). 168. The Court reiterates that various therapists and the forensic experts in the custody proceedings have established that the first applicant is a traumatised child (see paragraphs 19-20, 23, 25, 69 and 139 above). It further notes that in her statements to the police, those given before various clinical experts, and those before the forensic experts who examined her in the custody proceedings the first applicant stated on a number of occasions that she wanted to live with her mother, the second applicant (see paragraphs 19-20, 23-24, 28, 32, 34 and 69 above). The Court also observes that in her school essay of 27 October 2014 the first applicant stated that she had started cutting herself and later explained before a clinical psychologist that she had done that, inter alia, because of “inability to manage her own time and refusal to let her live with her mother, which would make her happy” and “ because she was not allowed to choose with whom to live” (see paragraphs 33-34 above). The report of that psychologist suggests that the first applicant started self-harming because of frustration resulting from limitation of her freedom of action (see paragraph 34 above). 169. In this connection, the Court reiterates that the mutual enjoyment by parent and child of each other ’ s company constitutes a fundamental element of “family life” within the meaning of Article 8 of the Convention (see, among other authorities, Olsson v. Sweden (no. 1), 24 March 1988, § 59, Series A no. 130, and Gluhaković v. Croatia, no. 21188/09, § 54, 12 April 2011), and that the concept of “private life” within the meaning of that Article includes, inter alia, the right to personal autonomy (see, for example, Pretty v. the United Kingdom, no. 2346/02, § 61, ECHR 2002 ‑ III ) and to physical and psychological integrity (see, for example, X and Y v. the Netherlands, 26 March 1985, § 22, Series A no. 91 ). 170. In particular, in the case of Fernández Martínez v. Spain the Court, as regards the right to private and family life, stressed the importance for individuals to be able to decide freely how to conduct their private and family life, and reiterated that Article 8 also protected the right to self-fulfilment, whether in the form of personal development or from the point of view of the right to establish and develop relationships with other human beings and the outside world, the notion of personal autonomy being an important principle underlying the interpretation of the guarantees laid down in that provision (see Fernández Martínez v. Spain ([GC], no. 56030/07, § 126, ECHR 2014 (extracts)). 171. This right to personal autonomy – which in the case of adults means the right to make choices as to how to lead one ’ s own life, provided that this does not unjustifiably interfere with the rights and freedoms of others – has a different scope in the case of children. They lack the full autonomy of adults but are, nevertheless, subjects of rights (see the Preamble to the Optional Protocol [of 19 December 2011] to the Convention on the Rights of the Child [which came into force on 14 April 2014] on a communications procedure in paragraph 95 above). This circumscribed autonomy in cases of children, which gradually increases with their evolving maturity, is exercised through their right to be consulted and heard. As specified in Article 12 of the Convention on the Rights of the Child (see paragraph 94 above), a child who is capable of forming his or her own views has the right to express them and the right to have due weight given to those views, in accordance with his or her age and maturity, and, in particular, has to be provided with the opportunity to be heard in any judicial and administrative proceedings affecting him or her. 172. Having regard to the foregoing considerations, and taking the best interests of the child as a primary consideration, the Court considers that the applicants ’ complaints that the domestic authorities have been ignoring the first applicant ’ s wish to live with her mother, and the fact that she has not yet been heard in the custody proceedings, which have themselves lasted too long (see paragraphs 129-30 above), raise issues regarding the right to respect for private and family life distinct from those analysed in the context of Articles 3 and 8 of the Convention in paragraphs 153-66 above, which thus require separate examination by the Court under the latter Article. A. Admissibility 173. The Court reiterates that the Government argued that certain complaints by the applicants under Articles 3 and/or 8 of the Convention, namely those concerning the alleged breach of the positive obligation to prevent future violent acts against the first applicant, were premature because the custody proceedings were still pending (see paragraph 108 above). In the context of this part of the application, that argument constitutes an inadmissibility objection and has to be examined as such (compare with paragraph 114 above). 174. In this connection the Court reiterates that those custody proceedings have so far been pending for more than four years and three months, and notes that after three and a half years the first applicant started exhibiting self-harming behaviour, which she herself described as a reaction to the frustration resulting from the fact that she was not allowed to live with her mother, the second applicant (see paragraphs 33-34 above). The Court further reiterates that the speed of the domestic proceedings is relevant to whether a given remedy is to be deemed effective and hence necessary in terms of Article 35 § 1 of the Convention. Indeed, the excessive length of the domestic proceedings may constitute a special circumstance which would absolve the applicants from exhausting the domestic remedies at their disposal (see Šorgić v. Serbia, no. 34973/06, § 55, 3 November 2011 ). That is especially so in cases such as the present one, which concerns a continuing situation (highly) prejudicial to the first applicant ’ s private life (see, mutatis mutandis, X. v. Germany, no. 6699/74, Commission decision of 15 December 1977, Decisions and Reports 11, p. 16, at p. 24). Having regard to the particular circumstances mentioned above, the Court considers that in this case the applicants cannot be required to wait any longer for the final outcome of the custody proceedings. B. Merits 1. The parties ’ submissions 175. The arguments of the Government and the applicants reproduced in paragraphs 121-22 and 124 and in paragraphs 129-30 above, respectively, are also relevant for examining the merits of this part of the application. 2. The Court ’ s assessment (a) The first applicant 176. While the essential object of Article 8 is to protect the individual against arbitrary action by the public authorities, there may in addition be positive obligations inherent in effective “respect” for private and family life, and these obligations may involve the adoption of measures in the sphere of the relations of individuals between themselves. Children and other vulnerable individuals, in particular, are entitled to effective protection (see, for example, Bevacqua and S., cited above, § 64 ). 177. As regards the right to respect for private life, these obligations may involve the adoption of measures designed to secure that right, including both the provision of a regulatory framework of adjudicatory and enforcement machinery protecting individuals ’ rights, and the implementation, where appropriate, of specific measures (see, for example, P. and S. v. Poland, no. 57375/08, § 95, 30 October 2012). 178. As regards the right to respect for family life, these include an obligation on the national authorities to take measures with a view to reuniting parents with their children and to facilitate such reunions. This also applies to cases where contact and custody disputes concerning children arise between parents and/or other members of the children ’ s family (see, for example, Gluhaković, cited above, § 56 ). 179. The Court reiterates that ineffective, and in particular delayed, conduct of custody proceedings may give rise to a breach of positive obligations under Article 8 of the Convention (see Eberhard and M. v. Slovenia, nos. 8673/05 and 9733/05, § 127, 1 December 2009, and S.I. v. Slovenia, no. 45082/05, § 69, 13 October 2011). 180. It further reiterates that whilst Article 8 contains no explicit procedural requirements, the decision-making process must be fair and such as to afford due respect to the interests safeguarded by Article 8 (see, for example, W. v. the United Kingdom, 8 July 1987, §§ 62 and 64, Series A no. 121, and T.P. and K.M. v. the United Kingdom [GC], no. 28945/95, § 72, ECHR 2001 ‑ V (extracts)). In particular, in a number of childcare case,s the Court has examined whether the parents had been sufficiently involved in the decision-making process, with a view to establishing whether their rights under Article 8 had been violated (see, for example, W. v. the United Kingdom, cited above, §§ 62-68 and 70; Sommerfeld v. Germany [GC], no. 31871/96, §§ 66-75, ECHR 2003 ‑ VIII (extracts)); and Sahin v. Germany [GC], no. 30943/96, §§ 68-78, ECHR 2003 ‑ VIII). 181. Having regard to Article 12 of the Convention on the Rights of the Child (see paragraphs 94 and 97 above, and in particular paragraph 32 of General Comment No. 12 (2009) on the right of the child to be heard), the Court finds that the same considerations apply mutatis mutandis in any judicial or administrative proceedings affecting children ’ s rights under Article 8 of the European Convention on Human Rights. In particular, in such cases it cannot be said that the children capable of forming their own views were sufficiently involved in the decision-making process if they were not provided with the opportunity to be heard and thus express their views. 182. Turning to the present case, the Court notes that the custody proceedings have so far been pending for more than four years and three months. Having regard to its case-law (see Eberhard and M., cited above, §§ 138-42, and Kopf and Liberda v. Austria, no. 1598/06, §§ 46-49, 17 January 2012 ), the Court considers that this fact alone would be sufficient to find that the respondent State has failed to discharge its positive obligations under Article 8 of the Convention, even if the facts of the instant case had not necessitated greater promptness than that normally required in childcare cases. 183. The present case indeed called for greater promptness, because it concerns a traumatised child who, if for no other reason than the fact of her parents ’ conflictual relationship, suffered great mental anguish which culminated in self-harming behaviour. However, it would appear that the domestic courts failed to recognise the seriousness and the urgency of the situation. In particular, it appears that they did not understand that the first applicant perceived life with her mother as a way out of her precarious position, and the custody proceedings as instrumental in achieving that goal. The domestic courts therefore did not realise that the protracted character of those proceedings was exacerbating the first applicant ’ s plight. 184. The Court is particularly struck by the fact that after four years and three months the first applicant has not yet been heard in those proceedings and thus given a chance to express her views on the issue of which parent she wanted to live with. It notes that the County Court had in its decision of 15 November 2013 instructed the Municipal Court to assess whether the first applicant was able to understand the importance of the proceedings and, if so, allow her to express her opinion and take a statement from her (see paragraph 77 above), although there was nothing to call into question the presumption that the first applicant – who was at the time twelve years old – was capable of forming her own views and expressing them (see paragraph 20 of the General Comment No. 12 (2009) on the right of the child to be heard, in paragraph 97 above). In any event, more than a year and seven months have passed without steps being taken to comply even with that instruction. What is even more surprising is that no steps have been taken to accelerate the proceedings even after the first applicant started exhibiting self-harming behaviour. 185. In addition, the Court notes that under the case-law of the Croatian courts, in situations where both parents are equally fit to take care of the child, and the child is, having regard to his or her age and maturity, capable of forming his or her own views and expressing them, the child ’ s wishes as regards which parent to live with must be respected (see paragraph 85 above). The Court cannot but subscribe to that view, as it considers that otherwise the rule that the views of the child must be given due weight would be rendered meaningless. 186. The Court observes that in the present case the forensic experts in psychology and psychiatry found that the first applicant ’ s parents were equally (un)fit to take care of her (see paragraph 69 above), a view that appears to be shared by the local social welfare centre (see paragraph 83 above). Those experts also established that the first applicant expressed a strong wish to live with her mother (see paragraph 69 above). The Court further observes that both her parents live in the same town, and that a reversal of the custody order would therefore not entail the first applicant having to change school or otherwise be removed from her habitual social environment. Moreover, the first applicant, who is an A-grade pupil and whom the experts viewed as being of good or even above-average intellectual capacities (see paragraphs 19-20 above), was nine and a half years old at the start of the proceedings and is now thirteen and a half. It would thus be difficult to argue that, given her age and maturity, she is not capable of forming her own views and expressing them freely. The Court therefore finds that not respecting her wishes as regards the issue of which parent to live with would, in the specific circumstances of the present case, constitute an infringement of her right to respect for private and family life. 187. Having regard to all of the above, the Court finds that there has been a violation of Article 8 of the Convention in the present case as regards the first applicant ’ s right to respect for her private and family life. (b) The second applicant 188. The Court considers that its above findings concerning the protracted character of the custody proceedings apply equally to the second applicant (see paragraph 182). 189. There has accordingly been a violation of Article 8 of the Convention in the present case as regards the second applicant ’ s right to respect for family life. III. ALLEGED VIOLATIONS OF ARTICLE 6 § 1 AND 13 OF THE CONVENTION 190. The applicants also complained that they had neither had access to court nor an effective remedy to complain of a violation of their rights under Articles 3 and 8 of the Convention because of the refusal by the domestic authorities to allow them to pursue criminal proceedings against the first applicant ’ s father for the criminal offence of child abuse. They relied on Article 6 § 1 and Article 13 of the Convention, the relevant parts of which read as follows: Article 6 (right to a fair hearing) “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” Article 13 (right to an effective remedy) “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 191. The Court reiterates that the Convention does not guarantee a right to have criminal proceedings instituted against third persons or to have such persons convicted (see, among many other authorities, Perez v. France [GC], no. 47287/99, § 70, ECHR 2004 ‑ I, and Krzak v. Poland, no. 51515/99, § 24, 6 April 2004). 192. It follows that these complaints are incompatible ratione materiae with the provisions of the Convention within the meaning of its Article 35 § 3 and must be rejected pursuant to Article 35 § 4 thereof. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 193. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 194. The applicants each claimed 20,000 euros (EUR) in respect of non-pecuniary damage. 195. The Government contested that claim. 196. Having regard to all the circumstances of the present case, the Court accepts that the applicants suffered non-pecuniary damage which cannot be compensated for solely by the finding of a violation. Making its assessment on an equitable basis, the Court awards the first applicant EUR 19,500, to be paid to her guardian ad litem and held until such time as this sum can be administered by the first applicant herself, and the second applicant EUR 2,500 in respect of non-pecuniary damage, plus any tax that may be chargeable on those amounts. B. Costs and expenses 197. The applicants also claimed HRK 15,625 for costs and expenses incurred before the domestic authorities and HRK 27,578.47 for those incurred before the Court. 198. The Government contested these claims. 199. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the applicants jointly the sum of EUR 3,600 for the proceedings before the Court, plus any tax that may be chargeable to them. C. Default interest 200. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 3 (prohibition of inhuman and degrading treatment) of the Convention as concerned the State’s failure to investigate promptly the allegations of ill-treatment brought by the mother and child, and that there had been no violation of Article 3 as concerned the child and the State’s duty to protect her from further ill-treatment. It further found that there had been no violation of Article 8 (right to private and family life) of the Convention as concerned the mother and the State’s duty to protect her daughter from further ill-treatment, and that there had been two violations of Article 8 on account of the excessive length of the custody proceedings in respect of both mother and daughter and on account of the daughter’s lack of involvement in the custody decision-making process. The Court noted in particular substantial delays in both the criminal proceedings brought against the father as well as in the custody proceedings, both still pending after more than four years without the child ever having been interviewed in either set of proceedings. The Court was particularly struck by the fact that the child, now 13 and a half, has still not yet been heard in the custody proceedings and has thus not been given the chance to express her view before the courts about which parent she wants to live with. The protracted nature of those proceedings has exacerbated the plight of a traumatised child who, if for nothing else than her parents’ conflicting relationship, has suffered great mental anguish, culminating in self-injuring behaviour. |
648 | Lawyers | II. RELEVANT DOMESTIC AND INTERNATIONAL LAW A. Applicable domestic law on defamation 54. The relevant provisions of the Freedom of the Press Act of 29 July 1881 read as follows. Section 23 “Anyone who, by uttering speeches, cries or threats in a public place or assembly, or by means of a written or printed text, drawing, engraving, painting, emblem, image, or any other written, spoken or pictorial item sold or distributed, offered for sale or exhibited in a public place or assembly, or by means of a placard or notice exhibited in a place where it can be seen by the public, has directly and successfully incited the perpetrator or perpetrators to commit a serious crime or major offence [ crime ou délit ], and if the incitement has been acted upon, shall be punished as an accessory to the said offence. This provision shall also be applicable where the incitement has been followed only by an attempt to commit a serious crime [ crime ] under Article 2 of the Criminal Code.” Section 29 “The making of any factual allegation or imputation that damages the honour or reputation of the person or body to whom the fact in question is attributed shall constitute defamation [ diffamation ]. The direct publication or reproduction of such an allegation or imputation shall be punishable, even where it is expressed in sceptical terms or made about a person or body that is not expressly named but is identifiable by the terms of the offending speeches, shouts, threats, written or printed matter, placards or posters. The use of abusive or contemptuous language or invective not containing an allegation of any fact shall constitute an insult [ injure ].” Section 31 “Where defamation is committed by the same means by reference to the functions or capacity of one or more ministers or ministry officials, one or more members of one of the two legislative chambers, a civil servant, ..., the offence shall be punishable by the same penalty. ...” Section 41 “... No proceedings for defamation, insult or abuse shall arise from any faithful record of judicial proceedings drawn up in good faith, or from any statements made or pleadings filed in a court of law. Courts examining the merits of the case may nevertheless order the exclusion of the insulting, contemptuous or defamatory statements, and award damages against the person concerned. Defamatory allegations that are unrelated to the case may, however, give rise to criminal prosecution or civil actions by the parties, where such actions have been left open to them by the courts, and, in any event, to civil action by third parties.” Section 55 “Where the defendant wishes to be allowed to prove the veracity of the defamatory allegations, in accordance with section 35 hereof, he shall, within ten days from the service of the summons, notify the public prosecutor or the complainant, at the address for service designated thereby, depending on whether the proceedings have been initiated by the former or the latter, of: (1) The allegations as given and described in the summons of which he seeks to prove the veracity; (2) Copies of the documents; (3) The names, occupations and addresses of the witnesses he intends to call for the said purpose. The said notice shall contain the choice of the address for service in the proceedings before the criminal court, and all requirements shall be met on pain of forfeiting the right to bring evidence.” B. Code of Criminal Procedure 55. Article 11 of the Code of Criminal Procedure provides as follows: Article 11 “Except where the law provides otherwise and without prejudice to the rights of the defence, proceedings in the course of the preliminary and judicial investigations shall be conducted in secret. Any person contributing to such proceedings shall be bound by a duty of professional secrecy under the conditions and subject to the penalties set out in Articles 226-13 and 226-14 of the Criminal Code. However, in order to prevent the dissemination of incomplete or inaccurate information, or to put an end to a breach of the peace, the public prosecutor may, of his own motion or at the request of the judicial authority responsible for pre-trial investigation or the parties, make public any objective elements from the proceedings that do not convey any judgment as to the merits of the charges brought against the individuals concerned.” C. Exercise of the legal profession 56. Recommendation Rec(2000)21 of the Council of Europe’s Committee of Ministers to member States on the freedom of exercise of the profession of lawyer (adopted on 25 October 2000) states as follows. “ ... Desiring to promote the freedom of exercise of the profession of lawyer in order to strengthen the rule of law, in which lawyers take part, in particular in the role of defending individual freedoms; Conscious of the need for a fair system of administration of justice which guarantees the independence of lawyers in the discharge of their professional duties without any improper restriction, influence, inducement, pressure, threats or interference, direct or indirect, from any quarter or for any reason; ... Principle I – General Principles on the freedom of exercise of the profession of lawyer 1. All necessary measures should be taken to respect, protect and promote the freedom of exercise of the profession of lawyer without discrimination and without improper interference from the authorities or the public, in particular in the light of the relevant provisions of the European Convention on Human Rights. ...” 57. The Basic Principles on the Role of Lawyers (adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held in Havana, Cuba, from 27 August to 7 September 1990) state, in particular: “16. Governments shall ensure that lawyers (a) are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference; (b) are able to travel and to consult with their clients freely both within their own country and abroad; and (c) shall not suffer, or be threatened with, prosecution or administrative, economic or other sanctions for any action taken in accordance with recognized professional duties, standards and ethics. ... 22. Governments shall recognize and respect that all communications and consultations between lawyers and their clients within their professional relationship are confidential.” 58. The Council of Bars and Law Societies of Europe (CCBE) has adopted two founding texts: the Code of Conduct for European Lawyers, which dates back to 28 October 1988 and has undergone a number of amendments, and the Charter of Core Principles of the European Legal Profession, which was adopted on 24 November 2006. The Charter, which is not conceived as a code of conduct, contains a list of ten core principles common to the national and international rules regulating the legal profession. “(a) the independence of the lawyer, and the freedom of the lawyer to pursue the client’s case; (b) the right and duty of the lawyer to keep clients’ matters confidential and to respect professional secrecy; (c) avoidance of conflicts of interest, whether between different clients or between the client and the lawyer; (d) the dignity and honour of the legal profession, and the integrity and good repute of the individual lawyer; (e) loyalty to the client; (f) fair treatment of clients in relation to fees; (g) the lawyer’s professional competence; (h) respect towards professional colleagues; (i) respect for the rule of law and the fair administration of justice; and (j) the self-regulation of the legal profession.” 59. Lastly, there is a practical guide to the international principles concerning the independence and responsibility of judges, lawyers and prosecutors, produced by the International Commission of Jurists (initially in 2004, the most recent version being issued on 22 July 2009), which contains many significant and relevant international documents. D. Relations between judges and lawyers 60. The relevant passages of Opinion no. (2013) 16 on the relations between judges and lawyers, adopted by the Consultative Council of European Judges (CCJE) on 13-15 November 2013, read as follows. “6. Within the framework of their professional obligation to defend the rights and interests of their clients, lawyers must also play an essential role in the fair administration of justice. Paragraph 6 of the Commentary on the Charter of Core Principles of the European Legal Profession of the CCBE defines the lawyer’s role as follows: ‘The lawyer’s role, whether retained by an individual, a corporation or the state, is as the client’s trusted adviser and representative, as a professional respected by third parties, and as an indispensable participant in the fair administration of justice. By embodying all these elements, the lawyer, who faithfully serves his or her own client’s interests and protects the client’s rights, also fulfils the functions of the lawyer in Society – which are to forestall and prevent conflicts, to ensure that conflicts are resolved in accordance with recognised principles of civil, public or criminal law and with due account of rights and interests, to further the development of the law, and to defend liberty, justice and the rule of law’. As it is stated in paragraph 1.1 of the Code of Conduct for European Lawyers of the CCBE, respect for the lawyer’s professional function is an essential condition for the rule of law and democracy in society. The UN Basic Principles on the Role of Lawyers state that adequate protection of the human rights and fundamental freedoms to which all persons are entitled, be they economic, social and cultural, or civil and political, requires that all persons have effective access to legal services provided by an independent legal profession. Principle 12 stipulates that lawyers shall at all times maintain the honour and dignity of their profession as essential agents of the administration of justice. 7. Judges and lawyers must be independent in the exercise of their duties, and must also be, and be seen to be, independent from each other. This independence is affirmed by the statute and ethical principles adopted by each profession. The CCJE considers such independence vital for the proper functioning of justice. The CCJE refers to Recommendation CM/Rec (2010)12, paragraph 7, which states that the independence of judges should be guaranteed at the highest possible legal level. The independence of lawyers should be guaranteed in the same way. ... 9. Two areas of relations between judges and lawyers may be distinguished: – on the one hand, the relations between judges and lawyers which stem from the procedural principles and rules of each state and which will have a direct impact on the efficiency and quality of judicial proceedings. In the conclusions and recommendations set out in its Opinion No. 11 (2008) on the quality of judicial decisions, the CCJE pointed out that the standard of quality of judicial decisions will clearly be the result of interactions between the numerous actors in the judicial system; – on the other hand, the relations which result from the professional conduct of judges and lawyers and which require mutual respect for the roles played by each side and a constructive dialogue between judges and lawyers. ... 19. Judges and lawyers each have their own set of ethical principles. However, several ethical principles are common to both judges and lawyers, e.g. compliance with the law, professional secrecy, integrity and dignity, respect for litigants, competence, fairness and mutual respect. 20. The ethical principles of judges and lawyers should also concern themselves with the relations between the two professions. ... With regard to lawyers, paragraphs 4.1, 4.2, 4.3 and 4.4 of the CCBE Code of Conduct for European Lawyers express the following principles: a lawyer who appears, or takes part in a case, before a court or tribunal must comply with the rules of conduct applied before that court or tribunal. A lawyer must always have due regard for the fair conduct of the proceedings. A lawyer shall, while maintaining due respect and courtesy towards the court, defend the interests of the client honourably and fearlessly without regard to the lawyer’s own interests or to any consequences to him- or herself or to any other person. A lawyer shall never knowingly give false or misleading information to the court. 21. The CCJE considers that the relations between judges and lawyers should be based on the mutual understanding of each other’s role, on mutual respect and on independence vis-à-vis each other. The CCJE accordingly considers it necessary to develop dialogues and exchanges between judges and lawyers at a national and European institutional level on the issue of their mutual relations. The ethical principles of both judges and lawyers should be taken into account. In this regard, the CCJE encourages the identification of common ethical principles, such as the duty of independence, the duty to sustain the rule of law at all times, co-operation to ensure a fair and swift conduct of the proceedings and permanent professional training. Professional associations and independent governing bodies of both judges and lawyers should be responsible for this process. ... 24. Relations between judges and lawyers should always preserve the court’s impartiality and image of impartiality. Judges and lawyers should be fully conscious of this, and adequate procedural and ethical rules should safeguard this impartiality. 25. Both judges and lawyers enjoy freedom of expression under Article 10 of the Convention. Judges are, however, required to preserve the confidentiality of the court’s deliberations and their impartiality, which implies, inter alia, that they must refrain from commenting on proceedings and on the work of lawyers. The freedom of expression of lawyers also has its limits, in order to maintain, as is provided for in Article 10, paragraph 2 of the Convention, the authority and impartiality of the judiciary. Respect towards professional colleagues, respect for the rule of law and the fair administration of justice – the principles (h) and (i) of the Charter of Core Principles of the European Legal Profession of the CCBE – require abstention from abusive criticism of colleagues, of individual judges and of court procedures and decisions.” E. The decriminalisation of defamation 61. Recommendation 1814 (2007) of the Parliamentary Assembly of the Council of Europe, “Towards decriminalisation of defamation”, states, inter alia, as follows. “1. The Parliamentary Assembly, referring to its Resolution 1577 (2007) entitled ‘Towards decriminalisation of defamation’, calls on the Committee of Ministers to urge all member states to review their defamation laws and, where necessary, make amendments in order to bring them into line with the case law of the European Court of Human Rights, with a view to removing any risk of abuse or unjustified prosecutions; 2. The Assembly urges the Committee of Ministers to instruct the competent intergovernmental committee, the Steering Committee on the Media and New Communication Services (CDMC) to prepare, following its considerable amount of work on this question and in the light of the Court’s case law, a draft recommendation to member states laying down detailed rules on defamation with a view to eradicating abusive recourse to criminal proceedings. ...” 62. The response of the Committee of Ministers, adopted at the 1,029th meeting of the Ministers’ Deputies (11 June 2008), reads as follows. “1. The Committee of Ministers has studied Parliamentary Assembly Recommendation 1814 (2007) entitled ‘Towards decriminalisation of defamation’ with great attention. It has communicated the recommendation to the governments of member states as well as to the Steering Committee on the Media and New Communication Services (CDMC), the European Committee on Crime Problems (CDPC), the Steering Committee for Human Rights (CDDH) and the Council of Europe Commissioner for Human Rights, for information and possible comments. The comments received are contained in the appendix. 2. By decision of 24 November 2004, the Committee of Ministers instructed the Steering Committee on Mass Media (CDMM), which subsequently became the Steering Committee on the Media and New Communication Services (CDMC), inter alia, to look into ‘the alignment of laws on defamation with the relevant case law of the European Court of Human Rights, including the issue of decriminalisation of defamation’. It took note of the reply received in September 2006 and of the fact that the CDMC considered it desirable that member states should take a proactive approach in respect of defamation by examining, even in the absence of judgments of the European Court of Human Rights concerning them directly, domestic legislation against the standards developed by the Court and, where appropriate, aligning criminal, administrative and civil legislation with those standards. In the above-mentioned document, the CDMC also considered that steps should be taken to ensure that the application in practice of laws on defamation fully complies with those standards. 3. The Committee of Ministers endorses this view, as well as the Parliamentary Assembly’s call on member states to take such measures, with a view to removing all risk of abuse or unjustified prosecutions. 4. Bearing in mind the role of the European Court of Human Rights in developing general principles on defamation through its case law and its power to adjudicate claims of violations of Article 10 in specific cases, the Committee of Ministers does not consider it advisable at this point in time to develop separate detailed rules on defamation for member states. 5. Finally, the Committee of Ministers considers that there is no need at present to revise its Recommendation No. R (97) 20 on hate speech or to prepare guidelines on this subject. More efforts could instead be made by member states to give the recommendation more visibility and to make better use of it.” F. Judgment of the International Court of Justice (ICJ) of 4 June 2008 in the case of Djibouti v. France 63. In its judgment of 4 June 2008 in the case concerning Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), the ICJ noted that it was not its task to determine the facts and establish responsibilities in the Borrel case and, in particular, the circumstances in which Bernard Borrel had met his death, but added that the dispute between the two States had originated in that case, as a result of the opening of a number of judicial proceedings, in France and in Djibouti, and the resort to bilateral treaty mechanisms for mutual assistance between the parties. The ICJ observed in particular that, although the subject of the dispute was described in Djibouti’s application as the transmission by the French authorities of the Borrel case file to Djibouti, taken as a whole the application had a wider scope, which included the summonses sent to the Djiboutian President and those sent to two other Djiboutian officials, together with the arrest warrants subsequently issued against the latter. 64. The ICJ found, in particular, that the decision by the French investigating judge to refuse the request for mutual assistance had been justified by the fact that the transmission of the Borrel case file was considered to be “contrary to the essential interests of France”, in that the file contained declassified “defence secret” documents, together with information and witness statements in respect of another case in progress. It took the view that those reasons fell within the scope of Article 2 (c) of the Convention on Mutual Assistance in Criminal Matters, which allowed a requested State to refuse to execute letters rogatory if it considered that such assistance would be likely to prejudice the sovereignty, the security, the ordre public or other essential interests of the nation. The ICJ further decided not to order the transmission of the Borrel file with certain pages removed, as Djibouti had requested in the alternative. It held, however, that France had failed in its obligation to give reasons for its refusal to execute the letter rogatory, while rejecting Djibouti’s other submissions concerning the summonses addressed to the President and the two other senior Djiboutian officials. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 65. The applicant claimed that, before the Court of Cassation, his case had not been examined fairly by an impartial tribunal, having regard to the presence on the bench of a judge who had previously and publicly expressed his support for one of the civil parties, Judge M. He relied on Article 6 § 1 of the Convention, of which the relevant part reads as follows: “In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.” A. The Chamber judgment 66. After noting that the applicant had not been in a position to request the judge’s withdrawal, as he had not been informed before the hearing of the change in the composition of the bench that was to examine his appeal on points of law and that the procedure was mainly written, the Chamber examined the complaint in terms of objective impartiality. It noted that Judge J.M., one of the judges who had sat on the bench of the Criminal Division of the Court of Cassation ruling on an appeal from Judge M. and from the applicant stemming from a dispute between them, had, nine years earlier, publicly expressed his support for and trust in Judge M. in connection with another case in which she had been the investigating judge and the applicant had been acting for a civil party. Having regard to the facts, there was clear opposition between the applicant and Judge M., both in the case for which she had received the support of Judge J.M. and in the case in which J.M. was sitting as a judge of the Court of Cassation. Moreover, J.M.’s support had been expressed in an official and quite general context, at the general meeting of the judges of the Paris tribunal de grande instance. The Chamber found that there had been a violation of Article 6 § 1, as serious doubts could be raised as to the impartiality of the Court of Cassation and the applicant’s fears in that connection could be regarded as objectively justified. B. The parties’ submissions before the Grand Chamber 1. The applicant 67. The applicant recognised that it was not established that Judge J.M. had displayed any personal bias against him, but argued that regardless of his personal conduct, his very presence on the bench created a situation which rendered his fears objectively justified and legitimate. In his submission, the fact that J.M. had sat on the bench of the Criminal Division of the Court of Cassation sufficed in itself to show that there had been a violation of Article 6 § 1 of the Convention. Judge J.M. had in the past expressed his support for Judge M., when the latter was conducting the judicial investigation in the “Scientology” case, in response to criticisms of her professional conduct from the civil parties, whose representatives included the applicant, and by the public prosecutor. The applicant pointed out that Judge M. had ultimately been taken off the case at his request and that on 5 January 2000 the French State had been found liable for failings in the public justice system. 68. He argued that he had not been in a position to seek the withdrawal of Judge J.M., as he had not known, and could not reasonably have known, that this judge was going to sit in his case: the report of the reporting judge, the online workflow for the case and the notices to the lawyers had all given the same information, namely that the Criminal Division was to sit as a reduced bench. The reduced bench comprised the President of the Division, the senior judge ( doyen ) and the reporting judge, and as Judge J.M. occupied none of those positions he could not have been expected to sit. 69. On the merits, the applicant did not claim that Judge J.M. had displayed any personal bias against him and was not calling into question that judge’s right to freedom of expression. He complained merely of Judge J.M.’s presence on the bench, which in his view rendered his fears of a lack of impartiality objectively justified and legitimate. In view of the support expressed by J.M. in favour of Judge M. in the context of another high-profile case with the same protagonists, there was serious doubt as to the impartiality of the Criminal Division and his fears in that connection could be regarded as objectively justified. 2. The Government 70. The Government observed that there was no question of any lack of subjective impartiality on the part of Judge J.M. and that it was therefore necessary to determine whether the circumstances of the case were such as to raise serious doubts regarding the Court of Cassation’s objective impartiality. Referring to the effect of the statement made in July 2000 by Judge J.M., who at the time had been serving on the Paris tribunal de grande instance, they pointed out that the statement, made many years before the hearing of the Criminal Division, concerned a different case from the present one and that the terms used reflected a personal position which related only to the conditions in which disciplinary proceedings against a fellow judge had become known. The Government concluded that those remarks, which were limited in scope and had been made a long time before, were not sufficient to establish that, in his capacity as judge of the Court of Cassation, J.M. lacked objective impartiality. 71. The Government further stated that appeals on points of law were extraordinary remedies and that the Court of Cassation’s oversight was restricted to compliance with the law. Moreover, it was an enlarged bench of the Criminal Division, comprising ten judges, that had considered the case. 72. The Government accordingly argued that Article 6 § 1 of the Convention had not been breached. C. The Court’s assessment 1. General principles 73. The Court reiterates that impartiality normally denotes the absence of prejudice or bias and its existence or otherwise can be tested in various ways. According to the Court’s settled case-law, the existence of impartiality for the purposes of Article 6 § 1 must be determined according to a subjective test where regard must be had to the personal conviction and behaviour of a particular judge, that is, whether the judge held any personal prejudice or bias in a given case; and also according to an objective test, that is to say by ascertaining whether the tribunal itself and, among other aspects, its composition, offered sufficient guarantees to exclude any legitimate doubt in respect of its impartiality (see, for example, Kyprianou v. Cyprus [GC], no. 73797/01, § 118, ECHR 2005-XIII, and Micallef v. Malta [GC], no. 17056/06, § 93, ECHR 2009). 74. As to the subjective test, the principle that a tribunal must be presumed to be free of personal prejudice or partiality is long-established in the case-law of the Court (see Kyprianou, § 119, and Micallef, § 94, both cited above). The personal impartiality of a judge must be presumed until there is proof to the contrary (see Hauschildt v. Denmark, 24 May 1989, § 47, Series A no. 154). As regards the type of proof required, the Court has, for example, sought to ascertain whether a judge has displayed hostility or ill will for personal reasons (see De Cubber v. Belgium, 26 October 1984, § 25, Series A no. 86). 75. In the vast majority of cases raising impartiality issues the Court has focused on the objective test (see Micallef, cited above, § 95). However, there is no watertight division between subjective and objective impartiality since the conduct of a judge may not only prompt objectively held misgivings as to impartiality from the point of view of the external observer (objective test) but may also go to the issue of his or her personal conviction (subjective test) (see Kyprianou, cited above, § 119). Thus, in some cases where it may be difficult to procure evidence with which to rebut the presumption of the judge’s subjective impartiality, the requirement of objective impartiality provides a further important guarantee (see Pullar v. the United Kingdom, 10 June 1996, § 32, Reports of Judgments and Decisions 1996-III). 76. As to the objective test, it must be determined whether, quite apart from the judge’s conduct, there are ascertainable facts which may raise doubts as to his or her impartiality. This implies that, in deciding whether in a given case there is a legitimate reason to fear that a particular judge or a body sitting as a bench lacks impartiality, the standpoint of the person concerned is important but not decisive. What is decisive is whether this fear can be held to be objectively justified (see Micallef, cited above, § 96). 77. The objective test mostly concerns hierarchical or other links between the judge and other protagonists in the proceedings (ibid., § 97). It must therefore be decided in each individual case whether the relationship in question is of such a nature and degree as to indicate a lack of impartiality on the part of the tribunal (see Pullar, cited above, § 38). 78. In this connection even appearances may be of a certain importance or, in other words, “justice must not only be done, it must also be seen to be done” (see De Cubber, cited above, § 26). What is at stake is the confidence which the courts in a democratic society must inspire in the public. Thus, any judge in respect of whom there is a legitimate reason to fear a lack of impartiality must withdraw (see Castillo Algar v. Spain, 28 October 1998, § 45, Reports 1998-VIII, and Micallef, cited above, § 98). 2. Application of those principles in the present case 79. In the present case, the fear of a lack of impartiality lay in the fact that Judge J.M., who sat on the Court of Cassation bench which adopted the judgment of 10 December 2009, had expressed his support for Judge M. nine years earlier, in the context of disciplinary proceedings that had been brought against her on account of her conduct in the “Scientology” case. Speaking as a judge and a colleague in the same court, in the course of a general meeting of judges of the Paris tribunal de grande instance on 4 July 2000, at which he had subsequently voted in favour of the motion of support for Judge M., J.M. had stated: “We are not prohibited, as grassroots judges, from saying that we stand by Judge [M.]. It is not forbidden to say that Judge [M.] has our support and trust” (see paragraphs 27-28 above). 80. The Grand Chamber notes at the outset that the applicant acknowledged in his observations that it was not established that Judge J.M. had displayed any personal bias against him. He argued merely that regardless of his personal conduct, the very presence of J.M. on the bench created a situation which rendered his fears objectively justified and legitimate (see paragraph 67 above). 81. In the Court’s view, the case must therefore be examined from the perspective of the objective impartiality test, and more specifically it must address the question whether the applicant’s doubts, stemming from the specific situation, may be regarded as objectively justified in the circumstances of the case. 82. Accordingly, the Court firstly takes the view that the language used by Judge J.M. in support of a fellow judge, Judge M., who was precisely responsible for the bringing of criminal proceedings against the applicant in the case now in issue, was capable of raising doubts in the defendant’s mind as to the impartiality of the “tribunal” hearing his case. 83. Admittedly, the Government argued in their observations, among other things, that the remarks by J.M. were not sufficient to establish a lack of objective impartiality on his part, as they had been made a long time before and the words used reflected a personal position which concerned only the conditions in which the information regarding the bringing of disciplinary proceedings against a colleague of the same court had been forthcoming. 84. The Court takes the view, however, that the very singular context of the case cannot be overlooked. It would firstly point out that the case concerned a lawyer and a judge, who had been serving in that capacity in connection with two judicial investigations in particularly high-profile cases: the Borrel case, in the context of which the applicant’s impugned remarks had been made, and the “Scientology” case, which had given rise to the remarks by J.M. It further notes, like the Chamber, that Judge M. was already conducting the investigation in the Borrel case, with its significant media coverage and political repercussions, when J.M. publicly expressed his support for her in the context of the “Scientology” case (see also paragraph 29 above). As emphasised by the Chamber, J.M. had then expressed his view in an official setting, at the general meeting of judges of the Paris tribunal de grande instance. 85. The Court further observes that the applicant, who in both cases was the lawyer acting for civil parties who criticised the work of Judge M., was subsequently convicted on the basis of a complaint by the latter: accordingly, the professional conflict took on the appearance of a personal conflict, as Judge M. had applied to the domestic courts seeking redress for damage stemming from an offence that she accused the applicant of having committed. 86. The Court would further emphasise, on that point, that the judgment of the Court of Appeal to which the case had been remitted itself expressly established a connection between the applicant’s remarks in the proceedings in question and the “Scientology” case, concluding that this suggested, on the part of the applicant, an “ ex post facto settling of scores” and personal animosity towards Judge M., “with whom he had been in conflict in various cases” (see paragraph 50 above). 87. It was precisely that judgment of the Court of Appeal which the applicant appealed against on points of law and which was examined by the bench of the Criminal Division of the Court of Cassation on which Judge J.M. sat. The Court does not agree with the Government’s argument to the effect that this situation does not raise any difficulty, since an appeal on points of law is an extraordinary remedy and the review by the Court of Cassation is limited solely to the observance of the law. 88. In its case-law the Court has emphasised the crucial role of cassation proceedings, which form a special stage of the criminal proceedings with potentially decisive consequences for the accused, as in the present case, because if the case had been quashed it could have been remitted to a different court of appeal for a fresh examination of both the facts and the law. As the Court has stated on many occasions, Article 6 § 1 of the Convention does not compel the Contracting States to set up courts of appeal or of cassation, but a State which does institute such courts is required to ensure that persons having access to the law enjoy before such courts the fundamental guarantees in Article 6 (see, among other authorities, Delcourt v. Belgium, 17 January 1970, § 25, Series A no. 11; Omar v. France, 29 July 1998, § 41, Reports 1998-V; Guérin v. France, 29 July 1998, § 44, Reports 1998-V; and Louis v. France, no. 44301/02, § 27, 14 November 2006), and this unquestionably includes the requirement that the court must be impartial. 89. Lastly, the Court takes the view that the Government’s argument to the effect that J.M. was sitting on an enlarged bench comprising ten judges is not decisive for the objective-impartiality issue under Article 6 § 1 of the Convention. In view of the secrecy of the deliberations, it is impossible to ascertain J.M.’s actual influence on that occasion. Therefore, in the context thus described (see paragraphs 84-86 above), the impartiality of that court could have been open to genuine doubt. 90. Furthermore, the applicant had not been informed that Judge J.M. would be sitting on the bench and had no reason to believe that he would do so. The Court notes that the applicant had, by contrast, been notified that the case would be examined by a reduced bench of the Criminal Division of the Court of Cassation, as is confirmed by the reporting judge’s report, the Court of Cassation’s online workflow for the case and three notices to parties, including two that were served after the date of the hearing (see paragraph 52 above). The applicant thus had no opportunity to challenge J.M.’s presence or to make any submissions on the issue of impartiality in that connection. 91. Having regard to the foregoing, the Court finds that in the present case the applicant’s fears could have been considered objectively justified. 92. The Court therefore concludes that there has been a violation of Article 6 § 1 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 93. The applicant alleged that his criminal conviction had entailed a violation of his right to freedom of expression as provided for by Article 10 of the Convention, which reads as follows: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” A. The Chamber judgment 94. The Chamber found that there had been no violation of Article 10 of the Convention. It noted that the applicant had not confined himself to factual statements concerning the ongoing proceedings, but had accompanied them with value judgments which cast doubt on the impartiality and fairness of a judge. 95. The Chamber, after noting that the investigating judge in question was no longer handling the case, took the view, firstly, that the applicant should have waited for the outcome of his request addressed the previous day to the Minister of Justice seeking an investigation by the General Inspectorate of Judicial Services into the alleged numerous shortcomings in the judicial investigation and, secondly, that the applicant had already successfully used a legal remedy to seek to cure any defects in the proceedings and the judge concerned by his remarks had been taken off the case. In view of the foregoing and the use of terms that the Chamber found particularly harsh, it took the view that the applicant had overstepped the limits that lawyers had to observe in publicly criticising the justice system. It added that its conclusion was reinforced by the seriousness of the accusations made in the article, and that, also having regard to the chronology of the events, it could be inferred that the applicant’s remarks were driven by a degree of personal animosity towards the judge. As to the “proportionality” of the sanction, the Chamber found that a fine of EUR 4,000, together with an award of EUR 7,500 in damages to each of the judges, did not appear excessive. B. The parties’ submissions before the Grand Chamber 1. The applicant 96. The applicant argued that the Court’s case-law guaranteed strong protection to the freedom of expression of lawyers, who played a key role in the administration of justice and the upholding of the rule of law, with any restriction having to remain exceptional. Such protection could be explained by two reasons: firstly, no special circumstances could justify affording a wide margin of appreciation to States, bearing in mind that European and international texts, on the contrary, protected lawyers in the activity of defending their clients; secondly, their freedom of expression was linked to their clients’ right to a fair trial under Article 6 of the Convention. He further observed that the right of lawyers to make press statements as part of their clients’ defence was expressly acknowledged and that, in principle, there was, at European level, significant tolerance of lawyers’ criticism of judges, even when made in a public and media setting. He submitted, however, that the Chamber judgment highlighted some major uncertainties and vagaries in the case-law that affected the exercise of such freedom, especially outside the courtroom. He hoped that his case would enable the Grand Chamber to clarify the interpretation of the Convention on that point and to secure the protection of lawyers’ speech. 97. He proposed in this connection a formal approach to lawyers’ freedom of expression, based on the defence and interests of their clients, to ensure special protection in this context for the purposes of Article 10 of the Convention. Such an approach would also have the effect of dispelling the ambiguity surrounding the status of lawyers, who participated in the smooth running of the justice system but, on the other hand, did not have to adopt a conciliatory posture vis-à-vis that system and its members, as their primary role was to defend their clients. Being a key witness to the proceedings, lawyers should be afforded a functional protection that was not limited to the courtroom and was as broad as possible, in order to contribute effectively to defending their clients and informing the public. Such a functional approach would also make it possible to take effective action in response to any excesses and abuses committed by lawyers in breach of professional ethics and to preserve the necessary protection of judges from frivolous accusations. Any abuse of the primary purpose of the strengthened protection of the lawyer’s freedom of expression, namely to uphold the rights of the defence, could thus entail sanctions. 98. In the present case, the applicant observed that his conviction could be regarded as an interference with the exercise of his right to freedom of expression. He did not dispute the fact that it was prescribed by law, namely by sections 23, 29 and 31 of the Act of 29 July 1881. 99. Whilst he did not deny, either, that it pursued the legitimate aim of the protection of the reputation or rights of others, in his view the idea that the criminal proceedings against him sought to “maintain the authority and impartiality of the judiciary” should be seriously called into question, as the impugned remarks were, on the contrary, intended to strengthen, rather than undermine, such authority. The applicant further submitted that the Chamber had wrongly placed on the same footing, on the one hand, the freedom of expression of lawyers and the public’s right to be informed about matters of general interest, and on the other, the dignity of the legal profession and the good reputation of judges; while the former were rights guaranteed by Article 10 of the Convention, the latter were merely interests that might warrant a restriction, which had to remain exceptional. 100. As to the interference and whether it was necessary in a democratic society, the applicant took the view that it did not correspond to any pressing social need and that it was not proportionate to the aims pursued. 101. The argument that there was no pressing social need was mainly supported by the context in which the remarks were made, because the case had received significant media coverage, as the Court had previously noted in its judgment in July and SARL Libération v. France (no. 20893/03, ECHR 2008) and as confirmed by the Chamber in paragraph 76 of its judgment. In addition, the status of the victim, the place and circumstances of his death, the diplomatic ramifications of the case, and the suspicions that the current President of the Republic of Djibouti might have been involved as the instigator, all showed that the case concerned a matter of general interest requiring strong protection of freedom of expression. Moreover, on 19 June 2007 the Paris public prosecutor had issued a press release stating that the theory of suicide had now been discounted in favour of a criminal explanation. That statement had been made at the request of the investigating judge under Article 11, paragraph 3, of the Code of Criminal Procedure (permitting the public disclosure of details of the case to avoid the dissemination of incomplete or inaccurate information, or to put an end to a breach of public order). The case was so sensitive that the investigation was now being handled by three investigating judges. 102. The applicant argued that the remarks regarding the shortcomings in the justice system, in the context of the lawyer’s duty to defend a client, could be deemed to merit even stronger protection. He denied going beyond the limits of permissible criticism: his comments concerned only the professional conduct of Judges M. and L.L., which was so crucial for the civil parties; the remarks had a sufficient factual basis which lay in two proven facts, firstly, the fact that the video-cassette in issue had not been transmitted to the new investigating judge with the rest of the case file and, secondly, the existence of the handwritten card from the prosecutor of Djibouti to Judge M.; moreover, the proceedings brought against the applicant and his colleague Mr L. de Caunes by Judges M. and L.L. for false accusation, following the letter sent by the lawyers to the Minister of Justice, had resulted in a discontinuance order, which had been upheld on appeal. 103. As to the accusation that he had shown personal animosity, the applicant rejected this, pointing out that only the content and subject of the impugned remarks should be taken into account, not any intentions that might be wrongly attributed to him. The applicant added that he was not responsible for the reference to the disciplinary proceedings pending against Judge M. and he noted that, in any event, Judge L.L. had also lodged a criminal complaint, without there being any suggestion of personal animosity towards that judge as well. The applicant also denied that any insults or abuse could be detected in the remarks published in Le Monde. Lastly, he submitted that he was merely defending his client’s position in public, keeping her interests in mind without going beyond the scope of his duty of defence. He was of the view, in that connection, that this could not have influenced the ministerial or judicial authorities and he moreover challenged the idea that legal action by a lawyer on behalf of his client should preclude any comments in the press where the case aroused public interest. He asserted that, on the contrary, a lawyer was entitled to decide freely on his defence strategy for the benefit of his client. 104. Lastly, the applicant submitted that the sanction imposed had been particularly disproportionate. The criminal sanction had consisted of a fine of EUR 4,000, which was higher than the fine imposed on the journalist and director of Le Monde (respectively EUR 3,000 and EUR 1,500). In the civil part of the judgment, in addition to the sums awarded to cover the costs of Judges M. and L.L., he had been ordered to pay, jointly with his co-defendants, EUR 7,500 in damages to each of the two judges. Lastly, the publication of a notice in Le Monde, with a fine of EUR 500 per day in the event of delay, had been ordered. He submitted that such sanctions were unjustified and disproportionate and that they would inevitably have a significant and regrettable chilling effect on all lawyers. 2. The Government 105. The Government did not deny that the applicant’s conviction constituted an interference with the exercise of his right to freedom of expression. They took the view, however, that this interference was prescribed by law, since its legal basis lay in section 23 and sections 29 et seq. of the Act of 29 July 1881, and that it pursued a legitimate aim. On that latter point they argued that it sought to maintain the authority and impartiality of the judiciary, and to ensure the protection of the reputation or rights of others, since the statements had been directed at judges in the exercise of their duties and also undermined the confidence of citizens in the judiciary. 106. As to whether the interference was necessary in a democratic society, the Government were of the view that there was a fundamental difference between lawyers and journalists because of the former’s position as officers of the court ( auxiliaires de justice ). They occupied a central position as intermediaries between the public and the courts and their activities helped to ensure that justice was administered effectively and dispassionately. A balance had to be struck between the legitimate aim of informing the public about matters of general interest, including issues relating to the functioning of the justice system, and the requirements stemming from the proper administration of justice, on the one hand, and the dignity of the legal profession and the reputation of the judiciary, on the other. 107. The Government noted two different situations in the Court’s case-law on freedom of expression: the participation of lawyers in debates on matters of general interest unrelated to any pending proceedings, where freedom of expression was particularly broad; and statements made by lawyers in their role of defending clients, where they had a wide freedom of expression in the courtroom. That freedom of expression in defending a client in pending proceedings did have certain limits, however, in order to preserve judicial authority, such as, for example, where the lawyer made statements critical of the justice system before even using the legal remedies available to him to rectify the shortcomings in question. The Government submitted that lawyers, as officers of the court, were thus obliged to use legal proceedings to correct any alleged errors; by contrast, harsh criticism in the press, where legal means could be used instead, was not justified by the requirements of the effective defence of the lawyer’s client and cast doubt on the probity of the justice system. 108. In the present case the Government took the view that there had been numerous possible judicial remedies open to the applicant for the effective defence of his client and that he had in fact made use of them. His statements in the media could therefore only have been for the purpose of informing the public about a subject of general interest, but, as they concerned an ongoing case, he should have spoken with moderation. 109. In examining the impugned remarks, the Government referred to the margin of appreciation afforded to States in such matters. The article in question concerned a particularly sensitive case which, from the outset, had received significant media coverage. In their view, it could be seen from the article in Le Monde that the offending remarks were aimed, unequivocally, at the two judges and were phrased in terms that impugned their honour. The applicant had not confined himself to a general criticism of the institutions but had expressed biased views, without the slightest prudence. In the Government’s submission, he had not made factual statements regarding the functioning of the judicial system, but rather value judgments that cast serious doubt on the investigating judges’ integrity. The Government stated that the domestic courts had carefully examined each of the statements in question to establish whether they went beyond the limits of acceptable criticism. They further submitted that the evidence produced by the applicant was devoid of probative value. 110. Concerning the applicant’s unsuccessful defence of good faith, based on the duties inherent in his responsibility to defend his client’s interests, the Government observed that the French courts had assessed good faith in the light of Article 10 of the Convention and the four criteria that had to be fulfilled concurrently: the legitimacy of the aim pursued, the absence of personal animosity, the seriousness of the investigation carried out or of the evidence obtained by the author of the comments and, lastly, the prudence shown in expressing them. The domestic courts had taken the view that those conditions had not been fulfilled in the present case and had regarded the applicant’s remarks as a settling of scores with a judge. The applicant was at fault not for expressing himself outside the courtroom, but for using excessive comments, whereas he could have expressed himself without impugning the honour of State officials. 111. The Government submitted that such attacks on judges did not contribute either to a clear public understanding of the issues, since the judicial authority had no right of reply, or to the proper conduct of the judicial proceedings in a context in which the investigating judge who was the subject of the harsh criticism had already been removed from the case. In their view, neither was it a matter of zealous defence by a lawyer of his client, because there were judicial remedies that he could have used to submit his complaint. The Government referred to the Court’s inadmissibility decision in Floquet and Esménard v. France ((dec.), nos. 29064/08 and 29979/08, 10 January 2012), which concerned comments made by journalists in the Borrel case, particularly as, in the present case, it was not a journalist but a lawyer who was the author of the impugned statements, and moreover in a case that was pending in the domestic courts. 112. As to the sanction imposed on the applicant, the Government were of the view that it could not be regarded as excessive or such as to have a chilling effect on the exercise of freedom of expression. They thus submitted that there had been no violation of Article 10 of the Convention. C. Observations of the third-party interveners before the Grand Chamber 1. Observations of the Council of Bars and Law Societies of Europe (CCBE) 113. The CCBE observed that the Court’s judgment in the present case would most certainly have a considerable impact on the conditions of interpretation and application of the standards of conduct imposed on European lawyers and more particularly with regard to their freedom of speech and expression in the context of the exercise of defence rights. Lawyers held a key position in the administration of justice and it was necessary to protect their specific status. Being the cornerstone of a democratic society, freedom of expression had a particular characteristic as regards lawyers, who had to be able to carry on their profession without hindrance; if the use of their speech were to be censored or restricted, the real and effective defence of the citizen would not be guaranteed. 114. The CCBE referred to the Court’s case-law to the effect that a restriction of freedom of expression would entail a violation of Article 10 unless it fell within the exceptions mentioned in paragraph 2 of that Article. The examination criteria related to the existence of an interference, its legal foreseeability, whether it was necessary in a democratic society to meet a “pressing social need” and the specific circumstances of the case. In the CCBE’s view, these criteria were all the more valid where a lawyer defending Convention rights was concerned. 115. The limits to freedom of expression had firstly to be reasonably foreseeable, with a more restrictive and precise definition of the criteria relating to the restrictions that could be placed on lawyers’ freedom of expression. The CCBE noted discrepancies in the assessment by the various Sections of the Court: in a related case (see July and SARL Libération, cited above) the Court had found a violation of Article 10, whereas the Chamber in the present case had found no violation. In the CCBE’s view such discrepancies in assessment appeared to be the result of different approaches to the remarks of a lawyer: a degree of immunity applied to any views, however harsh, on the justice system or a court, whilst criticism of a judge did not enjoy such immunity. Such a distinction was extremely difficult to apply and gave rise to almost insurmountable problems, on account of the interdependence between the general and the personal in the conduct of proceedings, together with the fact that, in an inquisitorial system, judicial office could not be separated from the institution itself. 116. As the present case concerned freedom of expression outside the courtroom, the limits also had to take account of the fact that in sensitive and high-profile cases, and especially in those where reasons of State were at stake, lawyers often had no choice but to speak publicly to voice concerns regarding a hindrance to the proper conduct of the proceedings. In such cases, lawyers should have the same freedom of speech and expression as journalists. To restrict their freedom of expression, particularly when the proceedings were part of an inquisitorial system as in France, would prevent them from contributing to the proper administration of justice and ensuring public confidence therein. 117. The CCBE observed that as soon as a case attracted media attention, and, more particularly, where reasons of State were at stake, the rights of the defence, in certain cases, could only be meaningfully safeguarded by means of a public statement, even one that was somewhat vocal. Referring to the Court’s findings in Mor v. France (no. 28198/09, § 42, 15 December 2011), it took the view that the fact that neither the competent judicial authority nor the professional disciplinary body had initiated proceedings would provide a foreseeable test in relation to the uncertainties surrounding any inappropriate action by a judge, whose office could not be distinguished from the judicial authority itself. 2. Joint observations of the Paris Bar Association, the National Bar Council and the Conference of Chairmen of French Bars 118. These third-party interveners pointed out, firstly, that until recently the issue of a lawyer’s freedom of speech had arisen only inside the courtroom, and that in the context of defending a client at a hearing, the lawyer was protected by immunity from legal proceedings, an immunity which covered pleadings and oral argument before a court, under section 41 of the Act of 29 July 1881. This immunity authorised remarks which could be considered offensive, defamatory or injurious. 119. In their view, the point of principle in the present case was the lawyer’s freedom of expression to defend his client when he was addressing the press, where the case had attracted a certain level of public interest. The resulting issue was how to determine when comments became excessive, however strong they might be, if they affected an opponent, a judge or a fellow lawyer. 120. Every lawyer, however well known, was the custodian of the client’s word. When a case came to public attention, it was the lawyer’s responsibility to continue to defend that client, whether by taking any necessary ad hoc proceedings or by adding his own voice to the media storm, as had become the norm. This was no longer a lawyer’s right but a duty attached to his position, whether the story of the case broke some time before any public hearing, as was often the case, or later. 121. Lawyers were entitled to criticise the court’s ruling and to relay any criticism their clients might wish to make. The lawyer’s comments were then necessarily interpreted and received by the public as partial and subjective. The parallel between the judge’s duty of discretion and the lawyer’s freedom of speech was not convincing. Whilst the word of the judge would be received as objective, the words of the lawyer were taken as the expression of a protest by a party. It was not unusual, therefore, for a judge to be obliged to remain silent, whilst comments by a lawyer, for a party to the proceedings, would in no way disrupt the independence and authority of the justice system. 122. The third-party interveners observed that, while the French courts had always strictly applied the immunity referred to in section 41 of the 1881 Act to judicial comments alone, they were not unaware that lawyers had to contend with certain developments when their cases attracted media attention. They cited a recent example from a high-profile case where a lawyer had been prosecuted for defaming a lawyer for the opposing party. The Paris tribunal de grande instance had accepted his plea of good faith, even though his comments had been particularly excessive and based only on his personal belief, as “they came from a passionate lawyer who dedicated all of his energy to defending his client and who could not restrict his freedom of expression on the sole ground that he was referring to his case in front of journalists rather than addressing judges” (final judgment of the Seventeenth Division of the Paris tribunal de grande instance of 20 October 2010). The distinction between judicial and extrajudicial expression had therefore become outdated. The word of a lawyer was in fact based on a duty to inform; like journalists, lawyers were also “watchdogs of democracy”. 123. The third-party interveners submitted, lastly, that there was an obligation of proportionality in such matters both for lawyers and for the State. Lawyers had a very difficult role and this duty of proportionality reflected their duties of sensitivity and moderation, from which they could depart only where this was justified by the defence of their client and by the attacks or pressure they were under. As regards the State, the third-party interveners were of the view that lawyers should normally be granted immunity where their comments, however excessive, were linked to the defence of their client’s interests. Any restriction on their right to express their views should be exceptional, the test being whether or not the comments were detachable from the defence of the client. The margin of freedom of expression for lawyers, which had to remain as broad as that of journalists, should take account of the constraints faced by them and the increased media attention, with a press that was increasingly curious and probing. D. The Court’s assessment 1. General principles (a) Freedom of expression 124. The general principles concerning the necessity of an interference with freedom of expression, reiterated many times by the Court since its judgment in Handyside v. the United Kingdom (7 December 1976, Series A no. 24), were summarised in Stoll v. Switzerland ([GC] no. 69698/01, § 101, ECHR 2007 ‑ V) and restated more recently in Animal Defenders International v. the United Kingdom ([GC], no. 48876/08, § 100, ECHR 2013), as follows. “(i) Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no ‘democratic society’. As set forth in Article 10, this freedom is subject to exceptions, which ... must, however, be construed strictly, and the need for any restrictions must be established convincingly ... (ii) The adjective ‘necessary’, within the meaning of Article 10 § 2, implies the existence of a ‘pressing social need’. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a ‘restriction’ is reconcilable with freedom of expression as protected by Article 10. (iii) The Court’s task, in exercising its supervisory jurisdiction, is not to take the place of the competent national authorities but rather to review under Article 10 the decisions they delivered pursuant to their power of appreciation. This does not mean that the supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; what the Court has to do is to look at the interference complained of in the light of the case as a whole and determine whether it was ‘proportionate to the legitimate aim pursued’ and whether the reasons adduced by the national authorities to justify it are ‘relevant and sufficient’ ... In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they relied on an acceptable assessment of the relevant facts ...” 125. Moreover, as regards the level of protection, there is little scope under Article 10 § 2 of the Convention for restrictions on political speech or on debate on matters of public interest (see Sürek v. Turkey (no. 1) [GC], no. 26682/95, § 61, ECHR 1999-IV; Lindon, Otchakovsky-Laurens and July v. France [GC], nos. 21279/02 and 36448/02, § 46, ECHR 2007-IV; and Axel Springer AG v. Germany [GC], no. 39954/08, § 90, 7 February 2012). Accordingly, a high level of protection of freedom of expression, with the authorities thus having a particularly narrow margin of appreciation, will normally be accorded where the remarks concern a matter of public interest, as is the case, in particular, for remarks on the functioning of the judiciary, even in the context of proceedings that are still pending in respect of the other defendants (see Roland Dumas v. France, no. 34875/07, § 43, 15 July 2010, and Gouveia Gomes Fernandes and Freitas e Costa v. Portugal, no. 1529/08, § 47, 29 March 2011). A degree of hostility (see E.K. v. Turkey, no. 28496/95, §§ 79-80, 7 February 2002) and the potential seriousness of certain remarks (see Thoma v. Luxembourg, no. 38432/97, § 57, ECHR 2001-III) do not obviate the right to a high level of protection, given the existence of a matter of public interest (see Paturel v. France, no. 54968/00, § 42, 22 December 2005). 126. Furthermore, in its judgments in Lingens v. Austria (8 July 1986, § 46, Series A no. 103) and Oberschlick v. Austria (no. 1) (23 May 1991, § 63, Series A no. 204), the Court drew a distinction between statements of fact and value judgments. The existence of facts can be demonstrated, whereas the truth of value judgments is not susceptible of proof. The requirement to prove the truth of a value judgment is impossible to fulfil and infringes freedom of opinion itself, which is a fundamental part of the right secured by Article 10 (see De Haes and Gijsels v. Belgium, 24 February 1997, § 42, Reports 1997-I). However, where a statement amounts to a value judgment, the proportionality of an interference may depend on whether there exists a sufficient “factual basis” for the impugned statement: if there is not, that value judgment may prove excessive (see De Haes and Gijsels, cited above, § 47; Oberschlick v. Austria (no. 2), 1 July 1997, § 33, Reports 1997-IV; Brasilier v. France, no. 71343/01, § 36, 11 April 2006; and Lindon, Otchakovsky-Laurens and July, cited above, § 55). In order to distinguish between a factual allegation and a value judgment it is necessary to take account of the circumstances of the case and the general tone of the remarks (see Brasilier, cited above, § 37), bearing in mind that assertions about matters of public interest may, on that basis, constitute value judgments rather than statements of fact (see Paturel, cited above, § 37). 127. Lastly, the nature and severity of the sanctions imposed are also factors to be taken into account when assessing the proportionality of the interference. As the Court has previously pointed out, interference with freedom of expression may have a chilling effect on the exercise of that freedom. The relatively moderate nature of the fines does not suffice to negate the risk of a chilling effect on the exercise of freedom of expression, this being all the more unacceptable in the case of a lawyer who is required to ensure the effective defence of his clients (see Mor, cited above, § 61). Generally speaking, while it is legitimate for the institutions of the State, as guarantors of the institutional public order, to be protected by the competent authorities, the dominant position occupied by those institutions requires the authorities to display restraint in resorting to criminal proceedings (see Castells v. Spain, 23 April 1992, § 46, Series A no. 236; Incal v. Turkey, 9 June 1998, § 54, Reports 1998-IV; Lehideux and Isorni v. France, 23 September 1998, § 57, Reports 1998-VII; Öztürk v. Turkey [GC], no. 22479/93, § 66, ECHR 1999-VI; and Otegi Mondragon v. Spain, no. 2034/07, § 58, ECHR 2011). (b) Maintaining the authority of the judiciary 128. Questions concerning the functioning of the justice system, an institution that is essential for any democratic society, fall within the public interest. In this connection, regard must be had to the special role of the judiciary in society. As the guarantor of justice, a fundamental value in a State governed by the rule of law, it must enjoy public confidence if it is to be successful in carrying out its duties. It may therefore prove necessary to protect such confidence against gravely damaging attacks that are essentially unfounded, especially in view of the fact that judges who have been criticised are subject to a duty of discretion that precludes them from replying (see Prager and Oberschlick v. Austria, 26 April 1995, § 34, Series A no. 313; Karpetas v. Greece, no. 6086/10, § 68, 30 October 2012; and Di Giovanni v. Italy, no. 51160/06, § 71, 9 July 2013). 129. The phrase “authority of the judiciary” includes, in particular, the notion that the courts are, and are accepted by the public at large as being, the proper forum for the resolution of legal disputes and for the determination of a person’s guilt or innocence on a criminal charge; further, that the public at large have respect for and confidence in the courts’ capacity to fulfil that function (see Worm v. Austria, 29 August 1997, § 40, Reports 1997-V, and Prager and Oberschlick, cited above). 130. What is at stake is the confidence which the courts in a democratic society must inspire not only in the accused, as far as criminal proceedings are concerned (see Kyprianou, cited above, § 172), but also in the public at large (see Kudeshkina v. Russia, no. 29492/05, § 86, 26 February 2009, and Di Giovanni, cited above). 131. Nevertheless – save in the case of gravely damaging attacks that are essentially unfounded – bearing in mind that judges form part of a fundamental institution of the State, they may as such be subject to personal criticism within the permissible limits, and not only in a theoretical and general manner (see July and SARL Libération, cited above, § 74). When acting in their official capacity they may thus be subject to wider limits of acceptable criticism than ordinary citizens (ibid.). (c) The status and freedom of expression of lawyers 132. The specific status of lawyers gives them a central position in the administration of justice as intermediaries between the public and the courts. They therefore play a key role in ensuring that the courts, whose mission is fundamental in a State based on the rule of law, enjoy public confidence (see Schöpfer v. Switzerland, 20 May 1998, §§ 29-30, Reports 1998-III; Nikula v. Finland, no. 31611/96, § 45, ECHR 2002-II; Amihalachioaie v. Moldova, no. 60115/00, § 27, ECHR 2004-III; Kyprianou, cited above, § 173; André and Another v. France, no. 18603/03, § 42, 24 July 2008; and Mor, cited above, § 42). However, for members of the public to have confidence in the administration of justice they must have confidence in the ability of the legal profession to provide effective representation (see Kyprianou, cited above, § 175). 133. That special role of lawyers, as independent professionals, in the administration of justice entails a number of duties, particularly with regard to their conduct (see Van der Mussele v. Belgium, 23 November 1983, Series A no. 70; Casado Coca v. Spain, 24 February 1994, § 46, Series A no. 285-A; Steur v. the Netherlands, no. 39657/98, § 38, ECHR 2003-XI; Veraart v. the Netherlands, no. 10807/04, § 51, 30 November 2006; and Coutant v. France (dec.), no. 17155/03, 24 January 2008). Whilst they are subject to restrictions on their professional conduct, which must be discreet, honest and dignified, they also enjoy exclusive rights and privileges that may vary from one jurisdiction to another – among them, usually, a certain latitude regarding arguments used in court (see Steur, cited above). 134. Consequently, freedom of expression is applicable also to lawyers. It encompasses not only the substance of the ideas and information expressed but also the form in which they are conveyed (see Foglia v. Switzerland, no. 35865/04, § 85, 13 December 2007). Lawyers are thus entitled, in particular, to comment in public on the administration of justice, provided that their criticism does not overstep certain bounds (see Amihalachioaie, cited above, §§ 27-28; Foglia, cited above, § 86; and Mor, cited above, § 43). Those bounds lie in the usual restrictions on the conduct of members of the Bar (see Kyprianou, cited above, § 173), as reflected in the ten basic principles enumerated by the CCBE for European lawyers, with their particular reference to “dignity”, “honour” and “integrity” and to “respect for ... the fair administration of justice” (see paragraph 58 above). Such rules contribute to the protection of the judiciary from gratuitous and unfounded attacks, which may be driven solely by a wish or strategy to ensure that the judicial debate is pursued in the media or to settle a score with the judges handling the particular case. 135. The question of freedom of expression is related to the independence of the legal profession, which is crucial for the effective functioning of the fair administration of justice (see Siałkowska v. Poland, no. 8932/05, § 111, 22 March 2007). It is only in exceptional cases that restriction – even by way of a lenient criminal penalty – of defence counsel’s freedom of expression can be accepted as necessary in a democratic society (see Nikula, cited above, § 55; Kyprianou, cited above, § 174; and Mor, cited above, § 44). 136. A distinction should, however, be drawn depending on whether the lawyer expresses himself in the courtroom or elsewhere. 137. As regards, firstly, the issue of “conduct in the courtroom”, since the lawyer’s freedom of expression may raise a question as to his client’s right to a fair trial, the principle of fairness thus also militates in favour of a free and even forceful exchange of argument between the parties (see Nikula, cited above, § 49, and Steur, cited above, § 37). Lawyers have the duty to “defend their clients’ interests zealously” (see Nikula, cited above, § 54), which means that they sometimes have to decide whether or not they should object to or complain of the conduct of the court (see Kyprianou, cited above, § 175). In addition, the Court takes into consideration the fact that the impugned remarks are not repeated outside the courtroom and it makes a distinction depending on the person concerned; thus, a prosecutor, who is a “party” to the proceedings, has to “tolerate very considerable criticism by ... defence counsel”, even if some of the terms are inappropriate, provided they do not concern his general professional or other qualities (see Nikula, cited above, §§ 51-52; Foglia, cited above, § 95; and Roland Dumas, cited above, § 48). 138. Turning now to remarks made outside the courtroom, the Court reiterates that the defence of a client may be pursued by means of an appearance on the television news or a statement in the press, and through such channels the lawyer may inform the public of shortcomings that are likely to undermine pre-trial proceedings (see Mor, cited above, § 59). The Court takes the view, in this connection, that a lawyer cannot be held responsible for everything published in the form of an “interview”, in particular where the press has edited the statements and he or she has denied making certain remarks (see Amihalachioaie, cited above, § 37). In the above-cited Foglia case, it also found that lawyers could not justifiably be held responsible for the actions of the press (see Foglia, cited above, § 97). Similarly, where a case is widely covered in the media on account of the seriousness of the facts and the individuals likely to be implicated, a lawyer cannot be penalised for breaching the secrecy of the judicial investigation where he or she has merely made personal comments on information which is already known to the journalists and which they intend to report, with or without those comments. Nevertheless, when making public statements, a lawyer is not exempted from his duty of prudence in relation to the secrecy of a pending judicial investigation (see Mor, cited above, §§ 55-56). 139. Lawyers cannot, moreover, make remarks that are so serious that they overstep the permissible expression of comments without a sound factual basis (see Karpetas, cited above, § 78; see also A. v. Finland (dec.), no. 44998/98, 8 January 2004), nor can they proffer insults (see Coutant, cited above). In the circumstances in Gouveia Gomes Fernandes and Freitas e Costa (cited above, § 48), the use of a tone that was not insulting but caustic, or even sarcastic, in remarks about judges was regarded as compatible with Article 10. The Court assesses remarks in their general context, in particular to ascertain whether they can be regarded as misleading or as a gratuitous personal attack (see Ormanni v. Italy, no. 30278/04, § 73, 17 July 2007, and Gouveia Gomes Fernandes and Freitas e Costa, cited above, § 51) and to ensure that the expressions used have a sufficiently close connection with the facts of the case (see Feldek v. Slovakia, no. 29032/95, § 86, ECHR 2001 ‑ VIII, and Gouveia Gomes Fernandes and Freitas e Costa, cited above). 2. Application of those principles in the present case 140. Turning to the present case, the Court observes that the applicant received a criminal conviction, with an order to pay damages and costs, on account of his remarks concerning the proceedings in the Borrel case, as reproduced in an article in the daily newspaper Le Monde, which contained the text of a letter sent by the applicant and his colleague to the Minister of Justice seeking an administrative investigation, together with statements that he had made to the journalist who wrote the impugned article. 141. The Court notes at the outset that it is not in dispute between the parties that the applicant’s criminal conviction constituted an interference with the exercise of his right to freedom of expression, as guaranteed by Article 10 of the Convention. That is also the Court’s opinion. 142. It further observes that the interference was prescribed by law, namely by sections 23, 29 and 31 of the Act of 29 July 1881, as the applicant acknowledged. 143. The parties also agreed that the aim of the interference was the protection of the reputation or rights of others. The Court does not see any reason to adopt a different view. While the applicant wished to qualify the point that the proceedings against him also sought to “maintain the authority and impartiality of the judiciary” (see paragraph 99 above), this question relates to the “necessity” of the interference and cannot affect the fact that it pursued at least one of the “legitimate aims” covered by paragraph 2 of Article 10. 144. It remains therefore to be examined whether the interference was “necessary in a democratic society” and this requires the Court to ascertain whether it was proportionate to the legitimate aim pursued and whether the grounds given by the domestic courts were relevant and sufficient. 145. The Court notes that, in convicting the applicant, the Court of Appeal took the view that to say that an investigating judge had shown “conduct which [was] completely at odds with the principles of impartiality and fairness” was in itself a particularly defamatory accusation (see paragraph 47 above). That court added that the applicant’s comments concerning the delay in forwarding the video-cassette and his reference to the handwritten card from the public prosecutor of Djibouti to Judge M., in respect of which the applicant had used the term “connivance”, merely confirmed the defamatory nature of the accusation (ibid.), the “veracity” of the allegations not having been established (see paragraph 48 above) and the applicant’s defence of good faith being rejected (see paragraph 49 above). (a) The applicant’s status as a lawyer 146. The Court observes, firstly, that the remarks in question stemmed both from statements made at the request of the journalist who wrote the article and from the letter to the Minister of Justice. The remarks were made by the applicant in his capacity as a lawyer acting for the civil party and concerned matters relating to the proceedings in the Borrel case. 147. In this connection the Court notes at the outset that the applicant has invited it to clarify its case-law concerning the exercise of freedom of expression by a lawyer, particularly outside the courtroom, and to afford the greatest possible protection to comments by lawyers (see paragraphs 96, 97 and 102 above). The Government, for their part, while taking the view that their status as officers of the court fundamentally distinguished lawyers from journalists (see paragraph 106 above), identified various situations in which freedom of expression would be “particularly broad”, “wide”, or, on the contrary, subject to “certain limits” (see paragraph 107 above). 148. The Court would refer the parties to the principles set out in its case-law, particularly with regard to the status and freedom of expression of lawyers (see paragraphs 132-39 above), with emphasis on the need to distinguish between remarks made by lawyers inside and outside the courtroom. Moreover, in view of the specific status of lawyers and their position in the administration of justice (see paragraph 132 above), the Court takes the view, contrary to the argument of the CCBE (see paragraph 116 above), that lawyers cannot be equated with journalists. Their respective positions and roles in judicial proceedings are intrinsically different. Journalists have the task of imparting, in conformity with their duties and responsibilities, information and ideas on all matters of public interest, including those relating to the administration of justice. Lawyers, for their part, are protagonists in the justice system, directly involved in its functioning and in the defence of a party. They cannot therefore be equated with an external witness whose task it is to inform the public. 149. The applicant argued that his statements, as published in the newspaper Le Monde, served precisely to fulfil his task of defending his client – a task that was for him to determine. However, while it is not in dispute that the impugned remarks fell within the context of the proceedings, they were aimed at investigating judges who had been removed from the proceedings with final effect at the time they were made. The Court therefore fails to see how his statements could have directly contributed to his task of defending his client, since the judicial investigation had by that time been entrusted to another judge who was not the subject of the criticism. (b) Contribution to a debate on a matter of public interest 150. The applicant further relied on his right to inform the public of shortcomings in the handling of ongoing proceedings and to contribute to a debate on a matter of public interest. 151. On that point, the Court notes, firstly, that the applicant’s remarks were made in the context of the judicial investigation opened following the death of a French judge, Bernard Borrel, who had been seconded to the Djibouti Ministry of Justice as a technical adviser. The Court has already had occasion to note the significant media interest shown in this case from the outset (see July and SARL Libération, cited above, § 67), thus reflecting its prominence in public opinion. Like the applicant, the Court notes, moreover, that the justice system also contributed to informing the public of this case, as the investigating judge handling the case in 2007 asked the public prosecutor to issue a press release, under Article 11, paragraph 3, of the Code of Criminal Procedure, to announce that the suicide theory had been dismissed in favour of one of premeditated murder (see paragraphs 24 and 55 above). 152. In addition, as the Court has previously found, the public have a legitimate interest in the provision and availability of information regarding criminal proceedings (see July and SARL Libération, cited above, § 66) and remarks concerning the functioning of the judiciary relate to a matter of public interest (see paragraph 125 above). The Court has in fact already been called upon on two occasions, in Floquet and Esménard and July and SARL Libération (both cited above), to examine complaints relating to the Borrel case and to the right to freedom of expression in respect of comments on the handling of the judicial investigation, finding in each of those cases that there was a debate on a matter of public interest. 153. Accordingly, the Court takes the view that the applicant’s impugned remarks, which also concerned, as in the said judgments in Floquet and Esménard and July and SARL Libération, the functioning of the judiciary and the handling of the Borrel case, fell within the context of a debate on a matter of public interest, thus calling for a high level of protection of freedom of expression, with a particularly narrow margin of appreciation accordingly being afforded to the authorities. (c) The nature of the impugned remarks 154. The Court notes that after the applicant’s remarks had been found “particularly defamatory” he had been unable to establish their veracity on the basis of evidence that, according to the Criminal Court, had to “be flawless and complete and relate directly to all the allegations found to be defamatory” (see paragraph 40 above). His defence of good faith was also rejected. On that point, the Criminal Court and the Court of Appeal took the view, in particular, that the attacks on the professional and moral integrity of Judges M. and L.L. clearly overstepped the right of permissible criticism (see paragraphs 40 and 50 above). In addition, while the Criminal Court took the view that the profound disagreements between Mrs Borrel’s lawyers and the investigating judges could not justify a total lack of prudence in their expression, the Court of Appeal concluded that the decision in the applicant’s favour to discontinue the proceedings brought against him by the two judges did not rule out bad faith on his part. It held that the applicant’s personal animosity and the wish to discredit the judges, in particular Judge M., stemmed from the excessive nature of his comments and from the fact that the article on the Borrel case had been published at the same time as the bringing of proceedings against Judge M. before the Indictment Division in connection with the “Scientology” case (ibid.). 155. As the Court has already observed, it is necessary to distinguish between statements of fact and value judgments (see paragraph 126 above). The existence of facts can be demonstrated, whereas the truth of value judgments is not susceptible of proof; a requirement to prove the truth of a value judgment is impossible to fulfil and infringes freedom of opinion itself, which is a fundamental part of the right secured by Article 10 (ibid.). In addition, the existence of procedural safeguards for the benefit of a defendant in defamation proceedings is among the factors to be taken into account in assessing the proportionality of an interference under Article 10. In particular, it is important for the defendant to be afforded a realistic chance to prove that there was a sufficient factual basis for his allegations (see, among other authorities, Steel and Morris v. the United Kingdom, no. 68416/01, § 95, ECHR 2005-II; Andrushko v. Russia, no. 4260/04, § 53, 14 October 2010; Dilipak and Karakaya v. Turkey, nos. 7942/05 and 24838/05, § 141, 4 March 2014; and Hasan Yazıcı v. Turkey, no. 40877/07, § 54, 15 April 2014). No such chance was afforded in the present case. 156. The Court takes the view that, in the circumstances of the case, the impugned statements were more value judgments than pure statements of fact, in view of the general tone of the remarks and the context in which they were made, as they reflected mainly an overall assessment of the conduct of the investigating judges in the course of the investigation. 157. It thus remains to be examined whether the “factual basis” for those value judgments was sufficient. 158. The Court is of the opinion that this condition was fulfilled in the present case. After the case had been withdrawn from Judges M. and L.L. by the Indictments Division of the Paris Court of Appeal (see paragraph 23 above), it became apparent that an important item of evidence in the file, namely a video-cassette recorded during a visit by the judges, accompanied by experts, to the scene of the death, even though it had been referred to in the last decision given by those judges, had not been forwarded with the investigation file to the judge appointed to replace them. That fact was not only established but it was also sufficiently serious to justify the drafting by Judge P. of a report in which he recorded the following: firstly, the video-cassette did not appear in the investigation file and was not registered as an exhibit; and secondly, it had been given to him in an envelope, which showed no sign of having been placed under seal, bearing the name of Judge M. as addressee and also containing a handwritten card with the letter head of the public prosecutor of Djibouti, written by him and addressed to Judge M. (see paragraph 32 above). 159. Moreover, in addition to the fact that the card showed a certain friendliness on the part of the public prosecutor of Djibouti towards Judge M. (see paragraph 32 above), it accused the civil parties’ lawyers of “orchestrating their manipulation”. The Court would emphasise in this connection that, not only have the Djibouti authorities supported the theory of suicide from the outset, but also a number of representatives of that State have been personally implicated in the context of the judicial investigation conducted in France, as can be seen in particular from the judgment of the International Court of Justice (see paragraphs 63-64 above) and from the proceedings brought on a charge of procuring of false evidence (see paragraph 18 above). 160. Lastly, it has been established that the applicant acted in his capacity as a lawyer in two high-profile cases in which Judge M. was an investigating judge. In both of them the applicant succeeded in obtaining findings by the appellate courts that there had been shortcomings in the proceedings, leading to the withdrawal of the cases from Judge M. (see paragraphs 22-23 and 26 above). In the context of the first case, known as the “Scientology” case, the applicant additionally secured a ruling that the French State was liable for the malfunctioning of the justice system (see paragraph 30 above). 161. It further considers that the expressions used by the applicant had a sufficiently close connection with the facts of the case, in addition to the fact that his remarks could not be regarded as misleading or as a gratuitous attack (see paragraph 139 above). It reiterates in this connection that freedom of expression “is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb”. Similarly, the use of a “caustic tone” in comments aimed at a judge is not incompatible with the provisions of Article 10 of the Convention (see, for example, Gouveia Gomes Fernandes and Freitas e Costa, cited above, § 48). (d) The specific circumstances of the case (i) The need to take account of the overall background 162. The Court reiterates that, in the context of Article 10 of the Convention, it must take account of the circumstances and overall background against which the statements in question were made (see, among many other authorities, Lingens, cited above, § 40, and Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 62, ECHR 1999-III). In the present case, the background can be explained not only by the conduct of the investigating judges and by the applicant’s relations with one of them, but also by the very specific history of the case, its inter-State dimension and its substantial media coverage. The Court would observe, however, that the Court of Appeal attributed an extensive scope to the impugned remark of the applicant criticising an investigating judge for “conduct which [was] completely at odds with the principles of impartiality and fairness”, finding that this was in itself a particularly defamatory accusation, tantamount to saying that there had been a breach of professional ethics and of the judicial oath on the part of that judge (see paragraph 47 above). That quotation should, however, have been assessed in the light of the specific circumstances of the case, especially as it was in reality not a statement made to the author of the article, but an extract from the letter sent by the applicant and his colleague, Mr L. de Caunes, to the Minister of Justice on 6 September 2000. In addition, at the time when the applicant answered his questions the journalist had already been informed of the letter to the Minister of Justice, not by the applicant himself, but by his own sources, as the Criminal Court acknowledged (see paragraph 40 above). The applicant further argued, without this being in dispute, that the article’s author was solely responsible for the reference to the disciplinary proceedings against Judge M. in the context of the “Scientology” case. In that connection, the Court reiterates that lawyers cannot be held responsible for everything appearing in an “interview” published by the press or for actions by the press. 163. The Court of Appeal was thus required to examine the impugned remarks with full consideration of both the background to the case and the content of the letter, taken as a whole. 164. For the same reasons, since the impugned remarks could not be assessed out of context, the Court cannot share the view of the Paris Court of Appeal that the use of the term “connivance” constituted “in itself” a serious attack on the honour and reputation of Judge M. and the public prosecutor of Djibouti (see paragraph 47 above). 165. As to the question of personal animosity on the part of the applicant towards Judge M., on account of conflicts in the context of the Borrel and “Scientology” cases, the Court takes the view that this aspect was insufficiently relevant and serious to warrant the applicant’s conviction. In any event, since the courts acknowledged the existence of conflicts between the two protagonists, and in view of the particular circumstances of the present case, such a reproach of personal animosity could have been made as much to Judge M. as to the applicant (see, mutatis mutandis, Paturel, cited above, § 45), especially as before filing a complaint against the applicant for complicity in defamation Judge M. had already unsuccessfully filed a complaint against him for false accusation (see paragraph 35 above). The Court of Appeal’s reliance on the applicant’s personal animosity is also at least undermined, if not contradicted, by other factors. Firstly, the remark concerning “conduct which [was] completely at odds with the principles of impartiality and fairness” was directed not only at Judge M., but also at Judge L.L., in respect of whom the applicant was not accused of showing any personal animosity. Furthermore, while the proceedings against the applicant concerned the above-cited extract from the letter to the Minister of Justice, that letter had in reality been signed and sent by two lawyers, the applicant and his colleague, Mr L. de Caunes. In the case of the latter, however, not only has he not been prosecuted for remarks that were attributable as much to him as to the applicant, he has not been accused of showing any animosity towards Judge M. or Judge L.L. 166. In conclusion, the Court considers that the applicant’s statements could not be reduced to the mere expression of personal animosity, that is to say an antagonistic relationship between two individuals, the applicant and Judge M. The impugned remarks fell, in reality, within a broader context, also involving another lawyer and another judge. In the Court’s opinion, that fact is capable of supporting the idea that the remarks were not part of any personal action on the part of the applicant, out of a desire for vengeance, but rather formed part of a joint professional initiative by two lawyers, on account of facts that were new, established and capable of revealing serious shortcomings in the justice system, involving the two judges who had formerly been conducting the investigation in a case in which the two lawyers’ clients were civil parties. 167. In addition, while the applicant’s remarks certainly had a negative connotation, it should be pointed out that, notwithstanding their somewhat hostile nature (see E.K. v. Turkey, cited above, §§ 79-80) and seriousness (see Thoma, cited above), the key question in the statements concerned the functioning of a judicial investigation, which was a matter of public interest, thus leaving little room for restrictions on freedom of expression. In addition, a lawyer should be able to draw the public’s attention to potential shortcomings in the justice system; the judiciary may benefit from constructive criticism. (ii) Maintaining the authority of the judiciary 168. The Government relied on the fact that the judicial authorities had no right of reply. It is true that the particular task of the judiciary in society requires judges to observe a duty of discretion (see paragraph 128 above). However, that duty pursues a specific aim, as noted by the third-party interveners: the speech of judges, unlike that of lawyers, is received as the expression of an objective assessment which commits not only the person expressing himself, but also, through him, the entire justice system. Lawyers, for their part, merely speak in their own name and on behalf of their clients, thus also distinguishing them from journalists, whose role in the judicial debate and purpose are intrinsically different. Nevertheless, while it may prove necessary to protect the judiciary against gravely damaging attacks that are essentially unfounded, bearing in mind that judges are prevented from reacting by their duty of discretion (see paragraph 128 above), this cannot have the effect of prohibiting individuals from expressing their views, through value judgments with a sufficient factual basis, on matters of public interest related to the functioning of the justice system, or of banning any criticism of the latter. In the present case, Judges M. and L.L. were members of the judiciary and were thus both part of a fundamental institution of the State: they were therefore subject to wider limits of acceptable criticism than ordinary citizens and the impugned comments could therefore be directed against them in that capacity (see paragraphs 128 and 131 above). 169. The Court further finds, contrary to what has been argued by the Government, that the applicant’s remarks were not capable of undermining the proper conduct of the judicial proceedings, in view of the fact that the higher court had withdrawn the case from the two investigating judges concerned by the criticisms. Neither the new investigating judge nor the higher courts were targeted in any way by the impugned remarks. 170. Nor can it be considered, for the same reasons and taking account of the foregoing, that the applicant’s conviction could serve to maintain the authority of the judiciary. The Court would nevertheless emphasise the importance, in a State governed by the rule of law and in a democratic society, of maintaining the authority of the judiciary. In any event, the proper functioning of the courts would not be possible without relations based on consideration and mutual respect between the various protagonists in the justice system, at the forefront of which are judges and lawyers. (iii) The use of available remedies 171. With regard to the Government’s argument as to the possibility of using available remedies, the Court finds it pertinent but not sufficient in the present case to justify the applicant’s conviction. It first notes that the use of available remedies, on the one hand, and the right to freedom of expression, on the other, do not pursue the same aim and are not interchangeable. That being said, the Court takes the view that the defence of a client by his lawyer must be conducted not in the media, save in very specific circumstances (see paragraph 138 above), but in the courts of competent jurisdiction, and this involves using any available remedies. It notes that in the present case the referral to the Indictments Division of the Paris Court of Appeal patently showed that the initial intention of the applicant and his colleague was to resolve the matter using the available remedies. It was, in reality, only after that remedy had been used that the problem complained of occurred, as recorded by the investigating judge P. in his official report of 1 August 2000 (see paragraph 32 above). At that stage the Indictments Division was no longer in a position to examine such complaints, precisely because it had withdrawn the case from Judges M. and L.L. The Court further notes that, in any event, four and a half years had already elapsed since the opening of the judicial investigation, which has still not been closed to date. It also observes that the civil parties and their lawyers took an active part in the proceedings and, in particular, that they succeeded, according to the judgment of the Versailles Court of Appeal of 28 May 2009, in having a material witness examined in Belgium in spite of a lack of interest in him on the part of the investigating judges M. and L.L. (see paragraph 16 above). 172. Moreover, the request for an investigation made to the Minister of Justice complaining of these new facts was not a judicial remedy – such as to justify possibly refraining from intervention in the press – but a mere request for an administrative investigation subject to the discretionary decision of the Minister of Justice. The Court notes in this connection that the domestic judges themselves, both at first instance and on appeal, took the view that the letter could not enjoy the immunity afforded to judicial acts, the Criminal Court having found that its content was purely informative (see paragraphs 38 and 46 above). The Court observes that it has not been argued that this request was acted upon and, in addition, it notes that Judges M. and L.L. clearly did not see it as the normal use of a remedy available under domestic law, but as an act justifying the filing of a complaint for false accusation (see paragraph 35 above). 173. Lastly, the Court finds that neither the Principal Public Prosecutor nor the relevant Bar Council or chairman of the Bar found it necessary to bring disciplinary proceedings against the applicant on account of his statements in the press, although such a possibility was open to them (see Mor, cited above, § 60). (iv) Conclusion as to the circumstances of the present case 174. The Court is of the view that the impugned remarks by the applicant did not constitute gravely damaging and essentially unfounded attacks on the action of the courts, but criticisms levelled at Judges M. and L.L. as part of a debate on a matter of public interest concerning the functioning of the justice system, and in the context of a case which had received wide media coverage from the outset. While those remarks could admittedly be regarded as harsh, they nevertheless constituted value judgments with a sufficient “factual basis”. (e) The sanctions imposed 175. As to the sentences imposed, the Court reiterates that, in assessing the proportionality of the interference, the nature and severity of the penalties imposed are also factors to be taken into account (see, for example, Sürek, cited above, § 64; Chauvy and Others v. France, no. 64915/01, § 78, ECHR 2004-VI; and Mor, cited above, § 61). In the present case, the Court of Appeal sentenced the applicant to pay a fine of EUR 4,000. This amount corresponds precisely to that fixed by the first-instance court, where the judges had expressly taken into account the applicant’s status as a lawyer to justify their severity and to impose on him “a fine of a sufficiently high amount” (see paragraph 41 above). In addition to ordering the insertion of a notice in the newspaper Le Monde, the court ordered him to pay, jointly with the journalist and the publication director, EUR 7,500 in damages to each of the two judges, together with EUR 4,000 to Judge L.L. in costs. The Court notes, moreover, that the applicant alone was ordered to pay a sum to Judge M. in respect of costs, amounting to EUR 1,000. 176. The Court reiterates that even when the sanction is the lightest possible, such as a guilty verdict with a discharge in respect of the criminal sentence and an award of only a “token euro” in damages (see Mor, cited above, § 61), it nevertheless constitutes a criminal sanction and, in any event, that fact cannot suffice, in itself, to justify the interference with the applicant’s freedom of expression (see Brasilier, cited above, § 43). The Court has emphasised on many occasions that interference with freedom of expression may have a chilling effect on the exercise of that freedom (see, mutatis mutandis, Cumpănă and Mazăre v. Romania [GC], no. 33348/96, § 114, ECHR 2004 ‑ XI, and Mor, cited above) – a risk that the relatively moderate nature of a fine would not suffice to negate (see Dupuis and Others v. France, no. 1914/02, § 48, 7 June 2007). It should also be noted that imposing a sanction on a lawyer may have repercussions that are direct (disciplinary proceedings) or indirect (in terms, for example, of their image or the confidence placed in them by the public and their clients). The Court would, moreover, reiterate that the dominant position of the State institutions requires the authorities to show restraint in resorting to criminal proceedings (see paragraph 127 above). The Court observes, however, that in the present case the applicant’s punishment was not confined to a criminal conviction: the sanction imposed on him was not the “lightest possible”, but was, on the contrary, of some significance, and his status as a lawyer was even relied upon to justify greater severity. 3. Conclusion 177. In view of the foregoing, the Court finds that the judgment against the applicant for complicity in defamation can be regarded as a disproportionate interference with his right to freedom of expression, and was not therefore “necessary in a democratic society” within the meaning of Article 10 of the Convention. 178. Accordingly, there has been a violation of Article 10 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 179. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 180. The applicant claimed 4,270 euros (EUR) in respect of pecuniary damage, corresponding to the amounts he was ordered to pay on account of the judgment against him, and EUR 20,000 in respect of non-pecuniary damage on account of the violation of Articles 6 and 10 of the Convention. 181. The Government did not comment on those claims before the Grand Chamber. 182. The Court observes that the applicant was ordered to pay a fine of EUR 4,000, together with the sum of EUR 1,000 in respect of Judge M.’s costs and expenses, in addition to an award of EUR 7,500 in damages to each of the judges to be paid jointly with the other two co-defendants, and EUR 4,000 in respect of Judge L.L.’s costs (see paragraph 46 above). It thus takes the view that there is a sufficient causal link between the alleged pecuniary damage and the violation found under Article 6 and, especially, under Article 10 of the Convention. It is thus appropriate to order, under the head of pecuniary damage, the reimbursement of the sums that the applicant was required to pay, within the limit indicated in his claim, namely EUR 4,270, which corresponds to the amount of the fine, plus taxes and court courts, that was paid to the Treasury. 183. The Court further finds that the applicant clearly sustained non-pecuniary damage on account of his criminal conviction and, ruling on an equitable basis, it awards him EUR 15,000 on that basis. B. Costs and expenses 184. The applicant claimed EUR 26,718.80 in respect of costs and expenses for the proceedings before the Court. 185. The Government made no comment on this claim before the Grand Chamber. 186. The Court reiterates that costs and expenses will not be awarded under Article 41 unless it is established that they were actually incurred, were necessarily incurred and were also reasonable as to quantum (see, among many other authorities, Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 54, ECHR 2000-XI; Beyeler v. Italy (just satisfaction) [GC], no. 33202/96, § 27, 28 May 2002; and Kurić and Others v. Slovenia (just satisfaction) [GC], no. 26828/06, ECHR 2014). 187. In the present case, taking account of the documents in its possession and the above-mentioned criteria, the Grand Chamber finds it reasonable to award EUR 14,400 on that basis to the applicant. C. Default interest 188. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | It was not in dispute in this case that the applicant’s conviction had constituted an interference with the exercise of his right to freedom of expression, as prescribed by law, and with the aim of protecting the reputation or rights of others. The Court however held that there had been a violation of Article 10 (freedom of expression) of the Convention, finding that the judgment against the applicant for complicity in defamation could be regarded as a disproportionate interference with his right to freedom of expression, and was not therefore necessary in a democratic society”within the meaning of Article 10. |
639 | Journalists and publishing companies | II. RELEVANT DOMESTIC LAW AND PRACTICE AND EUROPEAN TEXTS A. Domestic law and practice 1. The Civil Code 47. Article 823 § 1 of the Civil Code ( Bürgerliches Gestezbuch ) provides that anyone who, intentionally or negligently, unlawfully infringes another’s right to life, physical integrity, health, freedom, property or other similar right, shall be liable to make compensation for the resulting damage. In accordance with Article 1004 § 1, where another’s property is damaged otherwise than by removal or illegal retention the owner may require the perpetrator to cease the interference. If there are reasonable fears that further damage will be inflicted, the owner may seek an injunction. 2. Relevant case-law 48. In its judgment of 15 November 2005 (no. Vi ZR 286/04) the Federal Court of Justice reiterated its established case-law according to which the decisive criteria for evaluating the lawfulness of a news report mentioning the name of the person concerned were the nature of the offence and the person of the suspect. The facts of the case were a fine and a prohibition on driving imposed by the French courts for speeding on a motorway (211 instead of 130 km per hour) on a person known to the public. The Federal Court of Justice found, firstly, that the speed limit had been exceeded to such an extent that it could be regarded as an expression of extreme contempt for the highway regulations, and, secondly, that the offence had put other motorists at considerable risk. Moreover, both the manner in which the person concerned had behaved in public in the past and his origins and the fact that he was the husband of a very well-known individual meant that the interest of the press in publishing a news report prevailed over the right to protection of the personality rights of the person concerned. The Federal Court of Justice pointed out that the Court’s judgment in the case of Von Hannover v. Germany of 24 June 2004 (no. 59320/00, ECHR 2004 ‑ VI) allowed of no other conclusion. The articles (and photos) in that case had concerned only scenes from Caroline von Hannover’s daily life, and had aimed merely to satisfy the curiosity of a particular readership regarding her private life. 49. In a decision of 13 June 2006 (no. 1 BvR 565/06), a three-judge panel of the Federal Constitutional Court decided not to entertain a constitutional appeal lodged against the judgment of the Federal Court of Justice and upheld the latter’s findings. B. Texts adopted by the Council of Europe 1. Recommendation Rec(2003)13 of the Committee of Ministers 50. The relevant passages of Recommendation (Rec(2003)13 of the Committee of Ministers to member states on the provision of information through the media in relation to criminal proceedings, adopted on 10 July 2003 at the 848 th meeting of the Ministers’ Deputies, read as follows:- “... Recalling that the media have the right to inform the public due to the right of the public to receive information, including information on matters of public concern, under Article 10 of the Convention, and that they have a professional duty to do so; Recalling that the rights to presumption of innocence, to a fair trial and to respect for private and family life under Articles 6 and 8 of the Convention constitute fundamental requirements which must be respected in any democratic society; Stressing the importance of media reporting in informing the public on criminal proceedings, making the deterrent function of criminal law visible as well as in ensuring public scrutiny of the functioning of the criminal justice system; Considering the possibly conflicting interests protected by Articles 6, 8 and 10 of the Convention and the necessity to balance these rights in view of the facts of every individual case, with due regard to the supervisory role of the European Court of Human Rights in ensuring the observance of the commitments under the Convention; ... Recommends, while acknowledging the diversity of national legal systems concerning criminal procedure, that the governments of member states: 1. take or reinforce, as the case may be, all measures which they consider necessary with a view to the implementation of the principles appended to this recommendation, within the limits of their respective constitutional provisions, ... Appendix to Recommendation Rec(2003)13 Principles concerning the provision of information through the media in relation to criminal proceedings Principle 1 - Information of the public via the media The public must be able to receive information about the activities of judicial authorities and police services through the media. Therefore, journalists must be able to freely report and comment on the functioning of the criminal justice system, subject only to the limitations provided for under the following principles. Principle 2 - Presumption of innocence Respect for the principle of the presumption of innocence is an integral part of the right to a fair trial. Accordingly, opinions and information relating to on-going criminal proceedings should only be communicated or disseminated through the media where this does not prejudice the presumption of innocence of the suspect or accused. Principle 3 - Accuracy of information Judicial authorities and police services should provide to the media only verified information or information which is based on reasonable assumptions. In the latter case, this should be clearly indicated to the media. Principle 4 - Access to information When journalists have lawfully obtained information in the context of on-going criminal proceedings from judicial authorities or police services, those authorities and services should make available such information, without discrimination, to all journalists who make or have made the same request. (...) Principle 8 - Protection of privacy in the context of on-going criminal proceedings The provision of information about suspects, accused or convicted persons or other parties to criminal proceedings should respect their right to protection of privacy in accordance with Article 8 of the Convention. Particular protection should be given to parties who are minors or other vulnerable persons, as well as to victims, to witnesses and to the families of suspects, accused and convicted. In all cases, particular consideration should be given to the harmful effect which the disclosure of information enabling their identification may have on the persons referred to in this Principle.” 2. Resolution 1165 (1998) of the Parliamentary Assembly of the Council of Europe on the right to privacy 51. The relevant passages of this resolution, adopted by the Parliamentary Assembly on 26 June 1998, read as follows:- “... 6. The Assembly is aware that personal privacy is often invaded, even in countries with specific legislation to protect it, as people’s private lives have become a highly lucrative commodity for certain sectors of the media. The victims are essentially public figures, since details of their private lives serve as a stimulus to sales. At the same time, public figures must recognise that the special position they occupy in society - in many cases by choice - automatically entails increased pressure on their privacy. 7. Public figures are persons holding public office and/or using public resources and, more broadly speaking, all those who play a role in public life, whether in politics, the economy, the arts, the social sphere, sport or in any other domain. 8. It is often in the name of a one-sided interpretation of the right to freedom of expression, which is guaranteed in Article 10 of the European Convention on Human Rights, that the media invade people’s privacy, claiming that their readers are entitled to know everything about public figures. 9. Certain facts relating to the private lives of public figures, particularly politicians, may indeed be of interest to citizens, and it may therefore be legitimate for readers, who are also voters, to be informed of those facts. 10. It is therefore necessary to find a way of balancing the exercise of two fundamental rights, both of which are guaranteed by the European Convention on Human Rights: the right to respect for one’s private life and the right to freedom of expression. 11. The Assembly reaffirms the importance of every person’s right to privacy, and of the right to freedom of expression, as fundamental to a democratic society. These rights are neither absolute nor in any hierarchical order, since they are of equal value. 12. However, the Assembly points out that the right to privacy afforded by Article 8 of the European Convention on Human Rights should not only protect an individual against interference by public authorities, but also against interference by private persons or institutions, including the mass media. 13. The Assembly believes that, since all member states have now ratified the European Convention on Human Rights, and since many systems of national legislation comprise provisions guaranteeing this protection, there is no need to propose that a new convention guaranteeing the right to privacy should be adopted. ...” THE LAW I. DISJOINDER OF THE APPLICATION 52. The Court notes that before relinquishing jurisdiction in favour of the Grand Chamber the Chamber had joined the present application to the applications in Von Hannover v. Germany (nos. 40660/08 and 60641/08) – see paragraph 3 above). Having regard, however, to the nature of the facts and the substantive issues raised in those cases, the Grand Chamber considers it appropriate to disjoin applications nos. 40660/08 and 60641/08 from the present application. II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 53. The applicant company complained about the injunction imposed on it against reporting on the arrest and conviction of X. It relied on Article 10 of the Convention, the relevant parts of which read as follows: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. ... 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society ... for the protection of the reputation or rights of others ... or for maintaining the authority and impartiality of the judiciary.” A. Admissibility 54. The Court observes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 a) of the Convention. It notes further that no other ground for declaring it inadmissible has been established and that it must therefore be declared admissible. B. Merits 1. The parties’ submissions (a) The Government 55. The Government acknowledged that the impugned court decisions amounted to an interference with the applicant company’s right to freedom of expression. However, the interference was prescribed by law and pursued an aim recognised as legitimate by the Court, namely, the protection of the private sphere ( News Verlags GmbH & Co.KG v. Austria, no. 31457/96, § 44, ECHR 2000 ‑ I). The question at issue between the parties in the present case was whether the interference had been proportionate, and in particular whether the balancing exercise undertaken by the national courts of the applicant company’s right to freedom of expression against X’s right to respect for his private life was in conformity with the criteria established by the Court’s case-law. In that connection regard had to be had to the role of the person concerned, the purpose of the publication and the severity of the sanction imposed on the press. 56. The Government referred to the national courts’ finding that, unlike Superintendent Y, X was not well known to the public and accordingly could not be regarded as a public figure. In its judgment concerning the second article, the Regional Court had, moreover, differentiated X from Prince Ernst August von Hannover (see paragraph 39 above). The press interviews given by X had not been sufficient in themselves to increase the public’s interest in his person. In the Government’s submission, the task of assessing how well a person was known to the public should fall to the domestic courts. That was particularly true in borderline cases, which required an assessment of the facts and of social situations that the Court could not undertake in respect of each and every potential public figure in 47 States. 57. With regard to the subject matter of media reports, the Government acknowledged that where the press reported on the commission of an offence it was generally playing its role as “public watchdog”, in particular where criminal proceedings were concerned. There was a greater public interest in this case than when the press merely reported details of the private life of an individual. In the present case, however, the public had no interest in being informed about the offence committed by X, whom they could not have dissociated from the person of the defendant. The present case had not called into question the workings of the justice system, like the case of Obukhova v. Russia (no. 34736/03, 8 January 2009), but had concerned only a minor drugs-related offence committed by a relatively well-known actor. 58. The task of assessing the seriousness of the offence should fall within the margin of appreciation of the national authorities. In the instant case the courts considered that the offence was of medium, or even minor, seriousness. The Government pointed out that the amount of the fine was relatively high on account of X’s income. The criminal courts had fixed the amount at 90 day-fines, so the offence did not appear in X’s certificate of good conduct (destined for employers) or in his criminal record. 59. The Government disputed the applicant company’s allegation that the Munich prosecutor had held a press conference and published a press release about X’s arrest prior to publication of the first article (see paragraph 69 below). 60. As regards the nature of the penalty imposed on the applicant company, the Government observed that the latter had merely been prevented from publishing the content of the articles in question and had been ordered to reimburse modest legal costs. The applicant company had neither been convicted under criminal law nor ordered to pay damages, unlike publishers in other cases who had been given a custodial sentence; nor had it been prevented from carrying on the profession of journalist or faced an order for the seizure of all copies of the particular edition of a newspaper or an order to pay hefty damages ( Cumpǎnǎ and Mazǎre v. Romania [GC], no. 33348/96, § 112, ECHR 2004 ‑ XI; Wirtschafts-Trend Zeitschriften-Verlags GmbH v. Austria, no. 58547/00, § 41, 27 October 2005; and Flinkkilä and Others v. Finland, no. 25576/04, § 89, 6 April 2010). The Government added that the German courts had not, moreover, imposed a blanket ban on all reporting of X’s arrest and trial; the problem had been that the applicant company had failed to maintain the anonymity of the actor at the time of his arrest and prior to the trial. 61. The Government highlighted the margin of appreciation enjoyed by the State in the present case. That margin depended on the nature of the activities in question and the aim pursued by the restrictions. In its recent case-law, the Court had moreover left the State a broad margin of appreciation in cases concerning Article 8 of the Convention. ( Armonienė v. Lithuania, no. 36919/02, § 38, 25 November 2008, and A. v. Norway, no. 28070/06, § 66, 9 April 2009). Generally speaking, the margin enjoyed by the States was broader where there was no European consensus. In the Government’s submission, whilst there was admittedly a trend towards harmonisation of the legal systems in Europe, differences nevertheless remained, as evidenced by the failure of the negotiations for the adoption of a regulation of the European Union on conflict-of-law rules regarding non-contractual obligations (Regulation EC No. 864/2007 of 11 July 2007 – Rome II Regulation). The margin of appreciation was also broad where the national authorities had to strike a balance between competing private and public interests or Convention rights ( Evans v. the United Kingdom [GC], no. 6339/05, § 77, ECHR 2007 ‑ I, and Dickson v. the United Kingdom [GC], no. 44362/04, § 78 ECHR 2007 ‑ XIII). Moreover, the case-law of the Court of Justice of the European Union apparently took the same approach (cases of Omega of 14 October 2004, C ‑ 36/02, and Schmidberger of 12 June 2003, C-112/00). 62. The Government argued that the special nature of certain cases, such as the present one, in which the domestic courts were required to balance the rights and interests of two or more private individuals lay in the fact that the proceedings before the Court were in fact a continuation of the original legal action, with each party to the domestic proceedings potentially able to apply to the Court. It was precisely for that reason that one result alone of the balancing exercise of the competing interests was insufficient, and that there should be a “corridor” of solutions within the confines of which the national courts should be allowed to give decisions in conformity with the Convention. Failing that, the Court would have to take the decision on every case itself, which could hardly be its role. 63. The Government stated that there had been slightly less of a tendency to do this at domestic level because the Federal Constitutional Court granted the ordinary courts a margin of appreciation in that respect and refrained from carrying out its own balancing exercise in their stead. That could, moreover, explain the absence of reasons given for the decision of the Federal Constitutional Court in the present case. The tendency, at national level, to reduce the scope of review by a constitutional court should apply a fortiori to the European Court of Human Rights, which had the task of examining the outcome of balancing exercises carried out by the courts in 47 Contracting States, whose legal systems were still very heterogeneous. 64. In the Government’s submission, the Court should intervene only where the domestic courts had not taken account of certain specific circumstances when undertaking the balancing exercise or where the result of that exercise was patently disproportionate ( Cumpănă and Mazăre, cited above, §§ 111 ‑ 120). That conclusion was confirmed, moreover, by Article 53 of the Convention: where the relationship between State and citizen was concerned, a gain of freedom for the individual concerned involved only a loss of competence for the State, whereas in the relationship between two citizens the fact of attaching more weight to the right of one of the persons concerned restricted the right of the others, which was forbidden under Article 53 of the Convention. (b) The applicant company 65. The applicant company maintained that at the material time X was a well-known actor who played the main role in a television crime series that was extremely popular, especially among young male adults; X had, moreover, been voted second most popular actor in 2002. He was not therefore just an ordinary individual who did not attract media attention, as had been so in other cases decided by the Court (see, inter alia, Sciacca v. Italy, no. 50774/99, ECHR 2005 ‑ I; Toma v. Romania, no. 42716/02, 24 February 2009; and Egeland and Hanseid v. Norway, no. 34438/04, 16 April 2009). 66. In the applicant company’s submission, the commission of a criminal offence was, by its very nature, never a purely private matter. Furthermore, in the present case X was a repeat offender as he had already been given a five-month suspended prison sentence in July 2000 and fined EUR 5,000 for possession of drugs. 67. The public’s interest in being informed prevailed over X’s right to respect for his private life. X had – of his own initiative – courted public attention, had a market value corresponding to his high profile, had willingly allowed photos to be taken of himself on public occasions and had given press interviews revealing aspects of his private life, including his drug consumption. As a role model and having himself entered the public arena, X should have accepted that he would attract the public’s attention, in particular if he committed a criminal offence. The applicant company argued that anyone who used the media for self-promotion should expect their conduct to be truthfully reported on by the media. This was particularly true in X’s case because, following his first conviction for possession of drugs, he had asserted that he had given up taking drugs. He had accordingly waived his right to privacy. 68. The applicant company stated, further, that the truth of the facts reported in the articles in question was not disputed (citing, conversely, Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, ECHR 2004 ‑ XI). The information given had, moreover, not affected the conduct of the preliminary investigation or the trial (citing, conversely, Tourancheau and July v. France, no. 53886/00, 24 November 2005); it had included details not only about X’s private life, but also serious factual information about criminal law and the consequences of drug taking. The present case was thus distinguishable from the case of Von Hannover (cited above), especially as, unlike X, the applicant in that case had always sought to protect her private life. 69. The applicant company reiterated that it had reported on X’s arrest after the prosecution authorities had disclosed the facts and the identity of the person arrested. In its submissions at the hearing, particularly in reply to the judges’ questions, it had stated that prior to publication of the articles the Munich public prosecutor’s office had held a press conference – in the presence of television cameras – during which it had provided detailed information. The public prosecutor’s office had also published a long press release on the subject. Accordingly, the applicant company had published only information that had already been made public. It would be demotivating for journalists not to be able to publish such information. Attending a press conference would be a complete waste of time. 70. In conclusion, the applicant company submitted that the press should not be reduced to reporting only on political figures. Since prominent persons were able to establish a certain image of themselves by seeking the attention of the media, the latter should be permitted to correct that image when it no longer corresponded to the reality. It was not a question of asserting the primacy of the freedom of expression over the right to respect for private life. Freedom of expression should, however, prevail where the person concerned enjoyed a more than regional degree of prominence and had freely engaged in his or her self-promotion. 2. Third parties’ observations (a) Media Lawyers Association 71. The third-party association submitted that the right to reputation was not protected by the Convention. Publication of a defamatory article about a person did not, of itself, amount to an interference with the exercise of the rights guaranteed under Article 8. When balancing the rights under Articles 8 and 10 of the Convention wide and strong protection should be given to the right of the media to report on all matters of public interest and in particular to inform the public about judicial proceedings. The third-party association observed that the inclusion of a person’s name or other identifying detail played an important part in fulfilling the task of informing the public. 72. According to a United Kingdom Supreme Court ruling, if the names of the parties were not revealed when reporting on court proceedings the report would be disembodied, readers would be less interested and editors would give the report lower priority. The Media Lawyers Association also stressed the importance of preserving a wide editorial discretion and the principle of open justice to which the media contributed an essential element, adding that there should be no incursion into that principle except where strictly necessary such as protecting a defendant or witness by anonymity. Other than in those circumstances, there should be no restriction on the right of the media to publish reports on court proceedings including photographs. (b) Joint submissions by the Media Legal Defence Initiative, International Press Institute and World Association of Newspapers and News Publishers 73. The three third-party associations submitted that a broad trend could be observed across the Contracting States towards the assimilation by the national courts of the principles and standards articulated by the Court relating to the balancing of the rights under Article 8 against those under Article 10 of the Convention, even if the individual weight given to a particular factor might vary from one State to another. They invited the Court to grant a broad margin of appreciation to the Contracting States, submitting that such was the thrust of Article 53 of the Convention. They referred to the Court’s judgment in the case of Chassagnou and Others v. France ([GC], nos. 25088/94, 28331/95 and 28443/95, § 113, ECHR 1999 ‑ III), submitting that the Court had indicated that it would allow Contracting States a wide margin of appreciation in situations of competing interests. 74. The Contracting States were likewise generally granted a wider margin in respect of positive obligations in relationships between private parties or other areas in which opinions within a democratic society might reasonably differ significantly ( Fretté v. France, no. 36515/97, § 41, ECHR 2002 ‑ I). The Court had, moreover, already allowed the Contracting States a broad margin of appreciation in a case concerning a balancing exercise in respect of rights under Articles 8 and 10 of the Convention ( A. v. Norway, cited above, § 66). Its role was precisely to confirm that the Contracting States had put in place a mechanism for the determination of a fair balance and whether particular factors taken into account by the national courts in striking such a balance were consistent with the Convention and its case-law. It should only intervene where the domestic courts had considered irrelevant factors to be significant or where the conclusions reached by the domestic courts were clearly arbitrary or summarily dismissive of the privacy or reputational interests at stake. Otherwise, it ran the risk of becoming a court of appeal for such cases. 3. The Court’s assessment 75. The parties agreed that the judicial decisions given in the present case constituted an interference with the applicant company’s right to freedom of expression as guaranteed by Article 10 of the Convention. 76. Such interference contravenes the Convention if it does not satisfy the requirements of paragraph 2 of Article 10. It therefore falls to be determined whether the interference was “prescribed by law”, had an aim or aims that is or are legitimate under Article 10 § 2 and was “necessary in a democratic society” for the aforesaid aim or aims. 77. It is common ground between the parties that the interference was prescribed by Articles 823 § 1 and 1004 § 1 of the Civil Code (see paragraphs 18 and 47 above), read in the light of the right to protection of personality rights. They also agree that it pursued a legitimate aim – namely, the protection of the reputation or rights of others – within the meaning of Article 10 § 2 of the Convention, which, according to the Court’s case-law ( Chauvy and Others v. France, no. 64915/01, § 70, ECHR 2004 ‑ VI, and Pfeifer v. Austria, no. 12556/03, § 35, 15 November 2007), can encompass the right to respect for private life within the meaning of Article 8. The parties disagree, however, as to whether the interference was “necessary in a democratic society”. (a) General principles (i) Freedom of expression 78. Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no “democratic society”. As set forth in Article 10, freedom of expression is subject to exceptions, which must, however, be construed strictly, and the need for any restrictions must be established convincingly (see, among other authorities, Handyside v. the United Kingdom, 7 December 1976, § 49, Series A no. 24; Editions Plon v. France, no. 58148/00, § 42, ECHR 2004 ‑ IV; and Lindon, Otchakovsky ‑ Laurens and July v. France [GC], nos. 21279/02 and 36448/02, § 45, ECHR 2007 ‑ IV). 79. The Court has also repeatedly emphasised the essential role played by the press in a democratic society. Although the press must not overstep certain bounds, regarding in particular protection of the reputation and rights of others, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest. Not only does the press have the task of imparting such information and ideas; the public also has a right to receive them. Were it otherwise, the press would be unable to play its vital role of “public watchdog” (see Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, §§ 59 and 62, ECHR 1999 ‑ III, and Pedersen and Baadsgaard, cited above, § 71). 80. This duty extends to the reporting and commenting on court proceedings which, provided that they do not overstep the bounds set out above, contribute to their publicity and are thus consonant with the requirement under Article 6 § 1 of the Convention that hearings be public. It is inconceivable that there can be no prior or contemporaneous discussion of the subject matter of trials, be it in specialised journals, in the general press or amongst the public at large. Not only do the media have the task of imparting such information and ideas; the public also has a right to receive them (see News Verlags GmbH & Co. KG v. Austria, no. 31457/96, § 56, ECHR 2000 ‑ I; Dupuis and Others v. France, no. 1914/02 § 35, ECHR 2007 ‑ VII; and Campos Dâmaso v. Portugal, no. 17107/05, § 31, 24 April 2008). 81. Journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation (see Pedersen and Baadsgaard, cited above, § 71). Furthermore, it is not for the Court, any more than it is for the national courts, to substitute its own views for those of the press as to what techniques of reporting should be adopted in a particular case (see Jersild v. Denmark, 23 September 1994, § 31, Series A no. 298, and Eerikäinen and Others v. Finland, no. 3514/02, § 65, 10 February 2009). (ii) Limits on the freedom of expression 82. However, Article 10 § 2 of the Convention states that freedom of expression carries with it “duties and responsibilities”, which also apply to the media even with respect to matters of serious public concern. These duties and responsibilities are liable to assume significance when there is a question of attacking the reputation of a named individual and infringing the “rights of others”. Thus, special grounds are required before the media can be dispensed from their ordinary obligation to verify factual statements that are defamatory of private individuals. Whether such grounds exist depends in particular on the nature and degree of the defamation in question and the extent to which the media can reasonably regard their sources as reliable with respect to the allegations (see Pedersen and Baadsgaard, cited above, § 78, and Tønsbergs Blad A.S. and Haukom v. Norway, no. 510/04, § 89, ECHR 2007 ‑ III). 83. The Court reiterates that the right to protection of reputation is a right which is protected by Article 8 of the Convention as part of the right to respect for private life (see Chauvy and Others, cited above, § 70; Pfeifer, cited above, § 35; and Polanco Torres and Movilla Polanco v. Spain, no. 34147/06, § 40, 21 September 2010). The concept of “private life” is a broad term not susceptible to exhaustive definition, which covers the physical and psychological integrity of a person and can therefore embrace multiple aspects of a person’s identity, such as gender identification and sexual orientation, name or elements relating to a person’s right to their image (see S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, § 66, ECHR 2008-...). It covers personal information which individuals can legitimately expect should not be published without their consent (see Flinkkilä and Others, cited above, § 75, and Saaristo and Others v. Finland, no. 184/06, § 61, 12 October 2010). In order for Article 8 to come into play, however, an attack on a person’s reputation must attain a certain level of seriousness and in a manner causing prejudice to personal enjoyment of the right to respect for private life (see A. v. Norway, cited above, § 64). The Court has held, moreover, that Article 8 cannot be relied on in order to complain of a loss of reputation which is the foreseeable consequence of one’s own actions such as, for example, the commission of a criminal offence (see Sidabras and Džiautas v. Lithuania, nos. 55480/00 and 59330/00, § 49, ECHR 2004 ‑ VIII). 84. When examining the necessity of an interference in a democratic society in the interests of the “protection of the reputation or rights of others”, the Court may be required to verify whether the domestic authorities struck a fair balance when protecting two values guaranteed by the Convention which may come into conflict with each other in certain cases, namely, on the one hand, freedom of expression protected by Article 10 and, on the other, the right to respect for private life enshrined in Article 8 (see Hachette Filipacchi Associés v. France, no. 71111/01, § 43, 14 June 2007, and MGN Limited v. the United Kingdom, no. 39401/04, § 142, 18 January 2011). (iii) Margin of appreciation 85. The Court reiterates that, under Article 10 of the Convention, the Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent an interference with the freedom of expression guaranteed under that provision is necessary (see Tammer v. Estonia, no. 41205/98, § 60, ECHR 2001 ‑ I, and Pedersen and Baadsgaard, cited above, § 68). 86. However, this margin goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those delivered by an independent court (see Karhuvaara and Iltalehti v. Finland, no. 53678/00, § 38, ECHR 2004 ‑ X, and Flinkkilä and Others, cited above, § 70). In exercising its supervisory function, the Court’s task is not to take the place of the national courts, but rather to review, in the light of the case as a whole, whether the decisions they have taken pursuant to their power of appreciation are compatible with the provisions of the Convention relied on (see Petrenco v. Moldova, no. 20928/05, § 54, 30 March 2010; Polanco Torres and Movilla Polanco, cited above, § 41; and Petrov v. Bulgaria (dec.), no. 27103/04, 2 November 2010). 87. In cases such as the present one the Court considers that the outcome of the application should not, in principle, vary according to whether it has been lodged with the Court under Article 10 of the Convention by the publisher who has published the offending article or under Article 8 of the Convention by the person who was the subject of that article. Indeed, as a matter of principle these rights deserve equal respect (see Hachette Filipacchi Associés ( ICI PARIS ) v. France, no. 12268/03, § 41, 23 July 2009; Timciuc v. Romania (dec.), no. 28999/03, § 144, 12 October 2010; and Mosley v. the United Kingdom, no. 48009/08, § 111, 10 May 2011; see also point 11 of the Resolution of the Parliamentary Assembly – paragraph 51 above). Accordingly, the margin of appreciation should in principle be the same in both cases. 88. Where the balancing exercise between those two rights has been undertaken by the national authorities in conformity with the criteria laid down in the Court’s case-law, the Court would require strong reasons to substitute its view for that of the domestic courts (see MGN Limited, cited above, §§ 150 and 155, and Palomo Sánchez and Others v. Spain [GC], nos. 28955/06, 28957/06, 28959/06 and 28964/06, § 57, 12 September 2011). (iv) Criteria relevant for the balancing exercise 89. Where the right to freedom of expression is being balanced against the right to respect for private life, the criteria laid down in the case-law that are relevant to the present case are set out below. (α) Contribution to a debate of general interest 90. An initial essential criterion is the contribution made by photos or articles in the press to a debate of general interest (see Von Hannover, cited above, § 60; Leempoel & S.A. ED. Ciné Revue v. Belgium, no. 64772/01, § 68, 9 November 2006; and Standard Verlags GmbH v. Austria (no. 2), no. 21277/05 § 46, 4 June 2009). The definition of what constitutes a subject of general interest will depend on the circumstances of the case. The Court nevertheless considers it useful to point out that it has recognised the existence of such an interest not only where the publication concerned political issues or crimes (see White v. Sweden, no. 42435/02, § 29, 19 September 2006; Egeland and Hanseid, cited above, § 58; and Leempoel & S.A. ED. Ciné Revue, cited above, § 72), but also where it concerned sporting issues or performing artists (see Nikowitz and Verlagsgruppe News GmbH v. Austria, no. 5266/03, § 25, 22 February 2007; Colaço Mestre and SIC – Sociedade Independente de Comunicação, S.A. v. Portugal, nos. 11182/03 and 11319/03, § 28, 26 April 2007; and Sapan v. Turkey, no. 44102/04, § 34, 8 June 2010). However, the rumoured marital difficulties of a president of the Republic or the financial difficulties of a famous singer were not deemed to be matters of general interest (see Standard Verlags GmbH, cited above, § 52, and Hachette Filipacchi Associés ( ICI PARIS ), cited above, § 43). (β) How well known is the person concerned and what is the subject of the report? 91. The role or function of the person concerned and the nature of the activities that are the subject of the report and/or photo constitute another important criterion, related to the preceding one. In that connection a distinction has to be made between private individuals and persons acting in a public context, as political figures or public figures. Accordingly, whilst a private individual unknown to the public may claim particular protection of his or her right to private life, the same is not true of public figures (see Minelli v. Switzerland (dec.), no. 14991/02, 14 June 2005, and Petrenco, cited above, § 55). A fundamental distinction needs to be made between reporting facts capable of contributing to a debate in a democratic society, relating to politicians in the exercise of their official functions for example, and reporting details of the private life of an individual who does not exercise such functions (see Von Hannover, cited above, § 63, and Standard Verlags GmbH, cited above, § 47). Whilst in the former case the press exercises its role of “public watchdog” in a democracy by imparting information and ideas on matters of public interest, that role appears less important in the latter case. Similarly, although in certain special circumstances the public’s right to be informed can even extend to aspects of the private life of public figures, particularly where politicians are concerned, this will not be the case – even where the persons concerned are quite well known to the public – where the published photos and accompanying commentaries relate exclusively to details of the person’s private life and have the sole aim of satisfying the curiosity of a particular readership in that respect (see Von Hannover, cited above, § 65 with the references cited therein, and Standard Verlags GmbH, cited above, § 53; see also point 8 of the Resolution of the Parliamentary Assembly – paragraph 51 above). In the latter case, freedom of expression calls for a narrower interpretation (see Von Hannover, cited above, § 66; Hachette Filipacchi Associés ( ICI PARIS ), cited above, § 40; and MGN Limited, cited above, § 143). (γ) Prior conduct of the person concerned 92. The conduct of the person concerned prior to publication of the report or the fact that the photo and the related information have already appeared in an earlier publication are also factors to be taken into consideration (see Hachette Filipacchi Associés ( ICI PARIS ), cited above, §§ 52 and 53, and Sapan, cited above, § 34). However, the mere fact of having cooperated with the press on previous occasions cannot serve as an argument for depriving the party concerned of all protection against publication of the report or photo at issue (see Egeland and Hanseid, cited above, § 62). (δ) Method of obtaining the information and its veracity 93. The way in which the information was obtained and its veracity are also important factors. Indeed, the Court has held that the safeguard afforded by Article 10 to journalists in relation to reporting on issues of general interest is subject to the proviso that they are acting in good faith and on an accurate factual basis and provide “reliable and precise” information in accordance with the ethics of journalism (see, for example, Fressoz and Roire v. France [GC], no. 29183/95, § 54, ECHR 1999-I; Pedersen and Baadsgaard, cited above, § 78; and Stoll v. Switzerland [GC], no. 69698/01, § 103, ECHR 2007-V). (ε) Content, form and consequences of the publication 94. The way in which the photo or report are published and the manner in which the person concerned is represented in the photo or report may also be factors to be taken into consideration (see Wirtschafts-Trend Zeitschriften-Verlagsgesellschaft m.b.H. v. Austria (no. 3), nos. 66298/01 and 15653/02, § 47, 13 December 2005; Reklos and Davourlis v. Greece, no. 1234/05, § 42, 15 January 2009; and Jokitaipale and Others v. Finland, no. 43349/05, § 68, 6 April 2010). The extent to which the report and photo have been disseminated may also be an important factor, depending on whether the newspaper is a national or local one, and has a large or a limited circulation (see Karhuvaara and Iltalehti, cited above, § 47, and Gurgenidze v. Georgia, no. 71678/01, § 55, 17 October 2006). (ζ) Severity of the sanction imposed 95. Lastly, the nature and severity of the sanctions imposed are also factors to be taken into account when assessing the proportionality of an interference with the exercise of the freedom of expression (see Pedersen and Baadsgaard, cited above, § 93, and Jokitaipale and Others, cited above, § 77). (b) Application to the present case (i) Contribution to a debate of general interest 96. The Court notes that the articles in question concern the arrest and conviction of the actor X, that is, public judicial facts that may be considered to present a degree of general interest. The public do, in principle, have an interest in being informed – and in being able to inform themselves – about criminal proceedings, whilst strictly observing the presumption of innocence (see News Verlags GmbH & Co. KG, cited above, § 56; Dupuis and Others, cited above, § 37; and Campos Dâmaso, cited above, § 32; see also Recommendation Rec(2003)13 of the Committee of Ministers and in particular principles nos. 1 and 2 appended thereto – paragraph 50 above). That interest will vary in degree, however, as it may evolve during the course of the proceedings – from the time of the arrest – according to a number of different factors, such as the degree to which the person concerned is known, the circumstances of the case and any further developments arising during the proceedings. (ii) How well known is the person concerned and what is the subject of the report? 97. The Court notes the substantially different conclusions reached by the national courts in assessing how well known X was. In the Regional Court’s opinion, X was not a figure at the centre of public attention and had not courted the public to a degree that he could be considered to have waived his right to the protection of his personality rights, despite being a well-known actor and frequently appearing on television (see paragraph 23 above). The Court of Appeal, however, found that X was a well-known and very popular figure and had played the part of a police superintendent over a long period of time without himself having become a model law-enforcement officer, which would have justified the public’s interest in the question whether in his private life he actually behaved like his character (see paragraphs 33 and 34 above). 98. The Court considers that it is, in principle, primarily for the domestic courts to assess how well known a person is, especially where that person is mainly known at national level. It notes in the present case that at the material time X was the main actor in a very popular detective series, in which he played the main character, Superintendent Y. The actor’s popularity was mainly due to that television series, of which, when the first article appeared, 103 episodes had been broadcast, the last 54 of which had starred X in the role of Superintendent Y. Accordingly, he was not, as the Regional Court appeared to suggest, a minor actor whose renown, despite a large number of appearances in films (more than 200 – see paragraph 22 above), remained limited. It should also be noted in that connection that the Court of Appeal referred not only to the existence of X’s fan clubs, but also to the fact that his admirers could have been encouraged to imitate him by taking drugs, if the offence had not been committed out of public view (see paragraph 32 above). 99. Furthermore, whilst it can be said that the public does generally make a distinction between an actor and the character he or she plays, there may nonetheless be a close link between the popularity of the actor in question and his or her character where, as in the instant case, the actor is mainly known for that particular role. In the case of X, that role was, moreover, that of a police superintendent, whose mission was law enforcement and crime prevention. That fact was such as to increase the public’s interest in being informed of X’s arrest for a criminal offence. Having regard to those factors and to the terms employed by the domestic courts in assessing the degree to which X was known to the public, the Court considers that he was sufficiently well known to qualify as a public figure. That consideration thus reinforces the public’s interest in being informed of X’s arrest and of the criminal proceedings against him. 100. With regard to the subject of the articles, the domestic courts found that the offence committed by X was not a petty offence as cocaine was a hard drug. The offence was nevertheless of medium, or even minor, seriousness, owing both to the small quantity of drugs in X’s possession – which, moreover, were for his own personal consumption – and to the high number of offences of that type and related criminal proceedings. The domestic courts did not attach much importance to the fact that X had already been convicted of a similar offence, pointing out that this had been his only previous offence and, moreover, had been committed some years previously. They concluded that the applicant company’s interest in publishing the articles in question was solely due to the fact that X had committed an offence which, if it had been committed by a person unknown to the public, would probably never have been reported on (see paragraph 20 above). The Court can broadly agree with that assessment. It would observe, however, that X was arrested in public, in a tent at the beer festival in Munich. In the Court of Appeal’s opinion, that fact was a matter of important public interest in this case, even if that interest did not extend to the description and characterisation of the offence in question as it had been committed out of public view. (iii) X’s conduct prior to publication of the impugned articles 101. Another factor is X’s prior conduct vis-à-vis the media. He had himself revealed details about his private life in a number of interviews (see paragraph 25 above). In the Court’s view, he had therefore actively sought the limelight, so that, having regard to the degree to which he was known to the public, his “legitimate expectation” that his private life would be effectively protected was henceforth reduced (see, mutatis mutandis, Hachette Filipacchi Associés ( ICI PARIS ), cited above, § 53, and, by converse implication, Eerikäinen and Others, cited above, § 66). (iv) Method of obtaining the information and its veracity 102. With regard to the method of obtaining the published information, the applicant company submitted that it had reported on X’s arrest only after the disclosure, by the prosecuting authorities, of the facts and of the identity of the accused. It also asserted that all the information that it had published had already been made public, particularly during a press conference and in a press release issued by the public prosecutor’s office (see paragraph 69 above). The Government denied that any such press conference had been held by the public prosecutor’s office and submitted that it was not until after the applicant company had published the first article that the prosecutor W. had confirmed to other media the facts related by the applicant company. 103. The Court observes that it cannot be determined from the documents in its possession whether or not the applicant company’s assertions that a press conference had been held and a press release issued prior to publication of the first article are substantiated. On the contrary, following a question put by the Court at the hearing the assertions in question turned out to be unfounded. The Court finds the attitude of the applicant company regrettable in this respect. 104. It can be seen, however, from the court decisions delivered in the present case and the observations of the parties to the domestic proceedings that this point was not dealt with before the domestic courts. For the purposes of examination of the present case, the Court will merely observe that the applicant company attached to all its replies in the various domestic proceedings a statement by one of its journalists as to how the information published on 29 September 2004 had been obtained (see paragraphs 11 and 12 above) and that the Government have not contested the truth of that statement. Consequently, whilst the applicant company is not justified in claiming that it had merely published information made public at a press conference held by the Munich public prosecutor’s office, the fact remains that the confirmation of the published information, and in particular X’s identity, emanated from the police and the prosecutor W., who was, moreover, press officer for the Munich public prosecutor’s office at the time. 105. Consequently, as the first article was based on information provided by the press officer at the Munich public prosecutor’s office, it had a sufficient factual basis (see Bladet Tromsø and Stensaas, cited above, § 72; Eerikäinen and Others, cited above, § 64; and Pipi v. Turkey (dec.), no. 4020/03, 15 May 2009). The truth of the information related in both articles was, moreover, not in dispute between the parties to the domestic proceedings, and neither is it in dispute between the parties to the proceedings before the Court (see Karhuvaara and Iltalehti, cited above, § 44). 106. However, in the opinion of the domestic courts examining the case, the fact that the information had emanated from the Munich public prosecutor’s office merely meant that the applicant company could rely on its veracity; it did not dispense it from the duty to balance its interest in publishing the information against X’s right to respect for his private life. They found that that balancing exercise could only be undertaken by the press because a public authority was not in a position to know how or in what form the information would be published (see paragraphs 27-30 above). 107. In the Court’s opinion, there is nothing to suggest that such a balancing exercise was not undertaken. The fact is, however, that having regard to the nature of the offence committed by X, the degree to which X is well known to the public, the circumstances of his arrest and the veracity of the information in question, the applicant company – having obtained confirmation of that information from the prosecuting authorities themselves – did not have sufficiently strong grounds for believing that it should preserve X’s anonymity. In that context, it should also be pointed out that all the information revealed by the applicant company on the day on which the first article appeared was confirmed by the prosecutor W. to other magazines and to television channels. Likewise, when the second article appeared, the facts leading to X’s conviction were already known to the public (see, mutatis mutandis, Aleksey Ovchinnikov v. Russia, no. 24061/04, § 49, 16 December 2010). Moreover, the Court of Appeal itself considered that the applicant company’s liability did not extend beyond minor negligence given that the information disclosed by the public prosecutor’s office had led it to believe that the report was lawful (see paragraph 35 above). In the Court’s view, it has not therefore been shown that the applicant company acted in bad faith when publishing the articles in question. (v) Content, form and consequences of the impugned articles 108. The Court observes that the first article merely related X’s arrest, the information obtained from W. and the legal assessment of the seriousness of the offence by a legal expert (see paragraph 13 above). The second article only reported the sentence imposed by the court at the end of a public hearing and after X had confessed (see paragraph 15 above). The articles did not therefore reveal details about X’s private life, but mainly concerned the circumstances of and events following his arrest (see Flinkkilä and Others, cited above, § 84, and Jokitaipale and Others, cited above, § 72). They contained no disparaging expression or unsubstantiated allegation (see the case-law cited in paragraph 82 above). The fact that the first article contained certain expressions which, to all intents and purposes, were designed to attract the public’s attention cannot in itself raise an issue under the Court’s case-law (see Flinkkilä and Others, cited above, § 74, and Pipi, above-cited decision). The Court notes, moreover, that the Regional Court imposed an injunction on publication of the photos accompanying the impugned articles and that the applicant company did not challenge that injunction. It therefore considers that the form of the articles in question did not constitute a ground for banning their publication. Furthermore, the Government did not show that publication of the articles had resulted in serious consequences for X. (vi) Severity of the sanction imposed on the applicant company 109. Regarding, lastly, the severity of the sanctions imposed on the applicant company, the Court considers that, although these were lenient, they were capable of having a chilling effect on the applicant company. In any event, they were not justified in the light of the factors set out above. (c) Conclusion 110. In conclusion, the grounds advanced by the respondent State, although relevant, are not sufficient to establish that the interference complained of was necessary in a democratic society. Despite the margin of appreciation enjoyed by the Contracting States, the Court considers that there is no reasonable relationship of proportionality between, on the one hand, the restrictions imposed by the national courts on the applicant company’s right to freedom of expression and, on the other hand, the legitimate aim pursued. 111. Accordingly, there has been a violation of Article 10 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 112. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 113. The applicant company claimed EUR 27,734.28 in respect of pecuniary damage, corresponding to the three penalties that it had had to pay X (EUR 11,000 – see paragraphs 31 and 46 above), and X’s legal costs (EUR 1,261.84 – paragraphs 18 and 40 above) and lawyers’ fees (EUR 15,472.44 ) which it had had to reimburse. It referred, on the latter point, to the case of Verlagsgruppe News GmbH v. Austria (no. 2), (no. 10520/02, § 46, 14 December 2006). 114. The Government did not comment in that connection. 115. The Court finds that there is a sufficient causal link between the violation found and the amounts claimed, except those corresponding to the two penalty payments of EUR 5,000. Accordingly, it awards EUR 17,734.28 under this head. B. Costs and expenses 116. The applicant company sought EUR 32,522.80 in respect of costs and expenses. That sum included court costs (EUR 6,610) and lawyers’ fees for the proceedings before the civil courts (EUR 13,972.50), the Federal Constitutional Court (EUR 5,000) and the Court (EUR 5,000), plus translation costs for the proceedings before the Court (EUR 1,941.30). The applicant company specified that although it had agreed on a higher amount of fees with its lawyers, it was claiming only the amounts provided for in the statutory fee scales. With regard to the amounts claimed for lodging the appeal with the Federal Constitutional Court and the application before the Court, the applicant company left the matter to the Court’s discretion, whilst specifying that it sought at least EUR 5,000 in respect of each set of proceedings. 117. The Government noted that the applicant company limited its claims for lawyers’ fees to the amounts set out in the scales applicable in Germany, which was not open to criticism. They contested the amounts claimed for the proceedings before the Federal Constitutional Court and before the Court, however, for lack of particulars. They indicated that where the Federal Constitutional Court declined to entertain a constitutional appeal, it generally fixed the value of the subject matter of the case at EUR 4,000. The corresponding lawyers’ fees would in that case amount to EUR 500 inclusive of tax. 118. The Court finds the sums claimed to be reasonable and, accordingly, awards those sums. C. Default interest 119. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 10 (freedom of expression) of the Convention, finding that the restrictions imposed on the applicant company had not been reasonably proportionate to the legitimate aim of protecting the reputation or rights of others. The Court noted, in particular, that the articles in question concerned public judicial facts that could be considered to present a degree of general interest. In addition, the actor was sufficiently well known to qualify as a public figure and the fact that he had been arrested in public and had actively sought the limelight by revealing details about his private life in a number of interviews meant that his legitimate expectation that his private life would be effectively protected was reduced. Moreover, there was nothing to suggest that the applicant company had not undertaken a balancing exercise between its interest in publishing and the actor’s right to respect for his private life. As to the content, form and consequences of the publications, the articles had not revealed details about the actor’s private life, but had mainly concerned the circumstances of his arrest and the outcome of the criminal proceedings. |
467 | Preliminary ruling | II. RELEVANT DOMESTIC AND COMMUNITY LAW 33. Article 234 of the Treaty establishing the European Community (former Article 177 and, since 1 December 2009, Article 267 of the Treaty on the Functioning of the European Union) provides for preliminary rulings of the Court of Justice of the European Communities as follows: “The Court of Justice shall have jurisdiction to give preliminary rulings concerning: (a) the interpretation of this Treaty; (b) the validity and interpretation of acts of the institutions of the Community ...; ... Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court of Justice to give a ruling thereon. Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court of Justice.” 34. In the case of S.r.l. CILFIT and Lanificio di Gavardo S.p.a. v. Ministry of Health (283/81, Rec. 1982, p. 3415) the Court of Justice of the European Communities had received a request from the Italian Court of Cassation for a ruling as to whether the third paragraph of Article 234 of the Treaty establishing the European Community (former Article 177) laid down an obligation to refer a matter which precluded the national court from determining whether the question raised was justified or whether it made that obligation conditional on the prior finding of a reasonable interpretative doubt. In its judgment the Court of Justice explained, firstly, as follows: “... 6. The second paragraph of that article [Article 234] provides that any court or tribunal of a Member State may, if it considers that a decision on a question of interpretation is necessary to enable it to give judgment, request the Court of Justice to give a ruling thereon. The third paragraph of that article provides that, where a question of interpretation is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall, bring the matter before the Court of Justice. 7. That obligation to refer a matter to the Court of Justice is based on cooperation, established with a view to ensuring the proper application and uniform interpretation of Community law in all the Member States, between national courts, in their capacity as courts responsible for the application of Community law, and the Court of Justice. More particularly, the third paragraph of Article [234] seeks to prevent the occurrence within the Community of divergences in judicial decisions on questions of Community law. The scope of that obligation must therefore be assessed, in view of those objectives, by reference to the powers of the national courts, on the one hand, and those of the Court of Justice, on the other, where such a question of interpretation is raised within the meaning of Article [234]. 8. In this connection, it is necessary to define the meaning for the purposes of Community law of the expression “where any such question is raised” in order to determine the circumstances in which a national court or tribunal against whose decisions there is no judicial remedy under national law is obliged to bring a matter before the Court of Justice. 9. In this regard, it must in the first place be pointed out that Article [234] does not constitute a means of redress available to the parties to a case pending before a national court or tribunal. Therefore the mere fact that a party contends that the dispute gives rise to a question concerning the interpretation of Community law does not mean that the court or tribunal concerned is compelled to consider that a question has been raised within the meaning of Article 177. ...” The Court of Justice went on to observe that courts or tribunals against whose decisions there was no judicial remedy had the same discretion as any other national court or tribunal to ascertain “whether a decision on a question of Community law [was] necessary to enable them to give judgment”. It concluded that they were not obliged to refer a question of interpretation of Community law raised before them in the following situations: (1) where the question was not relevant, in the sense that the answer to the question, regardless of what it might be, could in no way affect the outcome of the case; (2) where the question was materially identical with question which had already been the subject of a preliminary ruling in a similar case, or where previous decisions of the Court had already dealt with the point of law in question, irrespective of the nature of the proceedings which led to those decisions, even though the questions at issue were not strictly identical; or (3) where the correct application of Community law was so obvious as to leave no scope for any reasonable doubt as to the manner in which the question raised was to be resolved (bearing in mind that before it came to this conclusion the national court or tribunal had to be convinced that the matter was equally obvious to the courts of the other member States and to the Court of Justice, and only if those conditions were satisfied could the national court or tribunal refrain from submitting the question to the Court of Justice and take upon itself the responsibility for resolving it). The judgment then concluded as follows (point 21): “... the third paragraph of Article [234] of the EEC treaty is to be interpreted as meaning that a court or tribunal against whose decisions there is no judicial remedy under national law is required, where a question of Community law is raised before it, to comply with its obligation to bring the matter before the Court of Justice, unless it has established that the question raised is irrelevant or that the Community provision in question has already been interpreted by the Court or that the correct application of Community law is so obvious as to leave no scope for any reasonable doubt. The existence of such a possibility must be assessed in the light of the specific characteristics of Community law, the particular difficulties to which its interpretation gives rise and the risk of divergences in judicial decisions within the Community.” 35. Articles 43, 49, 56, 82 and 86 of the Treaty establishing the European Community (Title III “Free Movement of Persons, Services and Capital”) read as follows: Article 43 “Within the framework of the provisions set out below [on the right of establishment], restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State shall be prohibited. Such prohibition shall also apply to restrictions on the setting-up of agencies, branches or subsidiaries by nationals of any Member State established in the territory of any Member State. Freedom of establishment shall include the right to take up and pursue activities as self-employed persons and to set up and manage undertakings, in particular companies or firms within the meaning of the second paragraph of Article 48, under the conditions laid down for its own nationals by the law of the country where such establishment is effected, subject to the provisions of the chapter relating to capital.” Article 49 “Within the framework of the provisions set out below [on services], restrictions on freedom to provide services within the Community shall be prohibited in respect of nationals of Member States who are established in a State of the Community other than that of the person for whom the services are intended. The Council may, acting by a qualified majority on a proposal from the Commission, extend the provisions of the Chapter to nationals of a third country who provide services and who are established within the Community.” Article 56 “1. Within the framework of the provisions set out in this chapter [on capital and payments], all restrictions on the movement of capital between Member States and between Member States and third countries shall be prohibited. 2. Within the framework of the provisions set out in this chapter, all restrictions on payments between Member States and between Member States and third countries shall be prohibited.” Article 82 “Any abuse by one or more undertakings of a dominant position within the common market or in a substantial part of it shall be prohibited as incompatible with the common market in so far as it may affect trade between Member States. ...” Article 86 “1. In the case of public undertakings and undertakings to which Member States grant special or exclusive rights, Member States shall neither enact nor maintain in force any measure contrary to the rules contained in this Treaty, in particular to those rules provided for in Article 12 and Articles 81 to 89. ...” 36. Article 21 ter of the Preliminary Title of the Code of Criminal Procedure reads as follows: “Should the length of criminal proceedings exceed a reasonable time, the court may convict by a mere declaration of guilt or hand down a lesser sentence than that provided for by law ...” THE LAW ... II. ALLEGED VIOLATIONS OF THE RIGHT TO A FAIR HEARING 38. In application no. 3989/07 the applicants complained of a violation by the ordinary courts of their right to a fair hearing. They alleged that the Mons Court of Appeal had not taken account of the incompatibility of Article 3 of Royal Decree no. 143 with Community law, whereas that incompatibility was certain and determined the very existence of the damage alleged by the civil parties. They further criticised the Court of Cassation: for finding that the Brussels Court of Appeal’s ruling on that same question could no longer be challenged in the context of the second appeal on points of law on the ground that it had (apparently) not been challenged in the first; for erroneously giving precedence to the authority of res judicata over the primacy of Community law; and for refusing to uphold their request for a question to be referred to the Court of Justice of the European Communities for a preliminary ruling on the compatibility of Article 3 of Royal Decree no. 143 with Community law and on the principle of the primacy of Community law in relation to the authority of res judicata. They relied on Article 6 § 1 of the Convention, which provides as follows: Article 6 § 1 “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal ...” 39. In application no. 38353/07 the first applicant further complained that there had been a breach of his right to a fair hearing in the context of the proceedings before the Conseil d’Etat, alleging that the latter had failed to take account of the illegality, albeit manifest, of Article 3 of Royal Decree no. 143 in the light of Community law and that it had refused to refer this question to the Court of Justice of the European Communities for a preliminary ruling. In additional observations of 11 June 2009, he added that this refusal was all the more arbitrary as the Conseil d’Etat had shown disregard for the adversarial principle by failing to invite the parties to submit argument as to the scope of the Community case-law on which it relied. ... B. The parties’ arguments 1. The Government 40. The Government referred to the Cilfit judgment of the Court of Justice of the European Communities (cited above), observing that, when receiving a request for a preliminary reference to be made to that court, notwithstanding the wording of the third paragraph of Article 234 of the Treaty establishing the European Community, the “courts or tribunals of a Member State against whose decisions there [was] no judicial remedy under national law”, such as the Conseil d’Etat and the Court of Cassation, had discretion to ascertain whether a decision of the Luxembourg court on a point of Community law was necessary to enable them to give judgment. The Government further observed that there were a number of situations, as enumerated in the Cilfit judgment, in which the national court was not bound by the obligation to refer a matter: where the question of Community law raised before it was not relevant; where an interpretation of the Community-law provision in question had already been given by the Luxembourg court, even if the questions at issue were not strictly identical (notion of “ acte éclairé ”); and where the correct application of Community law was so obvious as to leave no scope for any reasonable doubt (notion of “ acte clair ”). 41. According to the Government, which observed that it was not for this Court to ascertain whether the Belgian courts had correctly applied Community law, the decisions taken in the present case by the Conseil d’Etat and the Court of Cassation fell within those exceptions. 42. They pointed out that the request made to the Conseil d’Etat for a preliminary reference to the Court of Justice concerned questions as to whether Articles 43, 49, 56 of the Treaty establishing the European Community and Article 86, taken together with those Articles and with Article 82, precluded the application of Article 3 of Royal Decree no. 143 of 30 December 1982. The Conseil d’Etat had found that the laboratories referred to in Royal Decree no. 143 were not public undertakings and did not enjoy any exclusive or special rights within the meaning of Article 86 of the Treaty, and that there was no reasonable doubt as to the inapplicability of that provision. The Conseil d’Etat had thus been confronted with an “ acte clair ”, justifying its refusal to grant the request for a preliminary reference. The Conseil d’Etat had further relied on the case-law of the Luxembourg Court to the effect that the Treaty’s provisions in matters of free movement could not be applied to a “purely internal situation”, namely, a situation “where all the facts [were] confined to a single member State” or which, in other words, had no “link” to one of the situations envisaged by Community law. Concluding, with in-depth reasoning, that there were no extraneous factors connecting the dispute to Community law, the Conseil d’Etat had found that the question concerning the compatibility of Article 3 of Royal Decree no. 143 with Articles 43, 49 and 56 of the Treaty did not affect the outcome of the case and that there was no need to refer it to the Court of Justice. 43. According to the Government, as the Community law provisions relied upon were inapplicable, the first applicant’s arguments as to the incompatibility of Article 3 of Royal Decree no. 143 with Community law and his claim that the Conseil d’Etat should have ruled accordingly were irrelevant. 44. As regards the proceedings before the Court of Cassation, the Government first observed that the Mons Court of Appeal, whose judgment was appealed against, had ruled after the quashing of the civil-law part of the Brussels Court of Appeal’s judgment of 7 September 2000, and that it considered itself to be bound by that judgment which, having the authority of res judicata in its criminal-law part, had concluded in particular that Article 3 of Royal Decree no. 143 was compatible with Community law. They emphasised that the judgment of 7 September 2000 had contained comprehensive reasoning, thus showing that the Brussels Court of Appeal had examined the question in depth and without arbitrariness. The Government further observed that the preliminary question that the applicants wished to have referred related in this context to the authority of res judicata of a judicial decision allegedly in breach of Community law. In its judgment of 14 June 2006 the Court of Cassation had legitimately found, in the light of the Court of Justice’s judgments in Eco Swiss, 1 June 1999 (C-126/97) and Kapferer, 16 March 2006 (C-234/04), that Community law did not require national courts to refrain from applying domestic rules of procedure conferring the authority of res judicata on a decision, even if this were necessary in order to prevent a breach of Community law by the decision in question. They added that, whilst the Luxembourg court laid down the principles of equivalence and effectiveness as provisos to the primacy of the res judicata, those principles had been upheld in the present case in so far as the applicants had had the possibility of initiating proceedings for the revision of the Mons Court of Appeal’s judgment with a view to the correct application of European law. In sum, according to the Government, not only was the Luxembourg court’s case-law clear on the point that the applicants wished to have referred to it, but, in addition, the question had already been the subject of a preliminary ruling in a similar case. 45. The Government acknowledged that the applicants had received criminal convictions, which had become final with the Court of Cassation’s judgment of 14 February 2001, partly on the basis of a provision that was likely to have been illegal under Community law. That being said, they emphasised that the European Commission’s reasoned opinion of 17 July 2002 had postdated that judgment and was devoid of authority, and that the Law of 24 May 2005 amending Article 3 of Royal Decree no. 143 had no retrospective effect. As indicated previously, they took the view – without, however, deriving from it any plea of inadmissibility – that, in this very specific normative context, being confronted with the authority of res judicata of the 14 February 2001 judgment, the applicants could have lodged a request for a re-trial. They added that, whilst the conditions for lodging such a request were very restrictive, they were not “excessively difficult”. In the Government’s submission, this possibility preserved the principle of effectiveness, whereby the exercise of rights derived from European law could not be rendered impossible or excessively difficult by the procedure of national courts. 46. The Government added – still without any inference of inadmissibility – that, as regards both the proceedings before the administrative court and those before the ordinary court, the applicants could also have brought, in Belgium, proceedings to establish the State’s responsibility for erroneous application and interpretation of European law in the adjudication. Referring in particular to the judgment of the Court of Justice of the European Communities in Gerhard Köbler v. Austria (30 September 2003, C-224/01, Reports, p. I-10239), they observed in this connection that the member States of the European Union were obliged to make good damage caused to individuals by infringements of Community law for which they were responsible where the rule of Community law infringed was intended to confer rights on individuals, where the breach was sufficiently serious, and where there was a direct causal link between that breach and the loss or damage sustained. In the Government’s submission, that would have afforded the applicants a final opportunity to request the Belgian courts to refer their preliminary questions to the Court of Justice. 2. The applicants 47. The applicants observed that, under Article 234 of the Treaty establishing the European Community, last-instance courts and tribunals had an obligation to refer matters to the Court of Justice of the European Communities for a preliminary ruling on any question of interpretation of the Treaty, and emphasised that the exceptions allowed by that court’s Cilfit case-law had to be construed narrowly. They further observed that the aim of that provision was to introduce cooperation between domestic courts and the Luxembourg court in order to “to prevent discrepancies in the interpretation of Community law and to ensure its uniform application in all member States”. They added that Article 10 of the Treaty establishing the European Community imposed on member States a duty of cooperation and loyal assistance vis-à-vis the Community with, specifically, the objective of uniform interpretation of Community law, and that a refusal to refer a matter on account of a misinterpretation of Community law or a manifestly erroneous assessment of the “absence of doubt” or “obviousness of Community law” tests constituted a breach of Article 10 taken together with Article 234 of the Treaty establishing the European Community. The applicants maintained that the denial of their request for a preliminary reference had arbitrarily deprived them of the protection of Community law and of their access to a “tribunal established by law” (“that to which they were entitled”), and that they had thus been prevented from enjoying effective judicial protection, since the refusals emanated from national courts ruling in the last instance and there was some doubt as to the interpretation of Community law governing the outcome of the dispute. In their view, as a result of the mere existence of such doubt, however tenuous, the refusals to make the preliminary reference had been arbitrary in nature. 48. As regards, more specifically, the proceedings before the Court of Cassation, the applicants took the view that, in rejecting their request for a preliminary reference, that court had wrongly considered the Court of Justice of the European Communities to have already settled the question of the conflict between the authority of res judicata and the primacy of Community law in favour of the former. In their view, the Kapferer judgment, to which the Court of Cassation had referred, only concerned the situation where a court wished to “re-examine” and “quash” a final judicial decision which had been proven incompatible with Community law. The preliminary question they had sought to have submitted had in fact concerned a different situation: not one where a court would have to re-examine or quash a decision that was incompatible with Community law but where it would take another decision based on the former, and thus breach Community law once again. Absent any Community case-law clarifying which of the above-mentioned principles had to take precedence in such a case, the Court of Cassation could not conclude that the application of Community law was so obvious that there was no reasonable doubt as to how the question should be resolved. That court had thus been obliged, under Article 234 of the Treaty establishing the European Community, to refer the matter to Luxembourg. The applicants further relied on the fact that, subsequently, in the Olimpliclub judgment of 3 September 2009 (C-2/08), the Court of Justice had reached a conclusion that supported their position, to the effect that whilst a final decision that was erroneous in the light of Community law should not necessarily be set aside or quashed, it should at least not serve as the basis for other decisions. 49. The applicants further pointed out that it had been impossible for them to lodge an application for revision, in view of the strict and restrictive conditions for the use of this extraordinary remedy. In particular, they would have to prove the existence of a new fact or material circumstance, which were not constituted by the error of law committed by the convicting court or by the enshrining of a new legal solution in case-law. This was necessarily true of a legal opinion such as that given in the present case by the European Commission in its reasoned opinion of 17 July 2002, especially as such an opinion was not binding. They added that in July 2007 they had brought an action for damages before the Brussels Court of First Instance on account of a breach of Community law by the respondent State – declared partly inadmissible for being time-barred in 2009 – but explained that this remedy did not provide redress for the violation of Article 6 § 1 arising from the arbitrary refusal by the Court of Cassation and the Conseil d’Etat to refer their preliminary questions to the Court of Justice. 50. In the applicants’ submission, the refusal by the Conseil d’Etat to refer a matter to the Court of Justice for a preliminary ruling on the application of Articles 43, 49 and 56 of the Treaty establishing the European Community, on account of the “purely internal” nature of the situation, had been similarly arbitrary, for a number of reasons. Firstly, the approach by the highest administrative court in this connection had been an isolated one, as the ordinary courts ruling in the present case had not called into question the applicability of those provisions. Secondly, the Conseil d’Etat had failed to follow the position firmly established by its Auditeur, who had found them applicable. Thirdly, it had thus disregarded the guidelines that the Court of Justice of the European Communities had itself given at a colloquium of the Association of the Councils of State and Supreme Administrative Jurisdictions ( sic ) of the European Union, held in Helsinki on 20 and 21 May 2002, to the effect that the notion of “purely internal situation” should be interpreted very narrowly, that the effects of the preliminary reference procedure should be broadened and that the full scope of Community law should be guaranteed. Fourthly, in assuming that Article 3 of Royal Decree no. 143 did not apply in the same manner to Belgian nationals and other Community nationals, the Conseil d’Etat had taken it for granted that the legislature had decided to create reverse discrimination, whereas that had not been its intention. Fifthly, its conclusion had been based on an error of law as regards the scope of the “purely internal situation” concept. On that last point, the applicants first observed that Community case-law had evolved. Whereas the Luxembourg court traditionally considered that Community law could not be applied in a dispute on the merits that was devoid of any extraneous factors, a “purely internal” situation being one “which did not comprise any elements linking it to the scope of Community law”, it had acknowledged in its Pistre and Others judgment of 7 May 1997 (C-321/94 to C-324/94) that it was possible to apply the rules of free movement of goods even to situations that were apparently purely internal, in so far as the national measure at issue was discriminatory and hindered, at least potentially, intra-Community trade: the test as to whether there was a link to Community law thus included any potential effect of the legislation at issue. (In the applicants’ submission, the rejection by the Conseil d’Etat of their preliminary reference request on the ground that the Pistre judgment concerned the free movement of goods and not, as in the present case, free establishment and the free circulation of services and capital, was devoid of justification.) The Court of Justice had subsequently, in the Guimont judgment of 5 December 2000 (C-448/98), confirmed the application of the Pistre case-law to national rules that were applicable “without distinction”, and had then extended that reasoning to the free movement of capital (see Reisch, 5 March 2002, C-515/99) and to the free movement of services (see a number of judgments delivered in 2005 and 2006: C-250/03, C-451/03, C-94/04 and C-202/04). Therefore, according to the applicants, under Community law as it stood, whenever national rules were applicable to Community nationals they created a situation which was not purely internal, and this was the case for Article 3 of Royal Decree no. 143, since it hindered the establishment in Belgium of anyone wishing to run a clinical biology laboratory. Moreover, nothing in the wording of that decree suggested that its application was confined to situations involving Belgians alone; neither did the law of 2005 amending the decree make any such distinction between Belgian and foreign nationals. The applicants observed that, in any event, there had been concrete extraneous elements in their situation that the Conseil d’Etat had unduly ignored: the capital invested by the first applicant in the Biorim laboratory had come from other member States, Luxembourg in particular; a company established under Luxembourg law was involved in its operation; Community nationals were the actual and potential users of its laboratory services. 51. The refusal to make a preliminary reference concerning the application of Article 86 of the Treaty establishing the European Community, taken together with Articles 43, 49 and 56, was also arbitrary according to the applicants. They argued that the Conseil d’Etat had wrongly found in that connection that clinical biology laboratories could not qualify as undertakings to which Member States granted special or exclusive rights, within the meaning of Article 86, and had then applied the theory of the “ acte clair ” without showing that there was no reasonable doubt on this point. In the applicants’ submission, by reserving the right to operate clinical biology laboratories eligible for sickness insurance coverage to a given category of undertakings (run, in particular, by doctors, pharmacists and persons qualified in chemical sciences accredited to carry out medical tests), Royal Decree no. 143 did indeed grant special or exclusive rights to them within the meaning of Article 86 of the Treaty establishing the European Community. In dismissing that argument, the Conseil d’Etat had merely mentioned factors that had no relevance for the application of that notion (the fact the legislation did not itself designate the accredited laboratories, that the accreditation was not reserved for a limited number of laboratories, and that it could be obtained by any laboratory meeting the requisite conditions), and had not even begun to analyse what the notion specifically entailed. Under Community law, the factors to be taken into account in order to determine the existence of an exclusive or special right consisted in the granting of an advantage to certain undertakings that rendered the activity difficult to carry on for others, and in the creation, through a State-initiated measure, of hindrance to market access, in a non-transparent, discriminatory and disproportionate context. For the applicants, the Conseil d’Etat should at least have found that reasonable doubt existed as to the inapplicability of Article 86 of the Treaty in the present case. B. The Court’s assessment 52. The Court first reiterates that the safeguards of Article 6 § 1, implying the full panoply of safeguards in any judicial procedure, are in principle stricter than, and absorb, those of Article 13 (see Kudła v. Poland [GC], no. 30210/96, § 146, ECHR 2000 ‑ XI). Article 6 § 1 being applicable in the present case – a point that has not in fact been a matter of dispute between the parties –, this part of the applications should be examined under that provision alone. ... 2. Merits 54. The Court reiterates that, under Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention (see García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I). More generally, it is primarily for the national authorities, notably the courts, to interpret and apply domestic law, if necessary in conformity with Community law, the Court’s role being confined to ascertaining whether the effects of such adjudication are compatible with the Convention (see, mutatis mutandis, Waite and Kennedy, cited above, § 54; Streletz, Kessler and Krenz v. Germany [GC], nos. 34044/96, 35532/97 and 44801/98, § 49, ECHR 2001-II; and Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland [GC], no. 45036/98, § 143, ECHR 2005 ‑ VI). 55. That being said, the Court finds that the main question arising in the present case is whether the refusal by the Court of Cassation and the Conseil d’Etat to respond to the applicants’ request to refer to the Court of Justice of the European Communities (now known as the Court of Justice of the European Union), for a preliminary ruling on the interpretation of Community law, questions that they had submitted in the course of proceedings before those courts, entailed a violation of Article 6 § 1 of the Convention. 56. The Court first observes that, under the third paragraph of Article 234 of the Treaty establishing the European Community (former Article 177 and, since 1 December 2009, Article 267 of the Treaty on the Functioning of the European Union), when a question concerning, in particular, the interpretation of the Treaty is raised in a case pending before a national court or tribunal against whose decisions there is no judicial remedy under national law – such as, in the present case, the Court of Cassation and the Conseil d’Etat –, that court or tribunal is required to bring the matter before the Court of Justice for a preliminary ruling. However, this obligation is not absolute. It transpires from the Cilfit case-law of the Court of Justice that it is for the national courts against whose decisions there is no judicial remedy under national law, like other national courts, to decide “whether a decision on a question of Community law is necessary to enable them to give judgment”. The Cilfit judgment states in this connection that, accordingly, they are not obliged to refer a question concerning the interpretation of Community law raised before them if they establish that the question “is irrelevant”, that “the Community provision in question has already been interpreted by the Court [of Justice]” or that “the correct application of Community law is so obvious as to leave no scope for any reasonable doubt” (see paragraph 34 above). 57. The Court would further point out, firstly, that the Convention does not guarantee, as such, any right to have a case referred by a domestic court to another national or international authority for a preliminary ruling (see, in particular, Coëme and Others v. Belgium, nos. 32492/96, 32547/96, 32548/96, 33209/96 and 33210/96, § 114, ECHR 2000-VII; Wynen v. Belgium, no. 32576/96, §§ 41-43, ECHR 2002-VIII; and Ernst and Others v. Belgium, no. 33400/96, § 74, 15 July 2003). Secondly, where, in a given legal system, according to other sources of law, a particular field of law may be interpreted only by a particular court and other courts are required to refer to that court all questions relating to that field, it is in accordance with the functioning of such a mechanism for the court to verify, before responding to a request for a preliminary reference, whether the question must be answered before it can determine the case before it (ibid.). 58. The matter is not, however, unconnected to Article 6 § 1 of the Convention which, in establishing that “everyone is entitled to a ... hearing ... by [a] ... tribunal established by law”, also leaves to the competent court, in accordance with the applicable law, the task of hearing any legal questions that may arise in the course of proceedings. That aspect takes on particular significance in the jurisdictional context of the European Union. The purpose of implementing the third paragraph of Article 234 of the Treaty establishing the European Community (now Article 267 of the Treaty on the Functioning of the European Union) is, as the Court of Justice has pointed out, to ensure “the proper application and uniform interpretation of Community law in all the Member States”, and more particularly “to prevent the occurrence within the Community of divergences in judicial decisions on questions of Community law” (see paragraph 34 above). 59. It should further be observed that the Court does not rule out the possibility that, where a preliminary reference mechanism exists, refusal by a domestic court to grant a request for such a referral may, in certain circumstances, infringe the fairness of proceedings – even if that court is not ruling in the last instance (see, among other authorities Predil Anstalt S.A. v. Italy (dec.), no. 31993/96, 8 June 1999, and Herma v. Germany (dec.), no. 54193/07, 8 December 2009) –, whether the preliminary ruling would be given by a domestic court (see Coëme and Others, Wynen, and Ernst and Others, cited above, same references) or a Community court (see, for example, Société Divagsa v. Spain, no. 20631/92, Commission decision of the 12 May 1993, Decisions and Reports (DR) 74; Desmots v. France (dec.), no. 41358/98, 23 March 1999; Dotta v. Italy (dec.), no. 38399/97, 7 September 1999; Moosbrugger v. Austria (dec.), no. 44861/98, 25 January 2000; John v. Germany (dec.), no. 15073/03, 13 February 2007; and the Predil Anstalt S.A. and Herma decisions, cited above). The same is true where the refusal proves arbitrary (ibid.), that is to say where there has been a refusal even though the applicable rules allow no exception to the principle of preliminary reference or no alternative thereto, where the refusal is based on reasons other than those provided for by the rules, and where the refusal has not been duly reasoned in accordance with those rules. 60. Article 6 § 1 thus imposes, in this context, an obligation on domestic courts to give reasons, in the light of the applicable law, for any decisions in which they refuse to refer a preliminary question, especially where the applicable law allows for such a refusal only on an exceptional basis. 61. Consequently, when the Court hears a complaint alleging a violation of Article 6 § 1 on this basis, its task consists in ensuring that the impugned refusal has been duly accompanied by such reasoning. That being said, whilst this verification has to be made thoroughly, it is not for the Court to examine any errors that might have been committed by the domestic courts in interpreting or applying the relevant law. 62. In the specific context of the third paragraph of Article 234 of the Treaty establishing the European Community (Article 267 of the Treaty on the Functioning of the European Union), this means that national courts against whose decisions there is no remedy under national law, which refuse to refer to the Court of Justice a preliminary question on the interpretation of Community law that has been raised before them, are obliged to give reasons for their refusal in the light of the exceptions provided for in the case-law of the Court of Justice. They will thus be required, in accordance with the above-mentioned Cilfit case-law, to indicate the reasons why they have found that the question is irrelevant, that the European Union law provision in question has already been interpreted by the Court of Justice, or that the correct application of Community law is so obvious as to leave no scope for any reasonable doubt. 63. The Court observes that this obligation to give reasons has been fulfilled in the present case. 64. Accordingly, before the Court of Cassation, the applicants argued that Article 3 of Royal Decree no. 143, on which their criminal conviction had been based, was incompatible with various provisions of Community law. They added that the Mons Court of Appeal had unduly upheld the authority of res judicata of the Brussels Court of Appeal’s judgment in so far as it had found that there was no incompatibility. They explained in this connection that elements of Community law emerging after that decision had revealed it to be erroneous. They requested the Court of Cassation in this context to refer the matter to the Luxembourg court for a preliminary ruling on the requisite solution to the conflict between the rule of the authority of res judicata and that of the primacy of Community law. The Court of Cassation rejected their request on the ground that one of the exceptions provided for in the above-cited Cilfit case-law came into play. More specifically, it found that the question whether the principle of the primacy of Community law should prevail over that of the authority of res judicata had already been settled by the Court of Justice, setting out comprehensive reasons in this connection with reference to the case-law of that court (see paragraph 22 above). 65. Before the Conseil d’Etat, the company Biorim and the applicant asserted in particular that Article 3 of Royal Decree no. 143, on which the impugned decisions were based, was incompatible with Articles 43, 49 and 56 of the Treaty establishing the European Community, and with Article 86, taken together with Articles 82, 43, 49 or 56. They concluded that the decisions in question were devoid of admissible basis and therefore had to be annulled, and the applicant requested the Conseil d’Etat to refer preliminary questions to the Court of Justice in order to determine whether those Articles of the Treaty had to be interpreted as precluding the application of legislation containing the restrictions provided for in Article 3 of Royal Decree no. 143. The Conseil d’Etat rejected that request on the ground, like the Court of Cassation, that the exceptions provided for in the Cilfit case-law came into play. With demonstrative reasoning, it found that there was no reasonable doubt as to the inapplicability of Article 86 of the Treaty to the laboratories referred to in Article 3 of Royal Decree no. 143, and that an answer by the Court of Justice as to the interpretation of the other above-mentioned provisions of the Treaty “could not affect the outcome of the present dispute” (see paragraph 29 above). 66. The Court acknowledges that the applicants challenged the interpretation of Community law adopted by the Court of Cassation and the Conseil d’Etat, which they regarded as erroneous, and set out detailed arguments in this connection (see paragraphs 47-48 and 50-51 above). However, as indicated previously, this is an area that falls outside the Court’s jurisdiction. As to the first applicant’s allegation that the Conseil d’Etat had shown disregard for the adversarial principle by failing to invite the parties to submit argument on the scope of the Community case-law on which it had relied, the Court will not take this into account in so far as, in any event, the allegation was made for the first time on 11 June 2009, that is to say, after the time-limit fixed by Article 35 § 1 of the Convention. 67. In conclusion, having regard to the reasons given by the Court of Cassation and the Conseil d’Etat in support of their refusal to grant the applicants’ requests to refer to the Court of Justice preliminary questions on the interpretation of Community law that they had submitted in the course of the proceedings before those courts, and considering those proceedings as a whole, the Court finds that there has been no violation of the applicants’ right to a fair hearing within the meaning of Article 6 § 1 of the Convention. ... | In the light of the reasons given by those two courts and having regard to the proceedings as a whole, the Court held that there had been no violation of the applicants’ right to a fair hearing under Article 6 § 1 of the Convention. |
108 | Taking of children into care | II. RELEVANT DOMESTIC LAW AND PRACTICE A. The Constitution 42. Articles 102 and 104 of the Norwegian Constitution of 17 May 1814 ( Grunnloven ), as revised in May 2014, read as follows: Article 102 “Everyone has the right to the respect of their privacy and family life, their home and their communication. Search of private homes shall not be made except in criminal cases. The authorities of the state shall ensure the protection of personal integrity.” Article 104 “Children have the right to respect for their human dignity. They have the right to be heard in questions that concern them, and due weight shall be attached to their views in accordance with their age and development. For actions and decisions that affect children, the best interests of the child shall be a fundamental consideration. Children have the right to protection of their personal integrity. The authorities of the State shall create conditions that facilitate the child ’ s development, including ensuring that the child is provided with the necessary economic, social and health security, preferably within their own family.” It follows from the Supreme Court ’ s case-law – for instance its judgment of 29 January 2015 ( Norsk Retstidende ( Rt .) 2015 page 93, paragraphs 57 and 67) – that the above provisions are to be interpreted and applied in the light of their international law models, which include the Convention and the case-law of the European Court of Human Rights. B. Child Welfare Act 43. The relevant sections of the Child Welfare Act of 17 July 1992 ( barnevernloven ) read as follows: Section 4-1. Consideration of the child ’ s best interests “When applying the provisions of this chapter, decisive importance shall be attached to finding measures which are in the child ’ s best interests. This includes attaching importance to giving the child stable and good contact with adults and continuity in the care provided ...” Section 4-6. Interim orders in emergencies “If a child is without care because the parents are ill or for other reasons, the child-welfare service shall implement such assistance as is immediately required. Such measures may not be maintained against the will of the parents. If there is a risk that a child will suffer material harm by remaining at home, the head of the child-welfare administration or the prosecuting authority may immediately make an interim care order without the consent of the parents. In such a case, the head of the child-welfare administration may also make an interim order under section 4-19. If an order has been made under the second paragraph, an application for measures as mentioned in section 7-11 shall be sent to the county social welfare board as soon as possible, and within six weeks at the latest, but within two weeks if it is a matter of measures under section 4-24. If the matter is not sent to the county social welfare board within the time-limits mentioned in the fourth paragraph, the order lapses ...” Section 4-12 Care orders “A care order may be issued (a) if there are serious deficiencies in the day-to-day care received by the child, or serious deficiencies in terms of the personal contact and security needed by a child of his or her age and development, (b) if the parents fail to ensure that a child who is ill, disabled or in special need of assistance receives the treatment and training required, (c) if the child has been mistreated or subjected to other serious abuse at home, or (d) if it is highly probable that the child ’ s health or development may be seriously harmed because the parents are unable to take adequate responsibility for the child. An order may only be made under the first paragraph when necessary based on the child ’ s current situation. Hence, such an order may not be made if satisfactory conditions can be created for the child by measures of assistance under section 4-4 or measures under section 4-10 or section 4-11. An order under the first paragraph shall be made by the county social welfare board under the provisions of Chapter 7...” Section 4-19. Contact rights. Secret address “Unless otherwise provided, children and parents are entitled to have contact with each other. When a care order has been made, the county social welfare board shall determine the extent of contact, but may, for the sake of the child, also decide that there should be no contact. The county social welfare board may also decide that the parents should not be entitled to know the child ’ s whereabouts. ... The private parties may not demand that a case regarding contact should be dealt with by the county social welfare board if the case has been dealt with by the county social welfare board or a court of law in the preceding twelve months ...” Section 4-21. Revocation of a care order. “The county social welfare board shall revoke a care order where it is highly probable that the parents will be able to provide the child with proper care. The decision shall nonetheless not be revoked if the child has become so attached to persons [where he or she is living] and the environment where he or she is living that, on the basis of an overall assessment, removing the child may lead to serious problems for him or her. Before a care order is revoked, the child ’ s foster parents shall be entitled to state their opinion. The parties may not demand that a case concerning revocation of a care order shall be dealt with by the county social welfare board if the case has been dealt with by the county social welfare board or a court of law in the preceding twelve months. If a demand for revocation of the previous order or judgment was not upheld with reference to the first paragraph, second sentence of section 4-21, new proceedings may only be demanded where documentary evidence is provided to show that significant changes have taken place in relation to the child ’ s situation.” C. Case-law in respect of the Child Welfare Act 44. There are several Supreme Court judgments concerning the determination of contact rights under the Child Welfare Act. In its judgment of 10 January 2001 ( Rt. 2001 page 14) the Supreme Court noted that the High Court had limited a mother ’ s contact rights with her child, who had been placed in public care, to two hours, twice a year. In the Supreme Court ’ s opinion, special reasons ( særlige grunner ) had to be adduced for such stringent limitations to be placed on the parent ’ s right to see her child, particularly in the light of her rights under the Convention. It therefore expanded the contact rights to three hours, four times a year. 45. The Supreme Court again considered the question of contact rights in its judgment of 6 December 2012 ( Rt. 2012 page 1832). It distinguished the extent of contact rights to be established in short-term and long-term placements. Where the placement was short-term, the biological parents should be granted more frequent contact so as to facilitate the return of the child. Where the placement would be long-term, the contact should be less frequent so as to give the child the stability and continuity required to establish a good relationship with his or her foster parents. The Supreme Court cited the travaux préparatoires to the Child Welfare Act, which stated that the purpose of establishing contact rights in such cases was to allow the child to gain a cognitive and intellectual understanding of who his or her biological parents were, not to create or maintain an emotional connection. 46. In its judgment of 4 May 2015 ( Rt. 2015 page 467) the Supreme Court noted, with reference to its previous decisions, that where it had held that a child ’ s placement in public care must be foreseen to be long-term, it had granted visits from three to six times per year. In its judgment of 23 October 2017 (HR-2017-2015-A), the Supreme Court reiterated, with reference to its 2012-judgment (see paragraph 45 above), that the purpose of establishing contact rights in cases involving long-term placement in care was to allow the child to gain a cognitive and intellectual understanding of who his or her biological parents were, not to create or maintain an emotional connection. III. THE LAW ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 47. The applicants complained that the taking of their child into public care and the granting of limited contact rights had violated their right to respect for family life as provided in Article 8 of the Convention, which reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 48. The Government contested that argument. A. Admissibility 49. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ submissions (a) The applicants 50. The applicants argued that the decision to place A in public care and to award them limited contact rights had represented a disproportionate interference with their right to respect for their family life. 51. The child-welfare services had had no contact with the applicants prior to A ’ s birth and had never assessed the possibility of implementing assistance measures, apart from the five days that the second applicant had spent at the family centre. No expert had been appointed during the proceedings before the County Social Welfare Board; in that respect the proceedings in the instant case had suffered from shortcomings similar to those identified by the Grand Chamber in the case of Strand Lobben and Others v. Norway ([GC], no. 372823/13, 10 September 2019). During the proceedings before the City Court, the court-appointed expert had concluded that the applicants could provide A with adequate care. Despite the expert ’ s conclusion, which had been based on extensive conversations with the applicants as well as observations, the City Court had upheld the Board ’ s decision to place A in public care. The authorities had failed to adequately consider whether less intrusive measures could have been implemented instead, and had not carried out a genuine balancing exercise in respect of the competing interests at stake in the case. 52. The applicants had been awarded very limited contact rights because the domestic authorities had considered that A ’ s placement in foster care would be long-term; also in that connection the case bore similarities to that of Strand Lobben and Others, cited above The authorities had not had an adequate evidentiary basis for their conclusion concerning the length of the placement. The extent of the contact rights had been established with a view to providing A with knowledge of her biological origin, rather than facilitating a future reunification of the family. (b) The Government 53. The Government submitted that the decisions to place A in public care and limit the applicants ’ contact rights had been proportional and justified in the circumstances of the case. The Court ’ s judgment in the case of Strand Lobben and Others v. Norway ([GC], no. 372823/13, 10 September 2019) had limited relevance, in particular since that judgment had concerned adoption. 54. Both the County Social Welfare Board and the City Court had taken the various relevant factors into account and had made detailed references to the available evidence, including the expert ’ s report. The City Court had considered the possibility of assistance measures but had found that they could not be successfully implemented at the time of the decision. The City Court ’ s decision had been informed by its direct access to the parties and the evidence including, inter alia, first-hand observations of the first applicant ’ s conduct during the oral hearing. The applicants had been afforded adequate procedural safeguards. They had been represented by a lawyer throughout the proceedings. Both the Board and the City Court had held oral hearings. The City Court had thoroughly assessed the updated information regarding the applicants ’ positive developments. The fact that no expert had been appointed during the Board ’ s evaluation of the case had not violated the Convention, particularly since an expert had been appointed during the proceedings before the City Court. 55. The City Court ’ s assessment that the placement would be long-term had been justified in the light of the evidence, and the extent of the applicants ’ contact rights had been determined in the light of the child ’ s need to develop a stable relationship with her foster parents. (c) Third-party intervention 56. The Government of the Czech Republic and the Government of the Slovak Republic emphasised that the taking of a child into public care should normally be considered a temporary measure which should be discontinued as soon as the circumstances permit. The granting of very limited contact rights from the outset of the child being taken into public care could lead to the alienation of the child from his or her biological parents and reduce the possibility that the care order would be rescinded at a later date. The third-party intervenors maintained that the granting of limited contact rights in the instant case was indicative of a systemic practice in Norway which was problematic in the light of the obligation to implement childcare measures in such a way as to facilitate the reunification of the family as soon as possible. 2. The Court ’ s assessment 57. It has not been contested by the Government that taking the child into public care and restricting the applicants ’ contact with their daughter had amounted to an “interference” with the applicants ’ right to respect for their family life under Article 8 of the Convention. Nor have the applicants disputed that the measure complained of had been “in accordance with the law” and adopted with the aim of ensuring A ’ s “rights and freedoms” and her “health and morals” under the second paragraph of that provision. 58. On the basis of the material submitted to it, the Court finds no reason to conclude otherwise, and will accordingly examine whether the interference complained of was “necessary in a democratic society”. (a) General principles 59. The general principles applicable to child welfare measures such as those at issue in the instant case are well-established in the Court ’ s case-law and were recently extensively set out in the case of Strand Lobben and Others v. Norway ([GC], no. 372823/13, §§ 202-13, 10 September 2019, to which reference is made). 60. In the present case, the Court reiterates that regard to family unity and for family reunification in the event of separation are inherent considerations in the right to respect for family life under Article 8 of the Convention. Accordingly, in the case of imposition of public care restricting family life, a positive duty lies on the authorities to take measures to facilitate family reunification as soon as reasonably feasible. Moreover, any measure implementing such temporary care should be consistent with the ultimate aim of reuniting the natural parents and the child. The positive duty to take measures to facilitate family reunification as soon as reasonably feasible will begin to weigh on the competent authorities with progressively increasing force as from the commencement of the period of care, subject always to its being balanced against the duty to consider the best interests of the child. Furthermore, the ties between members of a family, and the prospect of their successful reunification will perforce be weakened if impediments are placed in the way their having easy and regular access to each other ( see Strand Lobben and Others, cited above, §§ 205 and 208). (b) Application of those principles to the present case 61. The Court notes that what is to be examined in the present case is A ’ s placement in care and the determination of the applicants ’ contact rights, decided in the course of the same proceedings. 62. Starting with the procedure, the Court notes that the case was heard over several days by both the County Social Welfare Board, composed of a lawyer qualified to act as a professional judge, two psychologists and two laypeople, and the City Court, composed of a professional judge, a psychologist and a layperson (see paragraphs 17 and 23 above). An expert was appointed by the City Court, who gave evidence during the proceedings and whose report was extensively referenced in the judgment (see paragraphs 23 and, inter alia, 28 and 33 above). The applicants, both of whom were represented by counsel, were allowed to present evidence and give testimony before both the Board and the City Court. Taking all this into account, the Court finds that the domestic decision-making process was comprehensive and that the applicants were provided with the requisite protection of their interests and fully able to present their case. It further notes that under section 4-21 of the Child Welfare Act (see paragraph 43 above), the applicants could lodge an application to have the care order lifted twelve months after the case had been considered by the courts, and their subsequent application to that effect was successful (see paragraph 40 above). The national procedure accordingly provided the applicants with the requisite protection of their interests. 63. Turning to the merits of the decision to place A in public care, the Court notes that the City Court found that both applicants had had a history of drug abuse, and that it had been established during the proceedings before it that the first applicant had been “self-medicating” with cannabis on a daily basis (see paragraphs 27 and 32 above). The applicants had been found to be suffering from various psychological problems (see, inter alia, paragraphs 27, 28 and 32), and particularly the treatment of the first applicant was expected to take a considerable amount of time (see paragraph 32 above) The first applicant had also been convicted of serious criminal offences of an antisocial character, including violence and threats, and the City Court held that he had demonstrated a worrying inability to learn from his past actions (see paragraphs 25-26 above). The relationship between the applicants had been volatile both before and during the pregnancy, the police having been called to their home a number of times on account of domestic disturbances. The second applicant had twice sought assistance at a crisis centre while she had been pregnant (see paragraph 19 above). 64. The Court further observes that the domestic authorities considered whether less intrusive measures could have been utilised, but that they concluded that this would have been impractical since previous attempts to help the applicants overcome their problems concerning drug dependency and mental health had been unsuccessful, and because of the applicants ’ difficulties in cooperating with the child-welfare services (see, inter alia, paragraphs 20 and 34 above, on the Board ’ s decision and the City Court ’ s judgment, respectively). The Court notes in particular that the manager of the municipal child-welfare services had obtained a restraining order against the first applicant due to frightening or threatening messages that he had posted on social media, and that the police had advised the child-welfare services not to visit the applicants ’ home if the police were not present (see paragraphs 26 and 34 above). 65. Having regard to the detailed reasons given by the County Social Welfare Board and the City Court, the Court is satisfied that the authorities conducted an in-depth examination of the factors relevant to the case. Bearing in mind the margin of appreciation to be afforded to the domestic authorities in cases concerning placement in foster care, the Court finds that relevant and sufficient reasons were adduced for taking A into public care and that the interference with the applicants ’ right to family life was not in that regard disproportionate. 66. On the basis of the above, the Court finds that there has been no violation of Article 8 of the Convention in respect of the placement of A in public care. 67. Proceeding to the question of the applicants ’ contact rights, the Court notes that according to the emergency decision taken by the child ‑ welfare services and upheld by the County Social Welfare Board, the applicants were allowed to visit their child for one hour, every other week (see paragraph 10 above). In its later decision regarding the placement of A in foster care, the Board reduced the number of visits to four per year. It found that the foster care would most likely be long-term and that the purpose of the visits with the applicants would therefore be for the applicants and A to get to know each other (see paragraph 21 above). The City Court also considered that the placement would be long-term and that it would therefore not be in A ’ s interests for the applicants to be given extensive contact rights. Emphasising the positive descriptions that had been given of the applicants ’ interactions with A during the contact sessions until then, it increased the duration and number of visits to two hours, six times a year (see paragraph 35 above). 68. The Court acknowledges that, in the above-mentioned assessments, the domestic authorities adjusted the number and duration of visits in the light of the evidence available to them at the different stages of the proceedings. At the same time, in determining the extent of the applicants ’ contact rights, both the County Social Welfare Board and the City Court largely based their decisions on the consideration that the placement in care would be long ‑ term and that A would therefore require stability in her foster home. It would appear to the Court that, instead of carrying out serious contemplation of the possibility of reunification of the family (see, in particular, Strand Lobben and Others, cited above, § 220), the Board and the City Court implicitly gave up reunification as the ultimate goal at a very early stage, without demonstrating why the ultimate aim of reunification was no longer compatible with A ’ s best interests. 69. Moreover, it is crucial that the regime of contact effectively supports the goal of reunification until – after careful consideration and also taking account of the authorities ’ positive duty to take measures to facilitate family reunification – the authorities are justified in concluding that the ultimate aim of reunification is no longer compatible with the best interests of the child. The Court emphasises that family reunification cannot normally be expected to be sufficiently supported if there are intervals of weeks, or even – as in the instant case – as much as months, between each contact session. While the domestic authorities were obliged to facilitate contact to the extent possible without exposing A to undue hardship, in order to guard, strengthen and develop family ties, thus enhancing the prospect of being able to reunify the family in the future, the decisions on contact rights in this case aimed instead only at upholding A ’ s cognitive and intellectual understanding of who her parents were (see paragraphs 21 and 35 above). Moreover, and bearing in mind the overarching purpose of contact visits in facilitating the strengthening of family ties, the decision to permit such visits to be invariably supervised by the child care authorities must be justified on special grounds in every case. 70. The Court does not overlook the fact that the decisions on contact rights taken by the County Social Welfare Board and the City Court did not formally prevent the child-welfare services from organising contact beyond the applicants ’ legal rights, and bears in mind that A was ultimately returned to the applicants. Furthermore, the Court is mindful that in cases such as the present one, there will inevitably be particular circumstances that need to be accommodated, and takes into account that it falls to the domestic authorities to make the proper assessment to that end. However, in the instant case, the Board and the City Court – which had found that A was a normally functioning child whose development was adequate for her age (see paragraph 30 above) and that positive descriptions had been given of the applicants ’ interactions with A during previous visits (see paragraph 35 above) – did not explain, other than with very general references to the child ’ s need for stability, why it would be contrary to A ’ s best interests to see the applicants more than only four or six times a year. 71. On the basis of the above, the Court finds that there has been a violation of Article 8 of the Convention in respect of the restrictions on contact between the applicants and A. APPLICATION OF ARTICLE 41 OF THE CONVENTION 72. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 73. The applicants claimed 10,000 euros (EUR) each in respect of non ‑ pecuniary damage. 74. The Government stated that since an award of non-pecuniary damage was intended to compensate for the actual harmful consequences of a violation, such as distress and frustration, the applicants should be requested to specify the form of non-pecuniary harm at issue. 75. The Court finds that the applicants must have sustained non ‑ pecuniary damage through distress, in view of the violation found above. It awards them each EUR 10,000 in respect of that damage. B. Costs and expenses 76. The applicants also claimed EUR 2,300 for their lawyer ’ s work in the proceedings before the Court, not including value-added tax (VAT). 77. The Government did not object to the applicants ’ claim for reimbursement of legal costs. 78. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession, the fact that the sums claimed have not been disputed by the Government and the above criteria, the Court considers it reasonable to award the sum of EUR 2,300, not including VAT, to cover costs and expenses for the proceedings before the Court. C. Default interest 79. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been no violation of Article 8 (right to respect for private and family life) of the Convention as concerned the placement of the applicant couple’s daughter in care, and a violation of Article 8 of the Convention as concerned their contact with their daughter, which had been restricted to four, then six times per year. It considered in particular that the authorities had conducted an in-depth examination of the case with regard to the care order and that the related procedure had provided sufficient protection for the applicants’ interests. In contrast, the Court found that the authorities’ decisions on contact rights had, at a very early stage in the procedure, been based on the assumption that the family would not be reunited because it was considered that the foster care would be for the long-term. Moreover, the authorities had not explained why it had been contrary to the daughter’s best interests to see her parents more often, even though there had been positive feedback on the family’s interaction during visits. |
118 | Domestic violence / abuse | II. RELEVANT DOMESTIC LAW AND PRACTICE ... 55. In its report entitled “Violence towards women” (2014) the National Statistics Institute (ISTAT) provided statistical data concerning violence towards women. “ Istat carried out the survey in 2014, on a sample of 24,000 women aged 16 ‑ 70.The results are to be widely disseminated also among migrant women. Istat carried out the survey in 2014, on a sample of 24,000 women aged 16-70. Estimates indicate the most affected foreign women for citizenship: Romania, Ukraine, Albania, Morocco, Moldavia, China. More specifically, according to the second Istat survey, 6,788,000 women have been victims of some forms of violence, either physical or sexual, during their life, that is 31.5% of women aged 16-70. 20.2% has been victim of physical violence; 21% of sexual violence and 5.4% of the most serious forms of sexual violence such as rape and attempted rape: 652,000 women have been victims of rape; and 746,000 have been victims of attempted rape. Further, foreign women are victims of sexual or physical violence on a scale similar to Italian women ’ s: 31.3% and 31.5%, respectively. However, physical violence is more frequent among the foreign women (25.7% vs. 19.6%), while sexual violence is more common among Italian women (21.5% vs. 16.2%). Specifically, foreign women are more exposed to rape and attempted rape (7.7% vs. 5.1%) with Moldavians (37,3%), Romanians (33,9%) and Ukrainians (33,2%) who are the most affected ones. As for the author, current and former partners are those who commit the most serious crimes. 62.7% of rapes is committed by the current or the former partner while the authors of sexual assault in the majority of cases are unknown (76.8%). As for the age of the victim, 10.6% of women have been victims of sexual violence prior to the age of 16. Considering VAW-cases against women with children who have been witnessed violence, the rate of children witnessing VAW cases rises to 65.2% compared to the 2006 figure (= 60.3%). As for women ’ s status, women separated or divorced are those far more exposes to physical or sexual violence (51.4% vs. 31.5% relating to all other cases). It remains of great concern the situation of women with disabilities or diseases. 36% of the women with bad health conditions and 36.6% of those with serious limitations have been victims of physical or sexual violence. The risk to be exposed to rape or attempted rape doubles compared to women without any health problems (10% vs. 4.7%). On a positive note, compared to the previous edition-2006, sexual and physical violence cases result to be reduced from 13.3% to 11.3%. This is the result of an increased awareness of existing protection tools by women in the first place and the public opinion at large, in addition to an overall social climate of condemnation and no mercy for such crimes. More specifically, physical or sexual violence cases committed by a partner or a former partner is reduced (as for the former, from 5.1% to 4%; as for the latter, from 2.8% to 2%) as well as for cases of VAW perpetrated by non-partners (from 9% to 7.7%). The decline is meaningful when considering cases among female students: it reduced from 17.1% to 11.9% in the event of former partners; from 5.3% to 2.4% in the event of current partner; and from 26.5% to 22%, in the event of a non-partner. Significantly reduced are those cases of psychological violence committed by the current partner (from 42.3% to 26.4%), especially when they are not coupled with physical and sexual violence. Women are far more aware that they have survived a crime (from 14.3% to 29.6% in case of violence by the partner) and it is reported far more often to the police (from 6.7% to 11.8%). More often, they talk about that with someone (from 67.8% to 75.9%) and look for professional help (from 2.4% to 4.9%). The same applies in the event of violence by a non-partner. Compared to the 2006 edition, survivors are far more satisfied with the relevant work carried out by the police. In the event of violence from the current or the former partner, data show an increase from 9.9% to 28.5%. Conversely, negative results emerge when considering cases of rape or attempted rape (1.2% in both editions). The forms of violence are far more serious with an increase of those also victims of injuries (from 26.3% to 40.2% when the partner is the author); and an increased number of women that were fearing that their life was in danger (from 18.8% in 2006 to 34.5% in 2014). Also the forms of violence by a non-partner are more serious. 3, 466,000 women (=16.1%) have been victims of stalking during lifetime, of whom 1, 524,000 have been victims of their former partner; and 2,229,000 from other person that the former partner.” III. RELEVANT INTERNATIONAL LAW 56. The relevant international law is partly described in the case of Opuz v. Turkey (no. 33401/02, §§ 72-82, ECHR 2009) and partly in the case of Rumor v. Italy ( no. 72964/10, §§ 31-35, 27 May 2014). 57. At its 49 th session, which was held from 11 to 29 July 201 1, the Committee on the Elimination of Discrimination against Women ( “ the CEDAW Committee ” ) adopted its concluding comments on Italy, of which the passages relevant to the present case read as follows :- “26. The Committee welcomes the adoption of the Act No. 11/2009 which introduced a crime of stalking and mandatory detention for perpetrator of acts of sexual violence, the National Action Plan to Combat Violence against Women and Stalking as well as the first comprehensive research on physical, sexual and psychological violence against women developed by the National Statistics Institute. However, it remains concerned about the high prevalence of violence against women and girls and the persistence of socio-cultural attitudes condoning domestic violence, as well as lack of data on violence against immigrant, Roma and Sinti women and girls. The Committee is further concerned about the high number of women murdered by their partner or ex-partner (femicide), which may indicate a failure of the State party ’ s authorities to adequately protect the women victims from their partners or ex-partners. In accordance with its general recommendation No. 19 on violence against women and the views adopted by the Committee under the Optional Protocol procedures, the Committee urges the State party to: (a) put emphasis on comprehensive measures to address violence against women in the family and in society, including through addressing the specific needs of women made vulnerable by particular circumstances, such as Roma and Sinti, migrant and older women and women with disabilities; (b) ensure that female victims of violence have immediate protection, including expulsion of perpetrator from the home, guarantee that they can stay in secure and well funded shelters, in all parts of the country, and that they have access to free legal aid, psycho-social counselling and adequate redress, including compensation; (d) enhance the system of appropriate data collection on all forms of violence against women, including domestic violence, protection measures, prosecutions and sentences imposed on perpetrators and conduct appropriate surveys to assess the prevalence of violence experienced by women belonging to disadvantaged groups, such as Roma and Sinti, migrant and older women and women with disabilities; (e) further pursue, in collaboration with a broad range of stakeholders, including women ’ s and other civil society organizations, awareness-raising campaigns through the media and public education programmes to make violence against women socially unacceptable and disseminate information on available measures to prevent acts of violence against women among the general public; (f) ratify the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence, in a timely manner. ” 58. On 27 September 2012 the Convention on Preventing and Combating Violence against Women and Domestic Violence (Istanbul Convention) was signed. It was ratified by Italy on 10 September 2013 and came into force in that country on 1 August 2014. The passages of that Convention relevant to the present case are partly set out in the case of Y. v. Slovenia (no. 41107/10, § § 72, ECHR 2015 (extracts) ). Furthermore, Article 3 of that Convention provides : Article 3 – Definitions “For the purpose of this Convention: a “violence against women” is understood as a violation of human rights and a form of discrimination against women and shall mean all acts of gender-based violence that result in, or are likely to result in, physical, sexual, psychological or economic harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life; b “domestic violence” shall mean all acts of physical, sexual, psychological or economic violence that occur within the family or domestic unit or between former or current spouses or partners, whether or not the perpetrator shares or has shared the same residence with the victim; ... ” 59. The conclusions of the United Nations Special Rapporteur on violence against women, its causes and consequences, drawn up following his official visit to Italy (from 15 to 26 January 2012), read as follows:- “ VII. Conclusions and recommendations 91. Efforts have been made by the Government to address the issue of violence against women, including through the adoption of laws and policies and the establishment and merger of governmental bodies responsible for the promotion and protection of women ’ s rights. Yet these achievements have not led to a decrease in the femicide rate or translated into real improvements in the lives of many women and girls, particularly Roma and Sinti women, migrant women and women with disabilities. 92. Despite the challenges of the current political and economic situation, targeted and coordinated efforts in addressing violence against women, through practical and innovative use of limited resources, need to remain a priority. The high levels of domestic violence, which are contributing to rising levels of femicide, demand serious attention. 93. The Special Rapporteur would like to offer the Government the following recommendations. A. Law and policy reforms 94. The Government should: (a) Put in place a single dedicated governmental structure to deal exclusively with the issue of substantive gender equality broadly and violence against women in particular, to overcome duplication and lack of coordination; (b) Expedite the creation of an independent national human rights institution with a section dedicated to women ’ s rights; (c) Adopt a specific law on violence against women to address the current fragmentation which is occurring in practice due to the interpretation and implementation of the civil, criminal and procedures codes; (d) Address the legal gap in the areas of child custody and include relevant provisions relating to protection of women who are the victims of domestic violence; (e) Provide education and training to strengthen the skills of judges to effectively address cases of violence against women; (f) Ensure the provision of quality, State-sponsored legal aid to women victims of violence as envisaged in the constitution and Law No. 154/200 on measures against violence in family relations; (g) Promote existing alternative forms of detention, including house arrest and low-security establishments for women with children, having due regard to the largely non-violent nature of the crimes for which they are incarcerated and the best interest of children; (h) Adopt a long-term, gender-sensitive and sustainable policy for social inclusion and empowerment of marginalized communities, with a particular focus on women ’ s health, education, labour and security; (i) Ensure the involvement of representatives of these communities, particularly women, in the design, development and implementation of policies which impact them; (j) Ensure continued provision of quality education for all, including through a flexible application of the 30 per cent ceiling of non-Italian pupils per classroom, to allow for inclusive schools particularly in places where the population of non-Italians is high. (k) Amend the “Security Package” laws generally, and the crime of irregular migration in particular, to ensure access of migrant women in irregular situations to the judiciary and law enforcement agencies, without fear of detention and deportation; (l) Address the existing gender disparities in the public and private sectors by effectively implementing the measures provided by the Constitution and other legislation and policies to increase the number of women, including from marginalized groups, in the political, economic, social, cultural and judicial spheres; (m) Continue to remove legal hurdles affecting the employment of women, which is exacerbated through the practice of signing blank resignations, and the lower positions and salary scale for women. Strengthen the social welfare system by removing impediments to the integration of women into the labour market; (n) Ratify and implement the Convention on jurisdiction, applicable law, recognition, enforcement and cooperation in respect of parental responsibility and measures for the protection of children; the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, International Labour Organization Convention No. 189 (2011) concerning decent work for domestic workers; the European Convention on the Compensation of Victims of Violent Crimes and the Council of Europe Convention on preventing and combating violence against women and domestic violence. B. Societal changes and awareness-raising initiatives 95. The Government should also: (a) Continue to conduct awareness-raising campaigns aimed at eliminating; (b) Strengthen the capacity of the National Racial Discrimination Office to put in place programmes to bring about change in society ’ s perception of women who belong to marginalized communities and groups; (c) Continue to conduct targeted sensitization campaigns, including with CSOs, to increase awareness on violence against women generally, and women from marginalized groups in particular; (d) Train and sensitize the media on women ’ s rights including on violence against women, in order to achieve a non-stereotyped representation of women and men in the national media. C. Support services 96. The Government should further: (a) Continue to take the necessary measures, including financial, to maintain existing and/or set-up new anti-violence shelters for the assistance and protection of women victims of violence; (b) Ensure that shelters operate according to international and national human rights standards and that accountability mechanisms are put in place to monitor the support provided to women victims of violence; (c) Enhance coordination and exchange of information among the judiciary, police and psychosocial and health operators who deal with violence against women; (d) Recognize, encourage and support public-private partnerships with CSOs and higher learning institutions, to provide research and responses to addressing violence against women.” 60. A report by the non-governmental organisation WAVE (Women Against Violence Europe) on Italy was published in 2015. The part relevant to the present case reads as follows: “ In 2014, 681 women and 721 children were accommodated at 45 women ’ s shelters that are part of the national network Associazione Nazionale Donne in Rete contro la violenza - D.i.R.e. In addition, there are three shelters for Black and Minority Ethnic (BME) women, migrant and asylum seeking women in the cities of Reggio Emilia, Imola and Modena, one shelter for girls and young women victims of forced marriage, and 12 shelters for victims of trafficking. Women ’ s Centres There are 140 women ’ s centres providing non-residential support to women survivors of any kind of violence in Italy; 113 of these centres are run by NGOs, 19 are run by the state, and 8 are run by faith-based organisations. While the exact number of such services is not known, there are several women ’ s centres for Black and Minority Ethnic (BME) women, as well as centres for women victims of trafficking. All the women ’ s centres provide information and advice, counselling, advocacy and practical support with access to social rights (i.e. housing, income, health care) and legal advice. Some only provide specialist support for children and family support, and cooperate with programmes for perpetrators of violence against women. Women ’ s Networks There is one national women ’ s network in Italy, called Associazione Nazionale Donne in Rete contro la violenza - D.i.R.e. The network includes 73 members, all women ’ s organisations running women ’ s shelters and anti-violence centres in Italy. Formed in 2008 and based in Rome, the network conduct activities in the areas of public awareness, lobbying and advocacy, training, research and networking. In 2014, the network received EUR 66,747 in funding from various private donors and foundations for specific projects, and EUR 20,000 in membership fees. Policy & Funding The Extraordinary Action Plan against gender and sexual violence in accordance with art.5 par. 1 Law Decree 14 August 2013 n.93 converted with amendments into Law 15 October 2013 n.119 ( Piano di Azione Straordinario contro la violenza sessuale e di genere ai sensi dell ’ art 5 comma 1 D.L. 14 Agosto 2013 n. 93 convertito con modifiche nella legge del 15 Ottobre 2013 n 119 ) was launched in 2015 and covers a three-year period [voir paragraphe 53 ci-dessus]. The Plan addresses rape and sexual assault only marginally, and it does not provide for adequate financing of existing services or to create new services in the many regions where these are inexistent. While forced and early marriage is mentioned in the Plan, no particular measures are included. Conceived as an extraordinary measure provided for in a law decree addressing other subjects, the Plan generally fails to address the structural characteristics of violence against women and gender-based violence. Measures and interventions included in the Plan do not consider women ’ s shelters and anti-violence centres as key actors in providing specialist support to survivors of violence, with a gender perspective. The Department for Equal Opportunities – Presidency of the Council of Ministers – acts as coordinating body for the implementation of policies on VAW. This body has in practice little effectiveness, largely due to the failure of the President of the Council of Ministers to appoint a Minister with decision-making. There is currently no national monitoring body entrusted with the evaluation of national strategies on VAW in Italy, and women ’ s organisations are rarely invited to conduct such evaluation. Nonetheless, in 2014, a coalition of Italian women ’ s NGOs (among which D.i.R.e.) submitted a Shadow Report on the implementation of the Beijing Declaration and Platform for Action covering 2009-2014, and including review of national strategies on VAW. In 2014, funding for governmental activities to combat VAW equalled EUR 7 million, while very little funding was provided for NGOs activities through local regional governments; detailed information on funding for NGOs activities is not available, due to the budget being decentralized. State funding for women ’ s organisations providing support is exclusively project-based. Prevention, Awareness-raising, Campaigning The national women ’ s network, along with most of the women ’ s shelters and centres, and the national women ’ s helpline conduct activities in the field of prevention, awareness-raising and campaigning; besides the national women ’ s helpline (1522), none of them received funding to carry out these activities in 2014. Training Most of the women ’ s shelters and centres conduct trainings with a number of target groups: police, judiciary, civil servants, health professionals, psychologists, social workers, education professionals, media, and others.” THE LAW ... II. ALLEGED VIOLATION OF ARTICLES 2 AND 3 OF THE CONVENTION 76. Relying on Articles 2, 3 and 8 of the Convention, the applicant complained that, owing to their complacency and indifference, the Italian authorities, despite having been alerted several times to her husband ’ s violence, had not taken the necessary measures to protect her and her son ’ s life from the – in her view real and known – risk represented by her husband, and had not prevented the commission of other domestic violence. She alleged that the authorities had thus failed to comply with their positive obligation under the Convention. 77. The Court reiterates that since it is master of the characterisation to be given in law to the facts of the case, it does not consider itself bound by the characterisation given by an applicant or a government. By virtue of the jura novit curia principle, it has, for example, considered of its own motion complaints under Articles or paragraphs not relied on by the parties. In other words, a complaint is characterised by the facts alleged in it and not merely by the legal grounds or arguments relied on ( see Aksu v. Turkey [GC], nos. 4149/04 and 41029/04, § 43, ECHR 2012 ). Having regard to the circumstances complained of by the applicant and the manner in which her complaints were formulated, the Court will examine them under Articles 2 and 3 of the Convention ( for a similar approach, see E.M. v. Romania, no. 43994/05, § 51, 30 October 201 2; Valiulienė v. Lithuania, no. 33234/07, § 87, 26 March 2013; and M.G. v. Turkey, no. 646/10, § 62, 22 March 2016 ). Those Articles provide : Article 2 “1. Everyone ’ s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. Article 3 “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 78. The Government disputed that argument. A. The applicant ’ s submissions 79. The applicant alleged that the failure by the authorities to comply with their obligation to protect her life and that of her son, who was killed by her husband, had resulted in a violation of Article 2 of the Convention. She submitted in that regard that the Italian authorities had failed to protect her son ’ s right to life and that they had been negligent before the repeated violence, threats and injuries which she herself had endured. 80. She argued that the Italian authorities had tolerated de facto her husband ’ s violence. In her submission, the police had known since June 2012 that she had been a victim of violence and should have known that there was a real and serious risk that A.T. would be violent towards her. According to the applicant, there had been clear signs of a continuing threat of danger to her, but the authorities had not taken the necessary measures immediately after she had lodged her complaint and had thus left her alone and defenceless. 81. The applicant alleged, further, that, despite the hospital certificate of 19 August 2012 establishing that she had been beaten and threatened with a knife, that fact had not been taken seriously. 82. In the applicant ’ s view, the only remedy available had been a criminal complaint and this had not been effective. She stated that she had lodged a complaint on 5 September 2012 and made a statement to the police in April 2013. She added that, during the seven months between lodging the complaint and giving her statement, no investigative steps had been taken and no witnesses heard. In March 2013 the public prosecutor had again had to ask the police to investigate (see paragraph 29 above). 83. The applicant complained of the authorities ’ complacency and stated that she had changed her version of the facts once she had been questioned by the police seven months after lodging her complaint. In her view, it was clear that the State had not protected her and that she had been abandoned by the authorities, who had not taken any measures to protect her despite her request. The applicant also stated that the Udine District Council, while aware of the difficult situation in which she found herself, had refused to help her and had stopped funding her accommodation at the shelter run by the association for the protection of battered women. In her submission, the authorities should have intervened of their own motion given the circumstances of the case and her vulnerability. 84. The applicant argued that, according to the Court ’ s case-law, the positive obligations under Article 2 of the Convention imposed a primary duty on the State to secure the right to life by putting in place effective criminal-law provisions to deter the commission of offences against the person and backed up by law-enforcement machinery for the prevention, suppression and sanctioning of breaches of such provisions. She submitted that this could also imply in certain circumstances a positive obligation on the authorities to take preventive operational measures to protect an individual whose life was at risk from the criminal acts of another individual (she referred to Osman v. the United Kingdom, 28 October 1998, § 115, Reports of Judgments and Decisions 1998 ‑ VIII, cited in Kontrová v. Slovakia, no. 7510/04, § 49, 31 May 200 7). She concluded that in the present case the Italian State had not taken the necessary measures to protect her life and that of her son. 85. Referring to the Court ’ s case-law ( Opuz, cited above, § 159), the applicant complained that she had also been subjected to inhuman and degrading treatment. She reiterated that she had lodged a complaint, supported by her medical case notes, in September 2012 and that, for seven months, the authorities had done nothing to protect her. She added that her husband had meanwhile succeeded in convincing her to come back and live with him. 86. In conclusion, the applicant submitted that the State had failed to comply with its positive obligations under Articles 2 and 3 of the Convention. B. The Government ’ s submissions 87. After stating the principles established in the Court ’ s case-law, the Government submitted that not every claimed risk to life could entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising ( they referred to Opuz, cited above, § 129). In their submission, it also had to be established that the authorities had known or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual from the criminal acts of a third party and that they had failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk. 88. Furthermore, the Government considered that the present case had to be distinguished from the case of Opuz (cited above). In their submission, in the present case the authorities had not known and could not have known that the applicant and her son ’ s lives were at risk, as there had been no tangible evidence that their lives were in imminent danger. They pointed out that, after the two episodes of violence in June and August 2012 the applicant had found refuge in a victim support shelter and that she had subsequently found employment providing her with financial independence. In the Government ’ s submission, the two episodes reported in June and August 2012 had appeared to be mere family rows. The Government submitted that the authorities had done everything in their power by fining A.T. for unauthorised possession of a lethal weapon, and that an investigation in respect of ill-treatment and bodily injury required that a complaint be lodged. 89. The Government also stated that the applicant had left the shelter where she had taken refuge and that when she had been questioned by the police in April 2013 she had changed her earlier statements. They observed that the authorities, before discontinuing the complaint of ill-treatment, had checked whether her version of the facts was accurate, whether there had been other events of that type and whether the applicant had been in a vulnerable situation capable of inducing her to change her statements. According to the Government, the applicant had then stated that there had been no further incident and that A.T. had calmed down. 90. In those circumstances the Government considered that an intervention by the authorities could have breached Article 8 of the Convention. 91. In their view, the time that elapsed between lodging the complaint and hearing the applicant had not had the effect of leaving the applicant exposed to violence from A.T. The Government pointed out, further, that as no other request for intervention had been made, there had been no specific sign of real and immediate violence. They added that on the basis of the aforementioned factors the authorities had decided not to prosecute A.T. for ill-treatment of family members. 92. The Government submitted that the applicant had never shown that she had suffered continual abuse or violence or that she had lived in fear of being attacked. They observed, however, that during her interview with the police in April 2013 she had asserted that she was no longer being abused. 93. Consequently, the Government considered that the acts of violence allegedly suffered by the applicant could not be classified as inhuman or degrading treatment. 94. From a procedural point of view, the Government submitted that they had complied with their positive obligations under the Convention. They stated that, following the investigation, as the applicant had changed her statements, the prosecution had to request that the case be discontinued. They added that the proceedings relating to the offence of causing bodily injury had continued and that A.T. had been sentenced on 1 October 2015 to pay a fine of EUR 2, 000. C. The Court ’ s assessment 1. Applicable principles 95. The Court will examine the complaints under Articles 2 and 3 of the Convention in the light of the converging principles deriving from both those provisions, principles which are well-established and have been summarised, inter alia, in the judgments Nachova and Others v. Bulgaria ([GC], nos. 43577/98 and 43579/98, §§ 110 and 112-113, ECHR 2005 ‑ VII), and Ramsahai and Others v. the Netherlands ([GC], no. 52391/99, §§ 324- 25, ECHR 2007 ‑ II ). 96. The Court has already stated that, in interpreting Articles 2 and 3, it must be guided by the knowledge that the object and purpose of the Convention as an instrument for the protection of individual human beings requires that its provisions be interpreted and applied so as to make its safeguards practical and effective. 97. It reiterates that Article 3, like Article 2, must be regarded as one of the most fundamental provisions of the Convention and as enshrining one of the core values of the democratic societies making up the Council of Europe (see Soering v. the United Kingdom, 7 July 1989, § 88, Series A no. 161). In contrast to the other provisions in the Convention, it is cast in absolute terms, without exception or proviso, or the possibility of derogation under Article 15 of the Convention ( see Pretty v. the United Kingdom, no. 2346/02, § 49, ECHR 2002 ‑ III ). 98. The Court also reiterates the general principles established in its case-law concerning domestic violence as laid down in Opuz ( cited above, § 159, with the case-law references mentioned therein ). 99. In that connection it reiterates that children and other vulnerable individuals – into which category fall victims of domestic violence – in particular are entitled to State protection, in the form of effective deterrence, against such serious breaches of personal integrity ( see Opuz, cited above, § 159). It also observes that the positive obligations laid down in the first sentence of Article 2 of the Convention also require by implication that the State should set in place an efficient and independent judicial system by which the cause of a death can be established and the guilty parties punished. The essential purpose of such an investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility. A requirement of promptness and reasonable expedition is implicit in that context ( ibid., §§ 150- 51). 100. The Court has also previously held that the authorities ’ positive obligations – in some cases under Articles 2 or 3 and in other instances under Article 8 taken alone or in combination with Article 3 of the Convention – may include a duty to put in place and apply an adequate legal framework affording protection against acts of violence by private individuals (see, among other authorities, Bevacqua and S. v. Bulgaria, no. 71127/01, § 65, 12 June 2008; Sandra Janković v. Croatia, no. 38478/05, § 45, 5 March 2009; A. v. Croatia, no. 55164/08, § 60, 14 October 2010; Đorđević v. Croatia, no. 41526/10, §§ 141-143, ECHR 2012; and M. and M. v. Croatia, no. 10161/13, § 136, ECHR 2015 (extracts) ). 101. Article 2 of the Convention may also imply in certain well-defined circumstances a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual ( see Osman, cited above, § 115; Branko Tomašić and Others v. Croatia, no. 46598/06, § 50, 15 January 2009; Opuz, cited above, § 128; Mahmut Kaya v. Turkey, no. 22535/93, § 85, ECHR 2000 ‑ III; and Kılıç v. Turkey, no. 22492/93, § 62, ECHR 2000 ‑ III ). Bearing in mind the difficulties involved in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, the scope of the positive obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. Accordingly, not every claimed risk to life can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising. For a positive obligation to arise, it must be established that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk ( see Keenan v. the United Kingdom, no. 27229/95, §§ 89-90, ECHR 2001 ‑ III; Gongadze v. Ukraine, no. 34056/02, § 165, ECHR 2005 ‑ XI; and Opuz, cited above, §§ 129- 30). Another relevant consideration is the need to ensure that the police exercise their powers to control and prevent crime in a manner which fully respects the due process and other guarantees which legitimately place restraints on the scope of their action to investigate crime and bring offenders to justice, including the guarantees contained in Articles 5 and 8 of the Convention ( see Osman, cited above, § 116, and Opuz, cited above, § 129). 102. The Court reiterates that the obligation on the High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken together with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment or punishment, even administered by private individuals. 103. Nevertheless, it is not the Court ’ s role to replace the national authorities and to choose in their stead from among the wide range of possible measures that could be taken to secure compliance with their positive obligations under Article 3 of the Convention ( see Opuz, cited above, § 165 ). Moreover, under Article 19 of the Convention and under the principle that the Convention is intended to guarantee not theoretical or illusory, but practical and effective rights, the Court has to ensure that a State ’ s obligation to protect the rights of those under its jurisdiction is adequately discharged ( see Sandra Janković, cited above, § 46, and Hajduová v. Slovakia, no. 2660/03, § 47, 30 November 2010 ). The question of the appropriateness of the authorites ’ response may raise a problem under the Convention ( see Bevacqua and S ., cited above, § 79). 104. The positive obligation to protect a person ’ s physical integrity extends to matters concerning the effectiveness of a criminal investigation, which cannot be considered to be limited solely to cases of ill-treatment by State agents ( see M.C. v. Bulgaria, no. 39272/98, § 151, ECHR 2003 ‑ XII ). 105. This aspect of the positive obligation does not necessarily require a conviction, but effective implementation of the law, particularly criminal, in order to secure the protection of the rights guaranteed by Article 3 of the Convention ( see M.G. v. Turkey, cited above, § 80). 106. A requirement of promptness and reasonable expedition is implicit in the obligation to carry out an investigation. The protection machinery provided for in domestic law must operate in practice within a reasonable time such as to conclude the examination on the merits of specific cases submitted to them ( see Opuz, cited above, §§ 150- 51). The State ’ s obligation under Article 3 of the Convention will not be deemed to be satisfied if the protection afforded by domestic law exists only in theory: above all, it must also operate effectively in practice, and that requires a prompt examination of the case without unnecessary delays. 2. Application of the above-mentioned principles to the present case a) Article 2 107. The Court observes first of all that there is no doubt that Article 2 of the Convention applies to the situation arising as a result of the death of the applicant ’ s son. 108. It notes subsequently that in the instant case the force used against the applicant was not in the event lethal. This does not, however, exclude in principle an examination of the complaints under Article 2, the text of which, read as a whole, demonstrates that it covers not only intentional killing but also situations where it is permitted to use force which may result, as an unintended outcome, in the deprivation of life ( see Makaratzis v. Greece [GC], no. 50385/99, §§ 49-55, ECHR 2004 ‑ XI ). The first sentence of Article 2 § 1 enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction ( see L.C.B. v. the United Kingdom, 9 June 1998, § 36, Reports 1998 ‑ III ). 109. It is also necessary to bear in mind that, where the State ’ s positive obligations to protect the right to life are concerned, it may be a question of recourse to lethal force by the police or of failure by the authorities to take protective measures to avoid a risk from the acts of third party ( see, for example, Osman, cited above, §§ 115- 22 ). 110. The Court considers that the applicant was the victim of inherently life-endangering conduct even though she ultimately survived her injuries ( see Camekan v. Turkey, no. 54241/08, § 38, 28 January 2014 ). Article 2 of the Convention therefore applies in the present case in respect of the applicant herself as well. 111. Turning to the circumstances of the instant case, the Court notes that, following the violent acts perpetrated against her in June and August 2012, the applicant lodged a criminal complaint in respect of the abuse inflicted by A.T. ( see paragraph 21 above). It observes that the applicant appended to her complaint a medical report drawn up after the assault and describing the physical injuries visible on her body ( see paragraph 16 above ). At that time she expressed her fears for her life and that of her daughter and requested the benefit of protective measures. Accordingly, the conduct of the domestic authorities must be assessed from that date onwards. 112. The Court notes that a judicial investigation was instituted against A.T. for ill-treatment of family members, inflicting grievous bodily harm and making threats. The police sent the applicant ’ s complaint to the prosecution on 9 October 2012. On 15 October 2012 the prosecuting authorities, having regard to the applicant ’ s request for protective measures, ordered urgent investigative measures to be carried out. In particular, they requested the police to check whether there had been witnesses, including the applicant ’ s daughter. It notes that in the meantime the applicant had found refuge, through an association, in a shelter for victims of violence, where she stayed for three months. 113. The Court notes that no protection order was issued, that the prosecution reiterated its request to the police in March 2013, emphasising the urgency of the situation, and that the applicant was not heard until April 2013. 114. Whilst, in the context of domestic violence, protection measures are in principle intended to avoid a dangerous situation as quickly as possible, the Court notes that seven months elapsed before the applicant was heard. Such a delay could only serve to deprive the applicant of the immediate protection required by the situation. Admittedly, as submitted by the Government, during the period in question the applicant was not subjected to further physical acts of violence by A.T. However, the Court cannot disregard the fact that the applicant, who was being harassed by telephone, was living in fear while staying at the shelter. 115. In the view, the national authorities had a duty to take account of the unusual psychological, physical and material situation in which the applicant found herself and to assess the situation accordingly, providing her with appropriate support. That was not done in this case. 116. While it is true that, seven months later, in April 2013, the applicant changed some of her statements, which led the authorities to discontinue the case in part, the Court notes that proceedings for grievous bodily harm were still pending on that date. Yet, the authorities failed to conduct any assessment of the risks facing the applicant, including the risk of renewed assaults. 117. In the light of the foregoing, the Court considers that, by failing to act rapidly after the applicant had lodged her complaint, the national authorities deprived the complaint of any effectiveness, creating a situation of impunity conducive to the recurrence of A.T. ’ s acts of violence against his wife and family ( see Halime Kılıç v. Turkey, no. 63034/11, § 99, 28 June 2016 ). 118. Although the Government submitted that there had been no tangible evidence of an imminent danger to the applicant ’ s life or that of her son, the Court considers that the authorities do not appear to have assessed the risks involved for the applicant as a result of A.T. ’ s behaviour. 119. It notes that the context of impunity referred to above ( see paragraph 117) reached its peak during the tragic night of 25 November 2013. The Court observes in that connection that the police intervened twice that night. Having been called out by the applicant, the police first found the bedroom door broken and the floor strewn with bottles of alcohol. The applicant had informed them that her husband had been drinking and that she had decided to call them because she thought he needed a doctor. She had told them that she had lodged a complaint against her husband in the past, but that she had subsequently changed her statements. The couple ’ s son had stated that his father was not violent towards him. Lastly, neither the applicant not her son presented any traces of violence. A.T. had been taken to hospital in a state of intoxication but had subsequently checked himself out to go to an amusement arcade. The police intervened a second time the same night when they stopped and fined A.T. during an identity check in the street. According to the police report, A.T. had been in a state of intoxication, had difficulty maintaining his balance and the police had let him go after fining him. 120. The Court notes that on neither occasion did the authorities take any specific measures to provide the applicant with adequate protection consonant with the seriousness of the situation, even though the violence inflicted on her by A.T. was known to the police as proceedings for inflicting grievous bodily harm on the applicant were still pending at the time ( see paragraph 35 above ). 121. The Court cannot speculate as to how events would have turned out if the authorities had adopted a different approach. It reiterates, however, that a failure to take reasonable measures which might realistically have altered the outcome or mitigated the harm is sufficient to engage the State ’ s responsibility ( see E. and Others v. the United Kingdom, no. 33218/96, § 99, 26 November 2002; Opuz, cited above § 136; and Bljakaj and Others v. Croatia, no. 74448/12, § 124, 18 September 2014 ). 122. In the Court ’ s view, the risk of a real and immediate threat ( see paragraph 99 above ) must be assessed taking due account of the particular context of domestic violence. In such a situation it is not only a question of an obligation to afford general protection to society ( see Mastromatteo v. Italy [GC], no. 37703/97, § 69, ECHR 2002 ‑ VIII; Maiorano and Others v. Italy, no. 28634/06, § 111, 15 December 2009; Choreftakis and Choreftaki v. Greece, no. 46846/08, § 50, 17 January 2012; and Bljakaj, cited above, § 121), but above all to take account of the recurrence of successive episodes of violence within the family unit. In that context the Court reiterates that the police had to intervene twice during the night of 25 November 2013: firstly when they inspected the damaged flat, and secondly when they stopped and fined A.T., who was in a state of intoxication. Having regard also to the fact that the police had been in a position to check, in real time, A.T. ’ s police record, the Court considers that they should have known that the applicant ’ s husband constituted a real risk to her, the imminent materialisation of which could not be excluded. It therefore concludes that the authorities failed to use their powers to take measures which could reasonably have prevented, or at least mitigated, the materialisation of a real risk to the lives of the applicant and her son. 123. The Court reiterates that in domestic violence cases perpetrators ’ rights cannot supersede victims ’ human rights to life and to physical and psychological integrity ( see Opuz, cited above, § 147). Furthermore, the State has a positive obligation to take preventive operational measures to protect an individual whose life is at risk. 124. In those circumstances the Court concludes that the authorities cannot be considered to have displayed due diligence. They therefore failed in their positive obligation to protect the right to life of the applicant and her son within the meaning of Article 2 of the Convention. 125. Having regard to the foregoing, the Court considers that the shortcomings observed above rendered the applicant ’ s criminal complaint ineffective in the circumstances of the instant case. Accordingly, it rejects the preliminary objection raised by the Government on grounds of non-exhaustion of domestic remedies ( see paragraph 68 above ) and concludes that there has been a violation of Article 2 of the Convention. b) Article 3 126. The Court considers that the applicant can be regarded as belonging to the category of “vulnerable persons” entitled to State protection ( see A. v. the United Kingdom, 23 September 1998, § 22, Reports 1998 ‑ VI ). In that connection it takes note of the acts of violence suffered by the applicant in the past. It also notes that the violent acts perpetrated against the applicant, manifesting themselves in physical injuries and psychological pressure, are sufficiently serious to be classified as ill-treatment within the meaning of Article 3 of the Convention. It must therefore be determined whether the domestic authorities acted in a manner such as to satisfy the requirements of that Article. 127. The Court has found, under Article 2 of the Convention ( see paragraph 117 above ) that, by failing to act rapidly after the applicant had lodged her complaint, the national authorities deprived the complaint of any effectiveness, creating a situation of impunity conducive to the recurrence of A.T. ’ s acts of violence against his wife and family. It also notes that A. T. was convicted on 1 October 2015 of causing grievous bodily harm following the incident in August 2012, while in the meantime he had killed his son and attempted to murder the applicant and had also been sentenced on 8 January 2015, by the Udine preliminary hearings judge to life imprisonment for the murder of his son and the attempted murder of his wife, and for the offences of ill-treatment of the applicant and her daughter. It was established that the applicant and her children had been living in a climate of violence ( see paragraph 47 above ). 128. The Court reiterates on this point that the mere passing of time can work to the detriment of the investigation, and even fatally jeopardise its chances of success ( see M.B. v. Romania, no. 43982/06, § 64, 3 November 2011 ). It also observes that the passing of time will inevitably erode the amount and quality of the evidence available and that the appearance of a lack of diligence will cast doubt on the good faith of the investigative efforts, as well as drag out the ordeal for the complainants ( see Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 86, ECHR 2002 ‑ II ). 129. The Court again emphasises that special diligence is required in dealing with domestic violence cases and considers that the specific nature of domestic violence as recognised in the Preamble to the Istanbul Convention ( see paragraph 58 above ) must be taken into account in the context of domestic proceedings. It stresses in this regard that the Istanbul Convention imposes a duty on the States Parties to take “the necessary legislative or other measures to ensure that investigations and judicial proceedings in relation to all forms of violence covered by the scope of this Convention are carried out without undue delay while taking into consideration the rights of the victim during all stages of the criminal proceedings ”. 130. In that connection the Court also considers that, in judicial cases involving disputes relating to violence against women, the national authorities have a duty to examine the victim ’ s situation of extreme psychological, physical and material insecurity and vulnerability and, with the utmost expedition, to assess the situation accordingly. In the instant case there is no explanation for the authorities ’ complacency for such a long period – seven months – before the instigation of criminal proceedings. Likewise, there is no explanation for why the criminal proceedings for grievous bodily harm, instituted after the applicant had lodged her complaint, lasted three years, ending on 1 October 2015. 131. Having regard to the findings in the present case, the Court considers that the manner in which the domestic authorities prosecuted the case is also a manifestation of that judicial complacency and cannot be deemed to satisfy the requirements of Article 3 of the Convention. ... III. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLES 2 AND 3 133. Relying on Article 14 of the Convention taken in conjunction with Articles 2 and 3, the applicant submitted that the omissions by the Italian authorities proved that she had been discriminated against as a woman and that the Italian legislation on domestic violence was inadequate. Article 14 of the Convention provides : “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” A. The parties ’ submissions 134. Referring to all the domestic and international legislation she considered relevant in the instant case, the applicant relied on the conclusions of the United Nations Special Rapporteur, who urged Italy to eliminate stereotypical attitudes about the roles and responsibilities of women and men in the family, society and workplace. 135. The applicant alleged that she had not had the benefit of adequate legislative protection and that the authorities had failed to respond appropriately to her allegations of domestic violence. In her submission, that amounted to discriminatory treatment on grounds of sex. 136. Referring to the Court ’ s conclusion regarding Article 14 of the Convention taken in conjunction with Article 3 in the case of T.M. and C.M. v. the Republic of Moldova ( no. 26608/11, § § 49 and 62, 28 January 2014 ), the applicant requested the Court to conclude that there had been a violation of Article 14. 137. The Government submitted that there had not been discrimination on grounds of sex in the present case. Moreover, in their submission, the claim that discrimination was institutionalised by the criminal law or administrative or judicial practice did not stand up to close analysis. 138. They pointed out that the National Council of the Judiciary had adopted two resolutions – on 11 February 2009 and 18 March 2014 – requesting the heads of the judicial offices to organise their departments and specialise in this area in such a way as to be able to deal effectively with cases of domestic violence. 139. They added that the domestic law provided for a firm response to such acts of violence : the law on stalking ... contained provisions for combating violence against women. B. The Court ’ s assessment 1. Admissibility 140. The Court, while observing that this complaint was never examined as such by the domestic courts, considers, in the light of the circumstances of the case, that it is so closely linked to the complaints examined above that the outcome must be the same and the complaint accordingly declared admissible. 2. Merits 141. The Court reiterates that, according to its case-law, a State ’ s failure to protect women against domestic violence breaches their right to equal protection before the law and that this failure does not need to be intentional ( see Opuz, cited above, § 191). The Court has previously held that “ the general and discriminatory judicial passivity [of the police] creating a climate that was conducive to domestic violence” amounted to a violation of Article 14 of the Convention ( ibid., §§ 191 et seq .). It also found that such discriminatory treatment occurred where it could be established that the authorities ’ actions were not a simple failure or delay in dealing with the violence in question, but amounted to repeatedly condoning such violence and reflected a discriminatory attitude towards the complainant as a woman ( see Eremia v. the Republic of Moldova, no. 3564/11, § 89, 28 May 2013 ). 142. In the instant case the Court notes that the applicant was assaulted by A.T. on several occasions ( see paragraphs 10, 16, 21 and 47 above ) and that the authorities had been aware of this. 143. It observes that the authorities did not carry out any investigation in the seven months following the applicant ’ s lodging of her complaint and that no measure of protection was implemented. Whilst, admittedly, the proceedings in respect of the applicant ’ s complaint were discontinued approximately one year later, on account of her having changed her statements, the Court also notes that A.T. was convicted of grievous bodily harm three years later, on 1 October 2015, after killing his son and attempting to murder the applicant. 144. The authorities ’ complacency in the present case is particularly striking in that the prosecution had asked the police, who had remained inactive for six months, to take immediate action having regard to the applicant ’ s request for protective measures. The Court reiterates in this connection the findings it has reached regarding the domestic authorities ’ failure to provide the applicant with effective protection and the impunity enjoyed by A.T. ( see paragraph 117 above ). 145. According to the Court, the combined effect of the above-mentioned factors shows that, by underestimating, through their complacency, the seriousness of the violent acts in question, the Italian authorities in effect condoned them. The applicant was therefore a victim of discrimination, as a woman, in breach of Article 14 of the Convention ( see T.M. and C.M. v. the Republic of Moldova, cited above, § 62; Eremia, cited above, § 98; and Mudric v. the Republic of Moldova, no. 74839/10, § 63, 16 July 2013 ). Furthermore, the conclusions of the Special Rapporteur on violence against women, its causes and consequences, following his official visit to Italy ( see 59 paragraph above ), those of the CEDAW ( see paragraph 57 above ) and those of the National Statistics Institute ( see paragraph 55 above ) demonstrate the extent of the problem of domestic violence in Italy and the discrimination suffered by women in this regard. The Court considers that the applicant provided prima facie evidence, backed up by undisputed statistical data, that domestic violence primarily affects women and that, despite the reforms implemented, a large number of women are murdered by their partners or former partners (femicide) and, secondly, that the socio - cultural attitudes of tolerance of domestic violence persist ( see paragraph 57 and 59 above ). 146. That prima facie evidence, which is undisputed by the Government, distinguishes the present case from that of Rumor ( cited above, § 76), the circumstances of which were very different, and in which the Court had held that the legislative framework in Italy governing domestic violence had been effective in that case in punishing the perpetrator of the crime of which the applicant had been a victim and preventing the recurrence of violent attacks on her physical integrity and had accordingly held that there had been no violation of Article 3, taken alone or in conjunction with Article 14. 147. The Court reiterates that, having found that the criminal - law system in the present case had not had an adequate deterrent effect capable of effectively preventing the unlawful acts by A.T against the personal integrity of the applicant and of her son, it held that there had been a violation of the applicant ’ s rights under Articles 2 and 3 of the Convention. 148. Having regard to its conclusions reached above ( see paragraph 145 ), the Court considers that the violence perpetrated against the applicant must be regarded as based on her sex and accordingly as a form of discrimination against women. 149. Consequently, in the circumstances of the instant case, the Court concludes that there has been a violation of Article 14 of the Convention taken in conjunction with Articles 2 and 3 of the Convention. ... | The Court held that there had been a violation of Article 2 (right to life) of the Convention on account of the murder of the applicant’s son and her own attempted murder. It found, in particular, that by failing to take prompt action on the complaint lodged by the applicant, the Italian authorities had deprived that complaint of any effect, creating a situation of impunity conducive to the recurrence of the acts of violence, which had then led to the attempted murder of the applicant and the death of her son. The authorities had therefore failed in their obligation to protect the lives of the persons concerned. The Court also held that there had been a violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention on account of the failure of the authorities in their obligation to protect the applicant against acts of domestic violence. In this respect, it noted in particular that the applicant had lived with her children in a climate of violence serious enough to qualify as ill-treatment, and that the manner in which the authorities had conducted the criminal proceedings pointed to judicial passivity, which was incompatible with Article 3. Lastly, the Court held that there had been a violation of Article 14 (prohibition of discrimination) of the Convention in conjunction with Articles 2 and 3, finding that the applicant had been the victim of discrimination as a woman on account of the inaction of the authorities, which had underestimated the violence in question and thus essentially endorsed it. |
499 | Obligation to pay contributions under social-welfare scheme | II. Relevant domestic law and practice A. The Constitution 18. Article 1 of the 1983 Constitution provides: "All persons present in the Netherlands shall be treated in the same way in similar situations. Discrimination on the ground of religion, philosophical convictions, political leanings, race, sex, or any other ground whatsoever shall not be allowed." 19. Under Netherlands constitutional law, courts may not review the constitutionality of statutes. Article 120 reads: "The courts shall not rule on the constitutionality [ grondwettigheid ] of statutes and treaties." Delegated legislation, on the other hand, may be examined to determine whether it conforms with the Constitution and even with unwritten general principles of law (see the judgment of the Supreme Court of 1 December 1993, Beslissingen in Belastingzaken (Reports of Decisions in Taxation Cases - "BNB") 1994, no. 64). 20. Article 93 of the Constitution provides that provisions of international treaties and decisions of international (intergovernmental) organisations which, according to their content, may be binding on anyone shall have binding force after they have been published. With regard to the prohibition of discrimination, the Netherlands is a party to, inter alia, the International Covenant on Civil and Political Rights of 1966 ("the Covenant"), Article 26 of which provides as follows: "All persons are equal before the law and are entitled without discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status." B. The General Child Care Benefits Act 21. The General Child Care Benefits Act was enacted in 1962. Until 1 January 1989 (see paragraph 28 below), section 25 of the General Child Care Benefits Act provided as follows: "1. Contributions are due by: (a) every person by whom contributions are due by way of assessment under the General Old Age Pensions Act ( Algemene ouderdomswet ); (b) ... 2. The first paragraph, under (a), may be derogated from by royal decree, subject to conditions and limitations if need be, in respect of unmarried women who have reached the age of 45. 3. ..." Persons referred to in sub-paragraph (a) were all those who had not yet reached the age of 65 and who were either Netherlands residents or, if not Netherlands residents, subject to the Wages (Tax Deduction) Act (Wet op de loonbelasting ) in respect of work carried out in the Netherlands under a contract of employment (section 6 (1) of the General Old Age Pensions Act). 22. Any person who was either a Netherlands resident or subject to the Wages (Tax Deduction) Act in respect of work carried out in the Netherlands under a contract of employment was entitled to benefits under the General Child Care Benefits Act for children for whose maintenance he or she was financially responsible, whether they were his or her own by birth or marriage or foster children (sections 6 and 7 of the General Child Care Benefits Act). Such entitlement was not subject to the condition that the person concerned had contributed to the scheme. C. The royal decree 23. At the time of the events complained of, the derogation from the general rule made possible by section 25 (2) was provided for by the royal decree of 27 February 1980 ( Staatsblad no. 89). Section 1 provided: "In derogation from section 25 (1) (a) of the General Child Care Benefits Act, no contributions shall be due by an unmarried woman who has reached the age of 45 before the beginning of the calendar year and who is not entitled to child care benefits under that Act." D. Relevant domestic case-law 1. Supreme Court 24. The Supreme Court recognised in its judgment of 2 February 1982 ( Nederlandse Jurisprudentie (Netherlands Law Reports - "NJ") 1982, no. 424 (corrected in NJ 1982, no. 475)) that Article 26 of the Covenant is a provision of an international treaty which, according to its content, may be binding on anyone, and must therefore in principle be applied directly by the Netherlands courts (see paragraph 20 above). However, in a number of judgments it has declined to construe Article 26 of the Covenant in such a way as to deprive national legislation of its effect even if it considered that a given measure constituted illegal discrimination between men and women, holding that, where various options were open to the national authorities to remove such discrimination, the choice should be left to the legislature in view of the social and legal implications attending each possible course of action (see the judgments of the Supreme Court of 12 October 1984, NJ 1985, no. 230, and 23 October 1988, NJ 1989, no. 740). In its judgment of 16 November 1990 (NJ 1991, no. 475), cited in the European Court of Human Right ’ s Kroon and Others v. the Netherlands judgment of 27 October 1994 (Series A no. 297-C), the Supreme Court came to a similar finding with regard to Article 14 of the Convention taken together with Article 8 (art. 14+8) (loc. cit., p. 50, para. 14). 2. Central Appeals Tribunal 25. The Central Appeals Tribunal ( Centrale Raad van Beroep ) - the administrative tribunal competent to decide most types of social-security disputes but not, inter alia, disputes relating to contributions due under the General Child Care Benefits Act - has held that Article 26 of the Covenant is in principle directly applicable in the field of social security. Thus, in its judgment of 14 May 1987 ( Rechtspraak Sociaal Verzekeringsrecht (Social Security Law Reports - "RSV") 1987, no. 246), the Central Appeals Tribunal considered discriminatory the rule that to qualify for benefits under the Victims of Persecution (1940-1945) Benefits Act (Wet uitkering vervolgingsslachtoffers 1940-1945) a married woman had to be a "breadwinner" whereas no such requirement applied to married men. In three judgments delivered on 5 January 1988 ( Nederlandse Jurisprudentie - Administratiefrechtelijke Beslissingen (Netherlands Administrative Law Reports - "AB") 1988, nos. 252-54), it came to a similar finding with regard to the General Disability Act ( Algemene arbeidsongeschiktheidswet ), but only with effect from 1 January 1980 - the date on which legislation entered into force that was intended to remove discrimination but which had failed to do so adequately. Similarly, in its judgments of 7 December 1988 (NJCM-Bulletin 1989, no. 14, p. 71, and AB 1989, no. 10), it recognised the right of a widower to claim a widow ’ s pension ( weduwenpensioen ) under the General Widows and Orphans Act ( Algemene weduwen - en wezenwet ). E. Levying of contributions; procedural provisions 26. Contributions under the General Child Care Benefits Act and certain other social-security schemes were levied by the Tax Inspector in the same way as income tax (sections 21 and 22 of the General Exceptional Medical Expenses Act ( Algemene wet bijzondere ziektekosten ), declared applicable by analogy under section 26 of the General Child Care Benefits Act). 27. It was possible to file an objection against an assessment with the Inspector (section 23 (1) of the State Taxes (General Provisions) Act - Algemene wet inzake rijksbelastingen ). An appeal against the Inspector ’ s decision lay to the Court of Appeal (sections 2 and 26 (1) of the State Taxes (General Provisions) Act). A further appeal could be filed on points of law to the Supreme Court (section 95 of the Judicial Organisation Act - Wet op de rechterlijke organisatie ). F. The Act of 21 December 1988 28. As noted above (see paragraph 12), the possibility provided for under section 25 (2) came to an end when the Act of 21 December 1988 ( Staatsblad 1988, no. 631) came into effect on 1 January 1989. Accordingly, on that date men and women became equally liable to pay contributions under the General Child Care Benefits Act whatever their age and whether or not they were married or had children. PROCEEDINGS BEFORE THE COMMISSION 29. Mr van Raalte applied to the Commission on 23 April 1992. He relied on Article 14 of the Convention taken together with Article 1 of Protocol No. 1 (art. 14+P1-1), alleging that he had been the victim of discriminatory treatment with regard to the obligation to pay contributions under the General Child Care Benefits Act. 30. The Commission declared the application (no. 20060/92) admissible on 10 April 1995. In its report of 17 October 1995 (Article 31) (art. 31), it expressed the opinion that there had been a violation of Article 14 of the Convention taken together with Article 1 of Protocol No. 1 (art. 14+P1-1) (twenty-three votes to five). The full text of the Commission ’ s opinion and of the dissenting opinion contained in the report is reproduced as an annex to this judgment [3]. FINAL SUBMISSIONS TO THE COURT BY THE GOVERNMENT 31. The Government concluded their memorial by expressing the opinion that there had not been a violation of Article 14 of the Convention taken together with Article 1 of Protocol No. 1 (art. 14+P1-1). AS TO THE LAW I. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN TOGETHER WITH ARTICLE 1 OF PROTOCOL No. 1 (art. 14+P1-1) 32. The applicant claimed that the levying of contributions under the General Child Care Benefits Act (see paragraph 21 above) from him, an unmarried childless man over 45 years of age, constituted discrimination on the ground of gender prohibited by Article 14 of the Convention taken together with Article 1 of Protocol No. 1 (art. 14+P1-1), given the fact that at the time of the events complained of no similar contributions were exacted from unmarried childless women of that age (see paragraphs 21 and 23 above). Article 14 of the Convention (art. 14) and Article 1 of Protocol No. 1 (P1-1) provide as follows: Article 14 of the Convention (art. 14) "The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status." Article 1 of Protocol No. 1 (P1-1) "Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions (P1-1) shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties." The Commission agreed with the applicant that such violation had taken place. The Government contested this. A. Whether Article 14 of the Convention (art. 14) is applicable 33. As the Court has consistently held, Article 14 of the Convention (art. 14) complements the other substantive provisions of the Convention and the Protocols. It has no independent existence since it has effect solely in relation to "the enjoyment of the rights and freedoms" safeguarded by those provisions. Although the application of Article 14 (art. 14) does not presuppose a breach of those provisions - and to this extent it is autonomous -, there can be no room for its application unless the facts in issue fall within the ambit of one or more of the latter (see, among many other authorities, the Karlheinz Schmidt v. Germany judgment of 18 July 1994, Series A no. 291-B, p. 32, para. 22). 34. The applicant and the Commission both considered that the case concerned the right of the State to "secure the payment of taxes or other contributions" and therefore came within the ambit of Article 1 of Protocol No. 1 (P1-1). The Government did not contest this. 35. The Court sees no reason to hold otherwise, and accordingly finds that Article 14 (art. 14) is applicable. B. Arguments before the Court 1. The applicant 36. In the applicant ’ s submission, differences in treatment based on sex were already unacceptable when section 25 of the General Child Care Benefits Act was enacted in 1962. The wording of Article 14 of the Convention (art. 14) showed that such had been the prevailing view as early as 1950. Moreover, legal and social developments showed a clear trend towards equality between men and women. The applicant drew attention to, inter alia, the Court ’ s Abdulaziz, Cabales and Balkandali v. the United Kingdom judgment of 28 May 1985 (Series A no. 94), which stated explicitly that "the advancement of the equality of the sexes is today a major goal in the member States of the Council of Europe" and that "very weighty reasons would have to be advanced before a difference of treatment on the ground of sex could be regarded as compatible with the Convention" (loc. cit., p. 38, para. 78). The Netherlands legislature had in fact recognised the unacceptable nature of the distinction in question by enacting, in 1988, legislation abolishing it. In any case, statistics showed that very few men aged 45 or over fathered children; on the other hand, women aged over 45 were still able to have children and in many cases did so, thus invalidating the justification of any distinction based on the theoretical possibility of procreating. Lastly, the right to claim benefits under the General Child Care Benefits Act was in no way related to the payment of contributions. 2. The Government 37. The Government denied that there had been a difference in treatment between persons in similar situations. Women aged 45 or over differed fundamentally from men of the same age in that for biological reasons they were much less likely to be able to have children. To the extent that it had to be assumed that there had been a difference in treatment between persons in similar situations, the biological difference referred to constituted in itself sufficient objective and reasonable justification. In addition, when the rule in question had been enacted it had been justified by the social attitudes prevailing at the time: it was assumed that women who had no children, and who in all probability never would, suffered thereby and it was considered wrong to impose on such women the additional emotional burden of having to pay contributions under a child care benefits scheme. Admittedly, the exemption in question had been abolished with effect from 1 January 1989, essentially in response to a change in social attitudes towards unmarried childless women. It was, however, inevitable that social legislation should to some extent lag behind developments in society and allowances had to be made. More generally, the Government referred to the wide margin of appreciation which in their view Article 1 of Protocol No. 1 (P1-1) allowed the State in "enforcing such laws as it deems necessary ... to secure the payment of taxes or other contributions or penalties". 3. The Commission 38. The Commission was of the opinion that there had been a difference in treatment based on gender and that this difference was not justified. Moreover, it considered that the social attitudes relied on by the Government had been overtaken by developments well before 1985. It referred, inter alia, to the Court ’ s finding of a violation of Article 14 taken together with Article 4 para. 3 (d) (art. 14+4-3-d) in its above-mentioned Karlheinz Schmidt judgment, the financial contribution in that case having been imposed in 1982. C. The Court ’ s assessment 1. Applicable principles 39. For the purposes of Article 14 (art. 14) a difference of treatment is discriminatory if it has no objective and reasonable justification, that is if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. Moreover the Contracting States enjoy a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment (see, among other authorities, the above-mentioned Karlheinz Schmidt judgment, pp. 32-33, para. 24). However, very weighty reasons would have to be put forward before the Court could regard a difference in treatment based exclusively on the ground of sex as compatible with the Convention (see, among other authorities, the above-mentioned Karlheinz Schmidt judgment, ibid.). 2. Whether there has been a difference in treatment between persons in similar situations 40. At the time of the events complained of contributions under the General Child Care Benefits Act were levied from unmarried childless men aged 45 or over but not from unmarried childless women of the same age (see paragraphs 21 and 23 above). This undoubtedly constitutes a "difference in treatment" between persons in similar situations, based on gender. The factual difference between the two categories relied on by the Government, namely their respective biological possibilities to procreate, does not lead the Court to a different conclusion. It is precisely this distinction which is at the heart of the question whether the difference in treatment complained of can be justified. 3. Whether there is objective and reasonable justification 41. The Court notes that the General Child Care Benefits Act set up a social-security scheme to which, in principle, the entire adult population was subject, both as contributors and as potential beneficiaries. A key feature of this scheme was that the obligation to pay contributions did not depend on any potential entitlement to benefits that the individual might have (see paragraph 21 above). Accordingly the exemption in the present case ran counter to the underlying character of the scheme. 42. While Contracting States enjoy a certain margin of appreciation under the Convention as regards the introduction of exemptions to such contributory obligations, Article 14 (art. 14) requires that any such measure, in principle, applies even-handedly to both men and women unless compelling reasons have been adduced to justify a difference in treatment. 43. In the present case the Court is not persuaded that such reasons exist. In this context it must be borne in mind that just as women over 45 may give birth to children (see paragraph 17 above), there are on the other hand men of 45 or younger who may be unable to procreate. The Court further observes that an unmarried childless woman aged 45 or over may well become eligible for benefits under the Act in question; she may, for example, marry a man who already has children from a previous marriage. In addition, the argument that to levy contributions under a child care benefits scheme from unmarried childless women would impose an unfair emotional burden on them might equally well apply to unmarried childless men or to childless couples. 44. Accordingly, irrespective of whether the desire to spare the feelings of childless women of a certain age can be regarded as a legitimate aim, such an objective cannot provide a justification for the gender-based difference of treatment in the present case. 4. Conclusion 45. There has been a violation of Article 14 of the Convention taken together with Article 1 of Protocol No. 1 (art. 14+P1-1). II. APPLICATION OF ARTICLE 50 OF THE CONVENTION (art. 50) 46. Article 50 of the Convention (art. 50) provides as follows: "If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party." The applicant claimed damages as well as reimbursement of costs and expenses. A. Damages 47. Mr van Raalte asked the Court to award him compensation for pecuniary damage in the amount of the contributions which he had paid under the General Child Care Benefits Act in 1985 through 1988. These totalled 1,959 Netherlands guilders (NLG). He also asked the Court to award him interest over these sums at the statutory rate. He also claimed NLG 4,740 for non-pecuniary damage. He stated that it had been "very painful" for him as an unmarried childless man to have to pay contributions under the General Child Care Benefits Act. 48. The Government stated that had there not been the difference in treatment complained of, men and women would have been equally liable to pay contributions under the General Child Care Benefits Act, so that the applicant would have had to pay them in any case. The applicant ’ s claim for non-pecuniary damage was in their view incompatible with the applicant ’ s argument that such feelings, if suffered by women, could not justify extending the exemption only to them. 49. The Delegate of the Commission assumed that the applicant would be in a position to recover the contributions paid under domestic law and also considered that the applicant was entitled to some compensation for non-pecuniary damage. 50. The Court notes that the finding of a violation of Article 14 of the Convention taken together with Article 1 of Protocol No. 1 (art. 14+P1-1) does not entitle the applicant to retrospective exemption from contributions under the scheme in question. Accordingly the applicant ’ s claim for pecuniary damage has not been substantiated. As regards the applicant ’ s claim for non-pecuniary damage, the Court considers that the present judgment in itself constitutes sufficient just satisfaction. B. Costs and expenses 51. The applicant asked the Court to award him NLG 7,836.75 for costs and expenses incurred in the domestic proceedings, NLG 6,768 for costs and expenses incurred in the proceedings before the Commission and NLG 8,666.25 for costs and expenses incurred before the Court. The Government did not comment. The Delegate of the Commission considered that the applicant was entitled to the sums sought. 52. The Court has no reason to doubt that these costs and expenses were actually incurred. It also accepts that they were necessarily incurred by the applicant in his attempts to prevent the violation found and later to obtain redress therefor. Finally, it finds them reasonable as to quantum. The applicant ’ s claims under this head, which total NLG 23,271, are therefore accepted in their entirety. C. Default interest 53. According to the information available to the Court, the statutory rate of interest applicable in the Netherlands at the date of adoption of the present judgment is 5% per annum. | The Court held that there had been a violation of Article 14 (prohibition of discrimination) of the Convention taken together with Article 1 (protection of property) of Protocol No. 1, finding that, irrespective of whether the desire to spare the feelings of childless women of a certain age could be regarded as a legitimate aim, such an objective could not provide a justification for the gender-based difference of treatment in the present case. The Court observed in particular that, while Contracting States enjoyed a certain margin of appreciation under the Convention as regards the introduction of exemptions to such contributory obligations, Article 14 required that any such measure, in principle, applied even-handedly to both men and women unless compelling reasons had been adduced to justify a difference in treatment. In the present case the Court was not persuaded that such reasons existed. In this context it had to be borne in mind that just as women over 45 may give birth to children, there are on the other hand men of 45 or younger who may be unable to procreate. The Court further observed that an unmarried childless woman aged 45 or over could well become eligible for benefits under the Act in question; she could, for example, marry a man who already had children from a previous marriage. In addition, the argument that to levy contributions under a child care benefits scheme from unmarried childless women would impose an unfair emotional burden on them could equally well apply to unmarried childless men or to childless couples. |
511 | The Christine Goodwin | II. RELEVANT DOMESTIC LAW AND PRACTICE A. Names 20. Under English law, a person is entitled to adopt such first names or surname as he or she wishes. Such names are valid for the purposes of identification and may be used in passports, driving licences, medical and insurance cards, etc. The new names are also entered on the electoral roll. B. Marriage and definition of gender in domestic law 21. Under English law, marriage is defined as the voluntary union between a man and a woman. In the case of Corbett v. Corbett ([1971] Probate Reports 83), Mr Justice Ormrod ruled that sex for that purpose is to be determined by the application of chromosomal, gonadal and genital tests where these are congruent and without regard to any surgical intervention. This use of biological criteria to determine sex was approved by the Court of Appeal in R. v. Tan ([1983] Queen's Bench Reports 1053) and given more general application, the court holding that a person born male had been correctly convicted under a statute penalising men who live on the earnings of prostitution, notwithstanding the fact that the accused had undergone gender reassignment therapy. 22. Under section 11(b) of the Matrimonial Causes Act 1973, any marriage where the parties are not respectively male and female is void. The test applied as to the sex of the partners to a marriage is that laid down in the above-mentioned case of Corbett v. Corbett. According to that same decision a marriage between a male-to-female transsexual and a man might also be avoided on the basis that the transsexual was incapable of consummating the marriage in the context of ordinary and complete sexual intercourse ( obiter per Mr Justice Ormrod ). This decision was reinforced by Section 12(a) of the Matrimonial Causes Act 1973, according to which a marriage that has not been consummated owing to the incapacity of either party to consummate may be voidable. Section 13(1) of the Act provides that the court must not grant a decree of nullity if it is satisfied that the petitioner knew the marriage was voidable, but led the respondent to believe that she would not seek a decree of nullity, and that it would be unjust to grant the decree. C. Birth certificates 23. Registration of births is governed by the Births and Deaths Registration Act 1953 (“the 1953 Act”). Section 1(1) of that Act requires that the birth of every child be registered by the Registrar of Births and Deaths for the area in which the child is born. An entry is regarded as a record of the facts at the time of birth. A birth certificate accordingly constitutes a document revealing not current identity but historical facts. 24. The sex of the child must be entered on the birth certificate. The criteria for determining the sex of a child at birth are not defined in the Act. The practice of the Registrar is to use exclusively the biological criteria (chromosomal, gonadal and genital) as laid down by Mr Justice Ormrod in the above-mentioned case of Corbett v. Corbett. 25. The 1953 Act provides for the correction by the Registrar of clerical errors or factual errors. The official position is that an amendment may only be made if the error occurred when the birth was registered. The fact that it may become evident later in a person's life that his or her “psychological” sex is in conflict with the biological criteria is not considered to imply that the initial entry at birth was a factual error. Only in cases where the apparent and genital sex of a child was wrongly identified, or where the biological criteria were not congruent, can a change in the initial entry be made. It is necessary for that purpose to adduce medical evidence that the initial entry was incorrect. No error is accepted to exist in the birth entry of a person who undergoes medical and surgical treatment to enable that person to assume the role of the opposite sex. 26. The Government point out that the use of a birth certificate for identification purposes is discouraged by the Registrar General, and for a number of years birth certificates have contained a warning that they are not evidence of the identity of the person presenting it. However, it is a matter for individuals whether to follow this recommendation. D. Social security, employment and pensions 27. A transsexual continues to be recorded for social security, national insurance and employment purposes as being of the sex recorded at birth. 1. National Insurance 28. The DSS registers every British citizen for National Insurance purposes (“NI”) on the basis of the information in their birth certificate. Non-British citizens who wish to register for NI in the United Kingdom may use their passport or identification card as evidence of identity if a birth certificate is unavailable. 29. The DSS allocates every person registered for NI with a unique NI number. The NI number has a standard format consisting of two letters followed by three pairs of numbers and a further letter. It contains no indication in itself of the holder's sex or of any other personal information. The NI number is used to identify each person with a NI account (there are at present approximately 60 million individual NI accounts). The DSS are thereby able to record details of all NI contributions paid into the account during the NI account holder's life and to monitor each person's liabilities, contributions and entitlement to benefits accurately. New numbers may in exceptional cases be issued to persons e.g. under the witness protection schemes or to protect the identity of child offenders. 30. Under Regulation 44 of the Social Security (Contributions) Regulations 1979, made under powers conferred by paragraph 8(1)(p) of Schedule 1 to the Social Security Contributions and Benefits Act 1992, specified individuals are placed under an obligation to apply for a NI number unless one has already been allocated to them. 31. Under Regulation 45 of the 1979 Regulations, an employee is under an obligation to supply his NI number to his employer on request. 32. Section 112(1) of the Social Security Administration Act 1992 provides: “(1) If a person for the purpose of obtaining any benefit or other payment under the legislation ...[as defined in section 110 of the Act]... whether for himself or some other person, or for any other purpose connected with that legislation - (a) makes a statement or representation which he knows to be false; or (b) produces or furnishes, or knowingly causes or knowingly allows to be produced or furnished, any document or information which he knows to be false in a material particular, he shall be guilty of an offence.” 33. It would therefore be an offence under this section for any person to make a false statement in order to obtain a NI number. 34. Any person may adopt such first name, surname or style of address (e.g. Mr, Mrs, Miss, Ms) that he or she wishes for the purposes of the name used for NI registration. The DSS will record any such amendments on the person's computer records, manual records and NI number card. But, the DSS operates a policy of only issuing one NI number for each person regardless of any changes that occur to that person's sexual identity through procedures such as gender re-assignment surgery. A renewed application for leave to apply for judicial review of the legality of this policy brought by a male-to-female transsexual was dismissed by the Court of Appeal in the case of R v. Secretary of State for Social Services ex parte Hooker (1993) (unreported). McCowan LJ giving the judgment of the Court stated (at page 3 of the transcript): “...since it will not make the slightest practical difference, far from the Secretary of State's decision being an irrational one, I consider it a perfectly rational decision. I would further reject the suggestion that the applicant had a legitimate expectation that a new number would be given to her for psychological purposes when, in fact, its practical effect would be nil.” 35. Information held in the DSS NI records is confidential and will not normally be disclosed to third parties without the consent of the person concerned. Exceptions are possible in cases where the public interest is at stake or the disclosure is necessary to protect public funds. By virtue of Section 123 of the Social Security Administration Act 1992, it is an offence for any person employed in social security administration to disclose without lawful authority information acquired in the course of his or her employment. 36. The DSS operates a policy of normally marking records belonging to persons known to be transsexual as nationally sensitive. Access to these records is controlled by DSS management. Any computer printer output from these records will normally be referred to a special section within the DSS to ensure that identity details conform with those requested by the relevant person. 37. NI contributions are made by way of deduction from an employee's pay by the employer and then by payment to the Inland Revenue (for onward transmission to the DSS). Employers at present will make such deductions for a female employee until she reaches the pensionable age of 60 and for a male employee until he reaches the pensionable age of 65. The DSS operates a policy for male-to-female transsexuals whereby they may enter into an undertaking with the DSS to pay direct to the DSS any NI contributions due after the transsexual has reached the age of 60 which have ceased to be deducted by the employer in the belief that the employee is female. In the case of female-to-male transsexuals, any deductions which are made by an employer after the age of 60 may be reclaimed directly from the DSS by the employee. 38. In some cases employers will require proof that an apparent female employee has reached, or is about to reach, the age of 60 and so entitled not to have the NI deductions made. Such proof may be provided in the form of an Age Exemption Certificate (form CA4180 or CF384). The DSS may issue such a certificate to a male-to-female transsexual where such a person enters into an undertaking to pay any NI contributions direct to the DSS. 2. State pensions 39. A male-to-female transsexual is currently entitled to a State pension at the retirement age of 65 applied to men and not the age of 60 which is applicable to women. A full pension will be payable only if she has made contributions for 44 years as opposed to the 39 years required of women. 40. A person's sex for the purposes of pensionable age is determined according to biological sex at birth. This approach was approved by the Social Security Commissioner (a judicial officer, who specialises in social security law) in a number of cases: In the case entitled R(P) 2/80, a male-to-female transsexual claimed entitlement to a pensionable age of 60. The Commissioner dismissed the claimant's appeal and stated at paragraph 9 of his decision: “(a) In my view, the word “woman” in section 27 of the Act means a person who is biologically a woman. Sections 28 and 29 contain many references to a woman in terms which indicate that a person is denoted who is capable of forming a valid marriage with a husband. That can only be a person who is biologically a woman. (b) I doubt whether the distinction between a person who is biologically, and one who is socially, female has ever been present in the minds of the legislators when enacting relevant statutes. However that may be, it is certain that Parliament has never conferred on any person the right or privilege of changing the basis of his national insurance rights from those appropriate to a man to those appropriate to a woman. In my judgment, such a fundamental right or privilege would have to be expressly granted. ... (d) I fully appreciate the unfortunate predicament of the claimant, but the merits are not all on her side. She lived as a man from birth until 1975, and, during the part of that period when she was adult, her insurance rights were those appropriate to a man. These rights are in some respects more extensive than those appropriate to a woman. Accordingly, an element of unfairness to the general public might have to be tolerated so as to allow the payment of a pension to her at the pensionable age of a woman.” 41. The Government have instituted plans to eradicate the difference between men and women concerning age of entitlement to State pensions. Equalisation of the pension age is to begin in 2010 and it is anticipated that by 2020 the transition will be complete. As regards the issue of free bus passes in London, which also differentiated between men and women concerning age of eligibility (65 and 60 respectively), the Government have also announced plans to introduce a uniform age. 3. Employment 42. Under section 16(1) of the Theft Act 1968, it is a criminal offence liable to a sentence of imprisonment to dishonestly obtain a pecuniary advantage by deception. Pecuniary advantage includes, under section 16(2)(c), being given the opportunity to earn remuneration in employment. Should a post-operative transsexual be asked by a prospective employer to disclose all their previous names, but fail to make full disclosure before entering into a contract of employment, an offence might be committed. Furthermore, should the employer discover the lack of full disclosure, there might also be a risk of dismissal or an action by the employer for damages. 43. In its judgment of 30 April 1996, in the case of P. v. S. and Cornwall County Council, the European Court of Justice (ECJ) held that discrimination arising from gender reassignment constituted discrimination on grounds of sex and, accordingly, Article 5 § 1 of Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion and working conditions, precluded dismissal of a transsexual for a reason related to a gender reassignment. The ECJ held, rejecting the argument of the United Kingdom Government that the employer would also have dismissed P. if P. had previously been a woman and had undergone an operation to become a man, that “... where a person is dismissed on the ground that he or she intends to undergo or has undergone gender reassignment, he or she is treated unfavourably by comparison with persons of the sex to which he or she was deemed to belong before undergoing gender reassignment. To tolerate such discrimination would be tantamount, as regards such a person, to a failure to respect the dignity and freedom to which he or she is entitled and which the Court has a duty to safeguard.” (paragraphs 21–22) 44. The ruling of the ECJ was applied by the Employment Appeal Tribunal in a decision handed down on 27 June 1997 ( Chessington World of Adventures Ltd v. Reed [1997] 1 Industrial Law Reports). 45. The Sexual Discrimination (Gender Re-assignment) Regulations 1999 were issued to comply with the ruling of the European Court of Justice in P. v. S. and Cornwall County Council (30 April 1996). This provides generally that transsexual persons should not be treated less favourably in employment because they are transsexual (whether pre- or post-operative). E. Rape 46. Prior to 1994, for the purposes of the law of rape, a male-to-female transsexual would have been regarded as a male. Pursuant to section 142 of the Criminal Justice and Public Order Act 1994, for rape to be established there has to be “vaginal or anal intercourse with a person”. In a judgment of 28 October 1996, the Reading Crown Court found that penile penetration of a male to female transsexual's artificially constructed vagina amounted to rape: R. v. Matthews (unreported). F. Imprisonment 47. Prison rules require that male and female prisoners shall normally be detained separately and also that no prisoner shall be stripped and searched in the sight of a person of the opposite sex (Rules 12(1) and 41(3) of the Prison Rules 1999 respectively). 48. According to the Report of the Working Group on Transsexual People (Home Office April 2000, see further below, paragraphs 49-50), which conducted a review of law and practice, post-operative transsexuals where possible were allocated to an establishment for prisoners of their new gender. Detailed guidelines concerning the searching of transsexual prisoners were under consideration by which post-operative male to female transsexuals would be treated as women for the purposes of searches and searched only by women (see paragraphs 2.75-2.76). G. Current developments 1. Review of the situation of transsexuals in the United Kingdom 49. On 14 April 1999, the Secretary of State for the Home Department announced the establishment of an Interdepartmental Working Group on Transsexual People with the following terms of reference: “to consider, with particular reference to birth certificates, the need for appropriate legal measures to address the problems experienced by transsexuals, having due regard to scientific and societal developments, and measures undertaken in other countries to deal with this issue.” 50. The Working Group produced a report in April 2000 in which it examined the current position of transsexuals in the United Kingdom, with particular reference to their status under national law and the changes which might be made. It concluded: “5.1. Transsexual people deal with their condition in different ways. Some live in the opposite sex without any treatment to acquire its physical attributes. Others take hormones so as to obtain some of the secondary characteristics of their chosen sex. A smaller number will undergo surgical procedures to make their bodies resemble, so far as possible, those of their acquired gender. The extent of treatment may be determined by individual choice, or by other factors such as health or financial resources. Many people revert to their biological sex after living for some time in the opposite sex, and some alternate between the two sexes throughout their lives. Consideration of the way forward must therefore take into account the needs of people at these different stages of change. 5.2. Measures have already been taken in a number of areas to assist transsexual people. For example, discrimination in employment against people on the basis of their transsexuality has been prohibited by the Sex Discrimination (Gender Reassignment) Regulations 1999 which, with few exceptions, provide that a transsexual person (whether pre- or post-operative) should not be treated less favourably because they are transsexual. The criminal justice system (i.e. the police, prisons, courts, etc.) try to accommodate the needs of transsexual people so far as is possible within operational constraints. A transsexual offender will normally be charged in their acquired gender, and a post-operative prisoner will usually be sent to a prison appropriate to their new status. Transsexual victims and witnesses will, in most circumstances, similarly be treated as belonging to their acquired gender. 5.3. In addition, official documents will often be issued in the acquired gender where the issue is identifying the individual rather than legal status. Thus, a transsexual person may obtain a passport, driving licence, medical card etc, in their new gender. We understand that many non-governmental bodies, such as examination authorities, will often re-issue examination certificates etc. (or otherwise provide evidence of qualifications) showing the required gender. We also found that at least one insurance company will issue policies to transsexual people in their acquired gender. 5.4. Notwithstanding such provisions, transsexual people are conscious of certain problems which do not have to be faced by the majority of the population. Submissions to the Group suggested that the principal areas where the transsexual community is seeking change are birth certificates, the right to marry and full recognition of their new gender for all legal purposes. 5.5. We have identified three options for the future; – to leave the current situation unchanged; – to issue birth certificates showing the new name and, possibly, the new gender; – to grant full legal recognition of the new gender subject to certain criteria and procedures. We suggest that before taking a view on these options the Government may wish to put the issues out to public consultation.” 51. The report was presented to Parliament in July 2000. Copies were placed in the libraries of both Houses of Parliament and sent to 280 recipients, including Working Group members, Government officials, Members of Parliament, individuals and organisations. It was publicised by a Home Office press notice and made available to members of the public through application to the Home Office in writing, E-mail, by telephone or the Home Office web site. 2. Recent domestic case-law 52. In the case of Bellinger v. Bellinger, EWCA Civ 1140 [2001], 3 FCR 1, the appellant who had been classified at birth as a man had undergone gender re-assignment surgery and in 1981 had gone through a form of marriage with a man who was aware of her background. She sought a declaration under the Family Law Act 1986 that the marriage was valid. The Court of Appeal held, by a majority, that the appellant's marriage was invalid as the parties were not respectively male and female, which terms were to be determined by biological criteria as set out in the decision of Corbett v. Corbett [1971]. Although it was noted that there was an increasing emphasis upon the impact of psychological factors on gender, there was no clear point at which such factors could be said to have effected a change of gender. A person correctly registered as male at birth, who had undergone gender reassignment surgery and was now living as a woman was biologically a male and therefore could not be defined as female for the purposes of marriage. It was for Parliament, not for the courts, to decide at what point it would be appropriate to recognise that a person who had been assigned to one sex at birth had changed gender for the purposes of marriage. Dame Elizabeth Butler- Sloss, President of the Family Division noted the warnings of the European Court of Human Rights about continued lack of response to the situation of transsexuals and observed that largely as a result of these criticisms an interdepartmental working group had been set up, which had in April 2000 issued a careful and comprehensive review of the medical condition, current practice in other countries and the state of English law in relevant aspects of the life of an individual: “[95.] ... We inquired of Mr Moylan on behalf of the Attorney-General, what steps were being taken by any government department, to take forward any of the recommendations of the Report, or to prepare a consultation paper for public discussion. [96.] To our dismay, we were informed that no steps whatsoever have been, or to the knowledge of Mr Moylan, were intended to be, taken to carry this matter forward. It appears, therefore, that the commissioning and completion of the report is the sum of the activity on the problems identified both by the Home Secretary in his terms of reference, and by the conclusions of the members of the working group. That would seem to us to be a failure to recognise the increasing concerns and changing attitudes across western Europe which have been set out so clearly and strongly in judgments of Members of the European Court at Strasbourg, and which in our view need to be addressed by the UK... [109.] We would add however, with the strictures of the European Court of Human Rights well in mind, that there is no doubt that the profoundly unsatisfactory nature of the present position and the plight of transsexuals requires careful consideration. The recommendation of the interdepartmental working group for public consultation merits action by the government departments involved in these issues. The problems will not go away and may well come again before the European Court sooner rather than later.” 53. In his dissenting judgment, Lord Justice Thorpe considered that the foundations of the judgment in Corbett v. Corbett were no longer secure, taking the view that an approach restricted to biological criteria was no longer permissible in the light of scientific, medical and social change. “[155.] To make the chromosomal factor conclusive, or even dominant, seems to me particularly questionable in the context of marriage. For it is an invisible feature of an individual, incapable of perception or registration other than by scientific test. It makes no contribution to the physiological or psychological self. Indeed in the context of the institution of marriage as it is today it seems to me right as a matter of principle and logic to give predominance to psychological factors just as it seem right to carry out the essential assessment of gender at or shortly before the time of marriage rather than at the time of birth... [160.] The present claim lies most evidently in the territory of the family justice system. That system must always be sufficiently flexible to accommodate social change. It must also be humane and swift to recognise the right to human dignity and to freedom of choice in the individual's private life. One of the objectives of statute law reform in this field must be to ensure that the law reacts to and reflects social change. That must also be an objective of the judges in this field in the construction of existing statutory provisions. I am strongly of the opinion that there are not sufficiently compelling reasons, having regard to the interests of others affected or, more relevantly, the interests of society as a whole, to deny this appellant legal recognition of her marriage. I would have allowed this appeal.” He also noted the lack of progress in domestic reforms: “[151.] ...although the [interdepartmental] report has been made available by publication, Mr Moylan said that there has since been no public consultation. Furthermore when asked whether the Government had any present intention of initiating public consultation or any other process in preparation for a parliamentary Bill, Mr Moylan said that he had no instructions. Nor did he have any instructions as to whether the Government intended to legislate. My experience over the last 10 years suggests how hard it is for any department to gain a slot for family law reform by primary legislation. These circumstances reinforce my view that it is not only open to the court but it is its duty to construe s 11(c) either strictly, alternatively liberally as the evidence and the submissions in this case justify.” 3. Proposals to reform the system of registration of births, marriages and deaths 54. In January 2002, the Government presented to Parliament the document “Civil Registration: Vital Change (Birth, Marriage and Death Registration in the 21 st Century)” which set out plans for creating a central database of registration records which moves away from a traditional snapshot of life events towards the concept of a living record or single “through life” record: “In time, updating the information in a birth record will mean that changes to a person's names, and potentially, sex will be able to be recorded.” ( para. 5.1) “5.5 Making changes There is strong support for some relaxation to the rules that govern corrections to the records. Currently, once a record has been created, the only corrections that can be made are where it can be shown that an error was made at the time of registration and that this can be established. Correcting even the simplest spelling error requires formal procedures and the examination of appropriate evidence. The final records contains the full original and corrected information which is shown on subsequently issued certificates. The Government recognises that this can act as a disincentive. In future, changes (to reflect developments after the original record was made) will be made and formally recorded. Documents issued from the records will contain only the information as amended, though all the information will be retained. ...” H. Liberty's third party intervention 55. Liberty updated the written observations submitted in the case of Sheffield and Horsham concerning the legal recognition of transsexuals in comparative law (Sheffield and Horsham v. the United Kingdom judgment of 30 July 1998, Reports of Judgments and Decisions 1998-V, p. 2021, § 35). In its 1998 study, it had found that over the previous decade there had been an unmistakable trend in the member States of the Council of Europe towards giving full legal recognition to gender re-assignment. In particular, it noted that out of thirty seven countries analysed only four (including the United Kingdom) did not permit a change to be made to a person's birth certificate in one form or another to reflect the re-assigned sex of that person. In cases where gender re-assignment was legal and publicly funded, only the United Kingdom and Ireland did not give full legal recognition to the new gender identity. 56. In its follow up study submitted on 17 January 2002, Liberty noted that while there had not been a statistical increase in States giving full legal recognition of gender re-assignment within Europe, information from outside Europe showed developments in this direction. For example, there had been statutory recognition of gender re-assignment in Singapore, and a similar pattern of recognition in Canada, South Africa, Israel, Australia, New Zealand and all except two of the States of the United States of America. It cited in particular the cases of Attorney-General v. Otahuhu Family Court [1995] 1 NZLR 60 and Re Kevin [2001] FamCA 1074 where in New Zealand and Australia transsexual persons' assigned sex was recognised for the purposes of validating their marriages: In the latter case, Mr Justice Chisholm held: “I see no basis in legal principle or policy why Australian law should follow the decision in Corbett. To do so would, I think, create indefensible inconsistencies between Australian marriage law and other Australian laws. It would take the law in a direction that is generally contrary to development in other countries. It would perpetuate a view that flies in the face of current medical understanding and practice. Most of all, it would impose indefensible suffering on people who have already had more than their share of difficulty, with no benefit to society... ...Because the words 'man' and 'woman' have their ordinary contemporary meaning, there is no formulaic solution to determining the sex of an individual for the purpose of the law of marriage. That is, it cannot be said as a matter of law that the question in a particular case will be determined by applying a single criterion, or limited list of criteria. Thus it is wrong to say that a person's sex depends on any single factor, such as chromosomes or genital sex; or some limited range of factors, such as the state of the person's gonads, chromosomes or genitals (whether at birth or at some other time). Similarly, it would be wrong in law to say that the question can be resolved by reference solely to the person's psychological state, or by identifying the person's 'brain sex'. To determine a person's sex for the law of marriage, all relevant matters need to be considered. I do not seek to state a complete list or suggest that any factors necessarily have more importance than others. However the relevant matters include, in my opinion, the person's biological and physical characteristics at birth (including gonads, genitals and chromosomes); the person's life experiences, including the sex in which he or she was brought up and the person's attitude to it; the person's self-perception as a man or a woman; the extent to which the person has functioned in society as a man or a woman; any hormonal, surgical or other medical sex re-assignment treatments the person has undergone, and the consequences of such treatment; and the person's biological, psychological and physical characteristics at the time of the marriage... For the purpose of ascertaining the validity of a marriage under Australian law the question whether a person is a man or a woman is to be determined as of the date of marriage...” 57. As regarded the eligibility of post-operative transsexuals to marry a person of sex opposite to their acquired gender, Liberty's survey indicated that 54% of Contracting States permitted such marriage (Annex 6 listed Austria, Belgium, Denmark, Estonia, Finland, France, Germany, Greece, Iceland, Italy, Latvia, Luxembourg, the Netherlands, Norway, Slovakia, Spain, Sweden, Switzerland, Turkey and Ukraine), while 14% did not (Ireland and the United Kingdom did not permit marriage, while no legislation existed in Moldova, Poland, Romania and Russia). The legal position in the remaining 32% was unclear. THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 59. The applicant claims a violation of Article 8 of the Convention, the relevant part of which provides as follows: “1. Everyone has the right to respect for his private ... life... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Arguments of the parties 1. The applicant 60. The applicant submitted that despite warnings from the Court as to the importance for keeping under review the need for legal reform the Government had still not taken any constructive steps to address the suffering and distress experienced by the applicant and other post-operative transsexuals. The lack of legal recognition of her changed gender had been the cause of numerous discriminatory and humiliating experiences in her everyday life. In the past, in particular from 1990 to 1992, she was abused at work and did not receive proper protection against discrimination. She claimed that all the special procedures through which she had to go in respect of her NI contributions and State retirement pension constituted in themselves an unjustified difference in treatment, as they would have been unnecessary had she been recognised as a woman for legal purposes. In particular, the very fact that the DSS operated a policy of marking the records of transsexuals as sensitive was a difference in treatment. As a result, for example, the applicant cannot attend the DSS without having to make a special appointment. 61. The applicant further submitted that the danger of her employer learning about her past identity was real. It was possible for the employer to trace back her employment history on the basis of her NI number and this had in fact happened. She claimed that her recent failure to obtain a promotion was the result of the employer realising her status. 62. As regarded pensionable age, the applicant submitted that she had worked for 44 years and that the refusal of her entitlement to a State retirement pension at the age of 60 on the basis of the pure biological test for determining sex was contrary to Article 8 of the Convention. She was similarly unable to apply for a free London bus pass at the age of 60 as other women were but had to wait until the age of 65. She was also required to declare her birth sex or disclose her birth certificate when applying for life insurance, mortgages, private pensions or car insurance, which led her not to pursue these possibilities to her advantage. 63. The applicant argued that rapid changes, in respect of the scientific understanding of, and the social attitude towards, transsexualism were taking place not only across Europe but elsewhere. She referred, inter alia, to Article 29 of the Netherlands Civil Code, Article 6 of Law No. 164 of 14 April 1982 of Italy, and Article 29 of the Civil Code of Turkey as amended by Law No. 3444 of 4 May 1988, which allowed the amendment of civil status. Also, under a 1995 New Zealand statute, Part V, Section 28, a court could order the legal recognition of the changed gender of a transsexual after examination of medical and other evidence. The applicant saw no convincing reason why a similar approach should not be adopted in the United Kingdom. The applicant also pointed to increasing social acceptance of transsexuals and interest in issues of concern to them reflected by coverage in the press, radio and television, including sympathetic dramatisation of transsexual characters in mainstream programming. 2. The Government 64. Referring to the Court's case-law, the Government maintained that there was no generally accepted approach among the Contracting States in respect of transsexuality and that, in view of the margin of appreciation left to States under the Convention, the lack of recognition in the United Kingdom of the applicant's new gender identity for legal purposes did not entail a violation of Article 8 of the Convention. They disputed the applicant's assertion that scientific research and “massive societal changes” had led to wide acceptance, or consensus on issues, of transsexualism. 65. The Government accepted that there may be specific instances where the refusal to grant legal recognition of a transsexual's new sexual identity may amount to a breach of Article 8, in particular where the transsexual as a result suffered practical and actual detriment and humiliation on a daily basis (see the B. v. France judgment of 25 March 1992, Series A no. 232-C, pp. 52-54, §§ 59-63). However, they denied that the applicant faced any comparable practical disadvantages, as she had been able inter alia to obtain important identification documents showing her chosen names and sexual identity (e.g. new passport and driving licence). 66. As regards the specific difficulties claimed by the applicant, the Government submitted that an employer was unable to establish the sex of the applicant from the NI number itself since it did not contain any encoded reference to her sex. The applicant had been issued with a new NI card with her changed name and style of address. Furthermore, the DSS had a policy of confidentiality of the personal details of a NI number holder and, in particular, a policy and procedure for the special protection of transsexuals. As a result, an employer had no means of lawfully obtaining information from the DSS about the previous sexual identity of an employee. It was also in their view highly unlikely that the applicant's employer would discover her change of gender through her NI number in any other way. The refusal to issue a new NI number was justified, the uniqueness of the NI number being of critical importance in the administration of the national insurance system, and for the prevention of the fraudulent use of old NI numbers. 67. The Government argued that the applicant's fear that her previous sexual identity would be revealed upon reaching the age of 60, when her employer would no longer be required to make NI contribution deductions from her pay, was entirely without foundation, the applicant having already been issued with a suitable Age Exemption Certificate on Form CF384. 68. Concerning the impossibility for the applicant to obtain a State retirement pension at the age of 60, the Government submitted that the distinction between men and women as regarded pension age had been held to be compatible with European Community law (Article 7(1)(a) of Directive 79/7/EEC; European Court of Justice, R. v. Secretary of State for Social Security ex parte Equal Opportunities Commission Case C-9/91 [1992] ECR I-4927). Also, since the preserving of the applicant's legal status as a man was not contrary as such to Article 8 of the Convention, it would constitute favourable treatment unfair to the general public to allow the applicant's pension entitlement at the age of 60. 69. Finally, as regards allegations of assault and abuse at work, the Government submitted that the applicant could have pressed charges under the criminal law against harassment and assault. Harassment in the workplace on the grounds of transsexuality would also give rise to a claim under the Sex Discrimination Act 1975 where the employers knew of the harassment and took no steps to prevent it. Adequate protection was therefore available under domestic law. 70. The Government submitted that a fair balance had therefore been struck between the rights of the individual and the general interest of the community. To the extent that there were situations where a transsexual may face limited disclosure of their change of sex, these situations were unavoidable and necessary e.g. in the context of contracts of insurance where medical history and gender affected the calculation of premiums. B. The Court's assessment 1. Preliminary considerations 71. This case raises the issue whether or not the respondent State has failed to comply with a positive obligation to ensure the right of the applicant, a post-operative male to female transsexual, to respect for her private life, in particular through the lack of legal recognition given to her gender re-assignment. 72. The Court recalls that the notion of “respect” as understood in Article 8 is not clear cut, especially as far as the positive obligations inherent in that concept are concerned: having regard to the diversity of practices followed and the situations obtaining in the Contracting States, the notion's requirements will vary considerably from case to case and the margin of appreciation to be accorded to the authorities may be wider than that applied in other areas under the Convention. In determining whether or not a positive obligation exists, regard must also be had to the fair balance that has to be struck between the general interest of the community and the interests of the individual, the search for which balance is inherent in the whole of the Convention ( Cossey v. the United Kingdom judgment of 27 September 1990, Series A no. 184, p. 15, § 37). 73. The Court recalls that it has already examined complaints about the position of transsexuals in the United Kingdom (see the Rees v. the United Kingdom judgment of 17 October 1986, Series A no. 106, the Cossey v. the United Kingdom judgment, cited above; the X., Y. and Z. v. the United Kingdom judgment of 22 April 1997, Reports of Judgments and Decisions 1997-II, and the Sheffield and Horsham v. the United Kingdom judgment of 30 July 1998, Reports 1998-V, p. 2011). In those cases, it held that the refusal of the United Kingdom Government to alter the register of births or to issue birth certificates whose contents and nature differed from those of the original entries concerning the recorded gender of the individual could not be considered as an interference with the right to respect for private life (the above-mentioned Rees judgment, p. 14, § 35, and Cossey judgment, p. 15, § 36). It also held that there was no positive obligation on the Government to alter their existing system for the registration of births by establishing a new system or type of documentation to provide proof of current civil status. Similarly, there was no duty on the Government to permit annotations to the existing register of births, or to keep any such annotation secret from third parties (the above-mentioned Rees judgment, p. 17, § 42, and Cossey judgment, p. 15, §§ 38-39). It was found in those cases that the authorities had taken steps to minimise intrusive enquiries (for example, by allowing transsexuals to be issued with driving licences, passports and other types of documents in their new name and gender). Nor had it been shown that the failure to accord general legal recognition of the change of gender had given rise in the applicants' own case histories to detriment of sufficient seriousness to override the respondent State's margin of appreciation in this area (the Sheffield and Horsham judgment cited above, p. 2028-29, § 59). 74. While the Court is not formally bound to follow its previous judgments, it is in the interests of legal certainty, foreseeability and equality before the law that it should not depart, without good reason, from precedents laid down in previous cases (see, for example, Chapman v. the United Kingdom [GC], no. 27238/95, ECHR 2001-I, § 70). However, since the Convention is first and foremost a system for the protection of human rights, the Court must have regard to the changing conditions within the respondent State and within Contracting States generally and respond, for example, to any evolving convergence as to the standards to be achieved (see, amongst other authorities, the Cossey judgment, p. 14, § 35, and Stafford v. the United Kingdom [GC], no. 46295/99, judgment of 28 May 2002, to be published in ECHR 2002-, §§ 67-68). It is of crucial importance that the Convention is interpreted and applied in a manner which renders its rights practical and effective, not theoretical and illusory. A failure by the Court to maintain a dynamic and evolutive approach would indeed risk rendering it a bar to reform or improvement (see the above-cited Stafford v. the United Kingdom judgment, § 68). In the present context the Court has, on several occasions since 1986, signalled its consciousness of the serious problems facing transsexuals and stressed the importance of keeping the need for appropriate legal measures in this area under review (see the Rees judgment, § 47; the Cossey judgment, § 42; the Sheffield and Horsham judgment, § 60). 75. The Court proposes therefore to look at the situation within and outside the Contracting State to assess “in the light of present-day conditions” what is now the appropriate interpretation and application of the Convention (see the Tyrer v. the United Kingdom judgment of 25 April 1978, Series A no. 26, § 31, and subsequent case-law). 2. The applicant's situation as a transsexual 76. The Court observes that the applicant, registered at birth as male, has undergone gender re-assignment surgery and lives in society as a female. Nonetheless, the applicant remains, for legal purposes, a male. This has had, and continues to have, effects on the applicant's life where sex is of legal relevance and distinctions are made between men and women, as, inter alia, in the area of pensions and retirement age. For example, the applicant must continue to pay national insurance contributions until the age of 65 due to her legal status as male. However as she is employed in her gender identity as a female, she has had to obtain an exemption certificate which allows the payments from her employer to stop while she continues to make such payments herself. Though the Government submitted that this made due allowance for the difficulties of her position, the Court would note that she nonetheless has to make use of a special procedure that might in itself call attention to her status. 77. It must also be recognised that serious interference with private life can arise where the state of domestic law conflicts with an important aspect of personal identity (see, mutatis mutandis, Dudgeon v. the United Kingdom judgment of 22 October 1981, Series A no. 45, § 41). The stress and alienation arising from a discordance between the position in society assumed by a post-operative transsexual and the status imposed by law which refuses to recognise the change of gender cannot, in the Court's view, be regarded as a minor inconvenience arising from a formality. A conflict between social reality and law arises which places the transsexual in an anomalous position, in which he or she may experience feelings of vulnerability, humiliation and anxiety. 78. In this case, as in many others, the applicant's gender re-assignment was carried out by the national health service, which recognises the condition of gender dysphoria and provides, inter alia, re-assignment by surgery, with a view to achieving as one of its principal purposes as close an assimilation as possible to the gender in which the transsexual perceives that he or she properly belongs. The Court is struck by the fact that nonetheless the gender re-assignment which is lawfully provided is not met with full recognition in law, which might be regarded as the final and culminating step in the long and difficult process of transformation which the transsexual has undergone. The coherence of the administrative and legal practices within the domestic system must be regarded as an important factor in the assessment carried out under Article 8 of the Convention. Where a State has authorised the treatment and surgery alleviating the condition of a transsexual, financed or assisted in financing the operations and indeed permits the artificial insemination of a woman living with a female-to-male transsexual (as demonstrated in the case of X., Y. and Z. v. the United Kingdom, cited above), it appears illogical to refuse to recognise the legal implications of the result to which the treatment leads. 79. The Court notes that the unsatisfactory nature of the current position and plight of transsexuals in the United Kingdom has been acknowledged in the domestic courts (see Bellinger v. Bellinger, cited above, paragraph 52) and by the Interdepartmental Working Group which surveyed the situation in the United Kingdom and concluded that, notwithstanding the accommodations reached in practice, transsexual people were conscious of certain problems which did not have to be faced by the majority of the population (paragraph 50 above). 80. Against these considerations, the Court has examined the countervailing arguments of a public interest nature put forward as justifying the continuation of the present situation. It observes that in the previous United Kingdom cases weight was given to medical and scientific considerations, the state of any European and international consensus and the impact of any changes to the current birth register system. 3. Medical and scientific considerations 81. It remains the case that there are no conclusive findings as to the cause of transsexualism and, in particular, whether it is wholly psychological or associated with physical differentiation in the brain. The expert evidence in the domestic case of Bellinger v. Bellinger was found to indicate a growing acceptance of findings of sexual differences in the brain that are determined pre- natally, though scientific proof for the theory was far from complete. The Court considers it more significant however that transsexualism has wide international recognition as a medical condition for which treatment is provided in order to afford relief (for example, the Diagnostic and Statistical Manual fourth edition (DSM-IV) replaced the diagnosis of transsexualism with “gender identity disorder”; see also the International Classification of Diseases, tenth edition (ICD-10)). The United Kingdom national health service, in common with the vast majority of Contracting States, acknowledges the existence of the condition and provides or permits treatment, including irreversible surgery. The medical and surgical acts which in this case rendered the gender re-assignment possible were indeed carried out under the supervision of the national health authorities. Nor, given the numerous and painful interventions involved in such surgery and the level of commitment and conviction required to achieve a change in social gender role, can it be suggested that there is anything arbitrary or capricious in the decision taken by a person to undergo gender re-assignment. In those circumstances, the ongoing scientific and medical debate as to the exact causes of the condition is of diminished relevance. 82. While it also remains the case that a transsexual cannot acquire all the biological characteristics of the assigned sex (Sheffield and Horsham, cited above, p. 2028, § 56), the Court notes that with increasingly sophisticated surgery and types of hormonal treatments, the principal unchanging biological aspect of gender identity is the chromosomal element. It is known however that chromosomal anomalies may arise naturally (for example, in cases of intersex conditions where the biological criteria at birth are not congruent) and in those cases, some persons have to be assigned to one sex or the other as seems most appropriate in the circumstances of the individual case. It is not apparent to the Court that the chromosomal element, amongst all the others, must inevitably take on decisive significance for the purposes of legal attribution of gender identity for transsexuals (see the dissenting opinion of Thorpe LJ in Bellinger v. Bellinger cited in paragraph 52 above; and the judgment of Chisholm J in the Australian case, Re Kevin, cited in paragraph 55 above). 83. The Court is not persuaded therefore that the state of medical science or scientific knowledge provides any determining argument as regards the legal recognition of transsexuals. 4. The state of any European and international consensus 84. Already at the time of the Sheffield and Horsham case, there was an emerging consensus within Contracting States in the Council of Europe on providing legal recognition following gender re-assignment (see § 35 of that judgment ). The latest survey submitted by Liberty in the present case shows a continuing international trend towards legal recognition (see paragraphs 55-56 above). In Australia and New Zealand, it appears that the courts are moving away from the biological birth view of sex (as set out in the United Kingdom case of Corbett v. Corbett ) and taking the view that sex, in the context of a transsexual wishing to marry, should depend on a multitude of factors to be assessed at the time of the marriage. 85. The Court observes that in the case of Rees in 1986 it had noted that little common ground existed between States, some of which did permit change of gender and some of which did not and that generally speaking the law seemed to be in a state of transition (see § 37). In the later case of Sheffield and Horsham, the Court's judgment laid emphasis on the lack of a common European approach as to how to address the repercussions which the legal recognition of a change of sex may entail for other areas of law such as marriage, filiation, privacy or data protection. While this would appear to remain the case, the lack of such a common approach among forty-three Contracting States with widely diverse legal systems and traditions is hardly surprising. In accordance with the principle of subsidiarity, it is indeed primarily for the Contracting States to decide on the measures necessary to secure Convention rights within their jurisdiction and, in resolving within their domestic legal systems the practical problems created by the legal recognition of post-operative gender status, the Contracting States must enjoy a wide margin of appreciation. The Court accordingly attaches less importance to the lack of evidence of a common European approach to the resolution of the legal and practical problems posed, than to the clear and uncontested evidence of a continuing international trend in favour not only of increased social acceptance of transsexuals but of legal recognition of the new sexual identity of post-operative transsexuals. 5. Impact on the birth register system 86. In the Rees case, the Court allowed that great importance could be placed by the Government on the historical nature of the birth record system. The argument that allowing exceptions to this system would undermine its function weighed heavily in the assessment. 87. It may be noted however that exceptions are already made to the historic basis of the birth register system, namely, in the case of legitimisation or adoptions, where there is a possibility of issuing updated certificates to reflect a change in status after birth. To make a further exception in the case of transsexuals (a category estimated as including some 2,000-5,000 persons in the United Kingdom according to the Interdepartmental Working Group Report, p. 26) would not, in the Court's view, pose the threat of overturning the entire system. Though previous reference has been made to detriment suffered by third parties who might be unable to obtain access to the original entries and to complications occurring in the field of family and succession law (see the Rees judgment, p. 18, § 43), these assertions are framed in general terms and the Court does not find, on the basis of the material before it at this time, that any real prospect of prejudice has been identified as likely to arise if changes were made to the current system. 88. Furthermore, the Court notes that the Government have recently issued proposals for reform which would allow ongoing amendment to civil status data (see paragraph 54). It is not convinced therefore that the need to uphold rigidly the integrity of the historic basis of the birth registration system takes on the same importance in the current climate as it did in 1986. 6. Striking a balance in the present case 89. The Court has noted above (paragraphs 76-79) the difficulties and anomalies of the applicant's situation as a post-operative transsexual. It must be acknowledged that the level of daily interference suffered by the applicant in B. v. France ( judgment of 25 March 1992, Series A no. 232) has not been attained in this case and that on certain points the risk of difficulties or embarrassment faced by the present applicant may be avoided or minimised by the practices adopted by the authorities. 90. Nonetheless, the very essence of the Convention is respect for human dignity and human freedom. Under Article 8 of the Convention in particular, where the notion of personal autonomy is an important principle underlying the interpretation of its guarantees, protection is given to the personal sphere of each individual, including the right to establish details of their identity as individual human beings (see, inter alia, Pretty v. the United Kingdom, no. 2346/02, judgment of 29 April 2002, § 62, and Mikulić v. Croatia, no. 53176/99, judgment of 7 February 2002, § 53, both to be published in ECHR 2002-...). In the twenty first century the right of transsexuals to personal development and to physical and moral security in the full sense enjoyed by others in society cannot be regarded as a matter of controversy requiring the lapse of time to cast clearer light on the issues involved. In short, the unsatisfactory situation in which post-operative transsexuals live in an intermediate zone as not quite one gender or the other is no longer sustainable. Domestic recognition of this evaluation may be found in the report of the Interdepartmental Working Group and the Court of Appeal's judgment of Bellinger v. Bellinger (see paragraphs 50, 52-53). 91. The Court does not underestimate the difficulties posed or the important repercussions which any major change in the system will inevitably have, not only in the field of birth registration, but also in the areas of access to records, family law, affiliation, inheritance, criminal justice, employment, social security and insurance. However, as is made clear by the report of the Interdepartmental Working Group, these problems are far from insuperable, to the extent that the Working Group felt able to propose as one of the options full legal recognition of the new gender, subject to certain criteria and procedures. As Lord Justice Thorpe observed in the Bellinger case, any “spectral difficulties”, particularly in the field of family law, are both manageable and acceptable if confined to the case of fully achieved and post-operative transsexuals. Nor is the Court convinced by arguments that allowing the applicant to fall under the rules applicable to women, which would also change the date of eligibility for her state pension, would cause any injustice to others in the national insurance and state pension systems as alleged by the Government. No concrete or substantial hardship or detriment to the public interest has indeed been demonstrated as likely to flow from any change to the status of transsexuals and, as regards other possible consequences, the Court considers that society may reasonably be expected to tolerate a certain inconvenience to enable individuals to live in dignity and worth in accordance with the sexual identity chosen by them at great personal cost. 92. In the previous cases from the United Kingdom, this Court has since 1986 emphasised the importance of keeping the need for appropriate legal measures under review having regard to scientific and societal developments (see references at paragraph 73). Most recently in the Sheffield and Horsham case in 1998, it observed that the respondent State had not yet taken any steps to do so despite an increase in the social acceptance of the phenomenon of transsexualism and a growing recognition of the problems with which transsexuals are confronted (cited above, paragraph 60). Even though it found no violation in that case, the need to keep this area under review was expressly re-iterated. Since then, a report has been issued in April 2000 by the Interdepartmental Working Group which set out a survey of the current position of transsexuals in inter alia criminal law, family and employment matters and identified various options for reform. Nothing has effectively been done to further these proposals and in July 2001 the Court of Appeal noted that there were no plans to do so (see paragraphs 52-53). It may be observed that the only legislative reform of note, applying certain non-discrimination provisions to transsexuals, flowed from a decision of the European Court of Justice of 30 April 1996 which held that discrimination based on a change of gender was equivalent to discrimination on grounds of sex (see paragraphs 43-45 above). 93. Having regard to the above considerations, the Court finds that the respondent Government can no longer claim that the matter falls within their margin of appreciation, save as regards the appropriate means of achieving recognition of the right protected under the Convention. Since there are no significant factors of public interest to weigh against the interest of this individual applicant in obtaining legal recognition of her gender re-assignment, it reaches the conclusion that the fair balance that is inherent in the Convention now tilts decisively in favour of the applicant. There has, accordingly, been a failure to respect her right to private life in breach of Article 8 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 12 OF THE CONVENTION 94. The applicant also claimed a violation of Article 12 of the Convention, which provides as follows: “Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.” A. Arguments of the parties 1. The applicant 95. The applicant complained that although she currently enjoyed a full physical relationship with a man, she and her partner could not marry because the law treated her as a man. She argued that the Corbett v. Corbett definition of a person's sex for the purpose of marriage had been shown no longer to be sufficient in the recent case of Bellinger v. Bellinger and that even if a reliance on biological criteria remained acceptable, it was a breach of Article 12 to use only some of those criteria for determining a person's sex and excluding those who failed to fulfil those elements. 2. The Government 96. The Government referred to the Court's previous case-law (the above-cited Rees, Cossey and Sheffield and Horsham judgments ) and maintained that neither Article 12 nor Article 8 of the Convention required a State to permit a transsexual to marry a person of his or her original sex. They also pointed out that the domestic law approach had been recently reviewed and upheld by the Court of Appeal in Bellinger v. Bellinger, the matter now pending before the House of Lords. In their view, if any change in this important or sensitive area were to be made, it should come from the United Kingdom's own courts acting within the margin of appreciation which this Court has always afforded. They also referred to the fact that any change brought the possibility of unwanted consequences, submitting that legal recognition would potentially invalidate existing marriages and leave transsexuals and their partners in same-sex marriages. They emphasised the importance of proper and careful review of any changes in this area and the need for transitional provisions. B. The Court's assessment 97. The Court recalls that in the cases of Rees, Cossey and Sheffield and Horsham the inability of the transsexuals in those cases to marry a person of the sex opposite to their re-assigned gender was not found in breach of Article 12 of the Convention. These findings were based variously on the reasoning that the right to marry referred to traditional marriage between persons of opposite biological sex (the Rees judgment, p. 19, § 49), the view that continued adoption of biological criteria in domestic law for determining a person's sex for the purpose of marriage was encompassed within the power of Contracting States to regulate by national law the exercise of the right to marry and the conclusion that national laws in that respect could not be regarded as restricting or reducing the right of a transsexual to marry in such a way or to such an extent that the very essence of the right was impaired (the Cossey judgment, p. 18, §§ 44-46, the Sheffield and Horsham judgment, p. 2030, §§ 66-67). Reference was also made to the wording of Article 12 as protecting marriage as the basis of the family (Rees, loc. cit .). 98. Reviewing the situation in 2002, the Court observes that Article 12 secures the fundamental right of a man and woman to marry and to found a family. The second aspect is not however a condition of the first and the inability of any couple to conceive or parent a child cannot be regarded as per se removing their right to enjoy the first limb of this provision. 99. The exercise of the right to marry gives rise to social, personal and legal consequences. It is subject to the national laws of the Contracting States but the limitations thereby introduced must not restrict or reduce the right in such a way or to such an extent that the very essence of the right is impaired (see the Rees judgment, p. 19, § 50; the F. v. Switzerland judgment of 18 December 1987, Series A no. 128, § 32). 100. It is true that the first sentence refers in express terms to the right of a man and woman to marry. The Court is not persuaded that at the date of this case it can still be assumed that these terms must refer to a determination of gender by purely biological criteria (as held by Ormrod J. in the case of Corbett v. Corbett, paragraph 21 above). There have been major social changes in the institution of marriage since the adoption of the Convention as well as dramatic changes brought about by developments in medicine and science in the field of transsexuality. The Court has found above, under Article 8 of the Convention, that a test of congruent biological factors can no longer be decisive in denying legal recognition to the change of gender of a post-operative transsexual. There are other important factors – the acceptance of the condition of gender identity disorder by the medical professions and health authorities within Contracting States, the provision of treatment including surgery to assimilate the individual as closely as possible to the gender in which they perceive that they properly belong and the assumption by the transsexual of the social role of the assigned gender. The Court would also note that Article 9 of the recently adopted Charter of Fundamental Rights of the European Union departs, no doubt deliberately, from the wording of Article 12 of the Convention in removing the reference to men and women (see paragraph 58 above). 101. The right under Article 8 to respect for private life does not however subsume all the issues under Article 12, where conditions imposed by national laws are accorded a specific mention. The Court has therefore considered whether the allocation of sex in national law to that registered at birth is a limitation impairing the very essence of the right to marry in this case. In that regard, it finds that it is artificial to assert that post-operative transsexuals have not been deprived of the right to marry as, according to law, they remain able to marry a person of their former opposite sex. The applicant in this case lives as a woman, is in a relationship with a man and would only wish to marry a man. She has no possibility of doing so. In the Court's view, she may therefore claim that the very essence of her right to marry has been infringed. 102. The Court has not identified any other reason which would prevent it from reaching this conclusion. The Government have argued that in this sensitive area eligibility for marriage under national law should be left to the domestic courts within the State's margin of appreciation, adverting to the potential impact on already existing marriages in which a transsexual is a partner. It appears however from the opinions of the majority of the Court of Appeal judgment in Bellinger v. Bellinger that the domestic courts tend to the view that the matter is best handled by the legislature, while the Government have no present intention to introduce legislation (see paragraphs 52-53). 103. It may be noted from the materials submitted by Liberty that though there is widespread acceptance of the marriage of transsexuals, fewer countries permit the marriage of transsexuals in their assigned gender than recognise the change of gender itself. The Court is not persuaded however that this supports an argument for leaving the matter entirely to the Contracting States as being within their margin of appreciation. This would be tantamount to finding that the range of options open to a Contracting State included an effective bar on any exercise of the right to marry. The margin of appreciation cannot extend so far. While it is for the Contracting State to determine inter alia the conditions under which a person claiming legal recognition as a transsexual establishes that gender re-assignment has been properly effected or under which past marriages cease to be valid and the formalities applicable to future marriages (including, for example, the information to be furnished to intended spouses), the Court finds no justification for barring the transsexual from enjoying the right to marry under any circumstances. 104. The Court concludes that there has been a breach of Article 12 of the Convention in the present case. III. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION 105. The applicant also claimed a violation of Article 14 of the Convention, which provides as follows: “The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” 106. The applicant complained that the lack of legal recognition of her changed gender was the cause of numerous discriminatory experiences and prejudices. She referred in particular to the fact that she could not claim her State pension until she was 65 and to the fact that she could not claim a “freedom pass” to give her free travel in London, a privilege which women were allowed to enjoy from the age 60 and men from the age of 65. 107. The Government submitted that no issues arose which were different from those addressed under Article 8 of the Convention and that the complaints failed to disclose any discrimination contrary to the above provision. 108. The Court considers that the lack of legal recognition of the change of gender of a post-operative transsexual lies at the heart of the applicant's complaints under Article 14 of the Convention. These issues have been examined under Article 8 and resulted in the finding of a violation of that provision. In the circumstances, the Court considers that no separate issue arises under Article 14 of the Convention and makes no separate finding. IV. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 109. The applicant claimed a violation of Article 13 of the Convention, which provides as follows: “Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 110. The applicant complained that she had no effective remedy available to her in respect of the matters complained of above. 111. The Government submitted that no arguable breach of any Convention right arose to engage the right to a remedy under Article 13. In any event, since 2 October 2000 when the Human Rights Act 1998 came into force, the Convention rights could be relied on in national courts and the applicant would now have a remedy in a national court for any breach of a Convention right. 112. The Court reiterates that Article 13 of the Convention guarantees the availability at the national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. Its effect is to require the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief (see, amongst other authorities, the Aksoy v. Turkey judgment of 25 September 1996, Reports 1996-VI, p. 2286, § 95). 113. Having found above that there have been violations of Articles 8 and 12 of the Convention, the applicant's complaints in this regard are without doubt arguable for the purposes of Article 13 of the Convention. The case-law of the Convention institutions indicates, however, that Article 13 cannot be interpreted as requiring a remedy against the state of domestic law, as otherwise the Court would be imposing on Contracting States a requirement to incorporate the Convention (see the James and Others v. the United Kingdom judgment of 21 February 1986, Series A no. 98, p. 48, § 86). Insofar therefore as no remedy existed in domestic law prior to 2 October 2000 when the Human Rights Act 1998 took effect, the applicant's complaints fall foul of this principle. Following that date, it would have been possible for the applicant to raise her complaints before the domestic courts, which would have had a range of possible redress available to them. 114. The Court finds in the circumstances no breach of Article 13 of the Convention in the present case. V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 115. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 116. The applicant claimed pecuniary damage of a total of 38,200 pounds sterling (GBP). This represented a sum of GBP 31,200 in respect of the pension which she had been unable to claim at age 60 and GBP 7,000 as the estimated value of the pensioner's bus pass which she had not been eligible to obtain. The applicant also claimed for non-pecuniary damage the sum of GBP 40,000 in respect of distress, anxiety and humiliation. 117. The Government submitted that were the Court to find any breach of the Convention this finding would of itself be sufficient just satisfaction for the purposes of Article 41 of the Convention. 118. The Court recalls that there must be a clear causal connection between the pecuniary damage claimed by the applicant and the violation of the Convention and that this may, in the appropriate case, include compensation in respect of loss of earnings or other sources of income (see, amongst other authorities, the Barberà, Messegué and Jabardo v. Spain judgment of 13 June 1994 (Article 50), Series A no. 285-C, pp. 57-58, §§ 16-20; the Cakıcı v. Turkey judgment of 8 July 1999, Reports 1999-IV, § 127). 119. The Court observes that the applicant was unable to retire at age 60 as other female employees were entitled and to obtain a state pension or to claim a bus pass for free travel. The degree of financial detriment suffered as a result, if any, is not clear-cut however as the applicant, though perhaps not by choice, continued to work and to enjoy a salary as a result. While it has adverted above to the difficulties and stresses of the applicant's position as a post-operative transsexual, it would note that over the period until 1998 similar issues were found to fall within the United Kingdom's margin of appreciation and that no breach arose. 120. The Court has found that the situation, as it has evolved, no longer falls within the United Kingdom's margin of appreciation. It will be for the United Kingdom Government in due course to implement such measures as it considers appropriate to fulfil its obligations to secure the applicant's, and other transsexuals', right to respect for private life and right to marry in compliance with this judgment. While there is no doubt that the applicant has suffered distress and anxiety in the past, it is the lack of legal recognition of the gender re-assignment of post-operative transsexuals which lies at the heart of the complaints in this application, the latest in a succession of cases by other applicants raising the same issues. The Court does not find it appropriate therefore to make an award to this particular applicant. The finding of violation, with the consequences which will ensue for the future, may in these circumstances be regarded as constituting just satisfaction. B. Costs and expenses 121. The applicant claims for legal costs and expenses GBP 17,000 for solicitors' fees and GBP 24,550 for the fees of senior and junior counsel. Costs of travel to the Court hearing, together with accommodation and other related expenses were claimed in the sum of GBP 2,822. This made a total of GBP 44,372. 122. The Government submitted that the sum appeared excessive in comparison to other cases from the United Kingdom and in particular as regarded the amount of GBP 39,000 claimed in respect of the relatively recent period during which the applicant's current solicitors have been instructed which would only relate to the consolidated observations and the hearing before the Court. 123. The Court finds that the sums claimed by the applicant for legal costs and expenses, for which no detail has been provided by way of hours of work and fee rates, are high having regard to the level of complexity of, and procedures adopted in, this case. Having regard to the sums granted in other United Kingdom cases and taking into account the sums of legal aid paid by the Council of Europe, the Court awards for this head 39,000 euros (EUR), together with any value-added tax that may be payable. The award is made in euros, to be converted into pounds sterling at the date of settlement, as the Court finds it appropriate that henceforth all just satisfaction awards made under Article 41 of the Convention should in principle be based on the euro as the reference currency. C. Default interest 124. As the award is expressed in euros to be converted into the national currency at the date of settlement, the Court considers that the default interest rate should also reflect the choice of the euro as the reference currency. It considers it appropriate to take as the general rule that the rate of the default interest to be paid on outstanding amounts expressed in euro should be based on the marginal lending rate of the European Central Bank to which should be added three percentage points. | The Court held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention in the present case, owing to a clear and continuing international trend towards increased social acceptance of transsexuals and towards legal recognition of the new sexual identity of post-operative transsexuals. “Since there [we]re no significant factors of public interest to weigh against the interest of this individual applicant in obtaining legal recognition of her gender re-assignment, the Court reache[d] the conclusion that the notion of fair balance inherent in the Convention now tilt[ed] decisively in favour of the applicant” (§ 93 of the judgment). The Court also held that there had been a violation of Article 12 (right to marry and found a family) of the Convention in the applicant’s case. It was, in particular, “not persuaded that it [could] still be assumed that [the terms of Article 12] must refer to a determination of gender by purely biological criteria” (§ 100). The Court added that it was for the State to determine the conditions and formalities of transsexual marriages but that it “f[ound] no justification for barring the transsexual from enjoying the right to marry under any circumstances” (§ 103). |
490 | Dismissal on grounds of gender | II. RELEVANT DOMESTIC LAW AND INTERNATIONAL MATERIAL A. The Constitution 26. The relevant provisions of the Constitution of Turkey, as in force at the material time, read as follows: Article 10 - Equality before the law “Everyone is equal before the law without distinction as to language, race, colour, sex, political opinion, philosophical belief, religion and sect, or any such grounds. Men and women have equal rights. The State has the obligation to ensure that this equality exists in practice. No privilege shall be granted to any individual, family, group or class. State organs and administrative authorities are obliged to act in compliance with the principle of equality before the law in all proceedings.” Article 70 - Entry into public service “Every Turk has the right to enter public service. No criteria other than the qualifications for the office concerned shall be taken into consideration for recruitment into public service.” B. Supreme Administrative Court Act (Law no. 2575) 27. According to section 38 of the Supreme Administrative Court Act (Law no. 2575), the General Assembly of Administrative Proceedings Divisions of the Supreme Administrative Court has the authority to review administrative courts ’ decisions confirming their previous judgments, following decisions by the Supreme Administrative Court Divisions quashing those previous judgments. 28. Section 39 of Law no. 2575 stipulates that if a conflict or a dispute arises between the decisions of Divisions and the General Assembly of Administrative Proceedings or Tax Proceedings Divisions of the Supreme Administrative Court, rendered either by the same organ or by different organs, the Assembly on the Unification of Conflicting Case-Law must examine the matter and decide on the harmonisation of the conflicting judgments upon referral by the President of the Supreme Administrative Court and receipt of the opinion of the principal public prosecutor at the Supreme Administrative Court. C. The revised European Social Charter 29. Article 20 of the revised European Social Charter, ratified by Turkey in 2007, provides as follows: Article 20 - The right to equal opportunities and equal treatment in matters of employment and occupation without discrimination on the grounds of sex “With a view to ensuring the effective exercise of the right to equal opportunities and equal treatment in matters of employment and occupation without discrimination on the grounds of sex, the Parties undertake to recognise that right and to take appropriate measures to ensure or promote its application in the following fields: a. access to employment, protection against dismissal and occupational reintegration; b. vocational guidance, training, retraining and rehabilitation; c. terms of employment and working conditions, including remuneration; d. career development, including promotion.” D. The United Nations Convention on the Elimination of All Forms of Discrimination against Women 30. Article 11 § 1 of the UN Convention on the Elimination of All Forms of Discrimination against Women, ratified by Turkey in 1985, provides as follows: “1. States Parties shall take all appropriate measures to eliminate discrimination against women in the field of employment in order to ensure, on a basis of equality of men and women, the same rights, in particular: a. the right to work as an inalienable right of all human beings; b. the right to the same employment opportunities, including the application of the same criteria for selection in matters of employment; c. the right to free choice of profession and employment, the right to promotion, job security and all benefits and conditions of service and the right to receive vocational training and retraining, including apprenticeships, advanced vocational training and recurrent training; d. the right to equal remuneration, including benefits, and to equal treatment in respect of work of equal value, as well as equality of treatment in the evaluation of the quality of work; e. the right to social security, particularly in cases of retirement, unemployment, sickness, invalidity and old age and other incapacity to work, as well as the right to paid leave; f. the right to protection of health and to safety in working conditions, including the safeguarding of the function of reproduction.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION IN CONJUNCTION WITH ARTICLE 8 OF THE CONVENTION 31. The applicant complained under Article 14 of the Convention that the administrative authorities ’ decisions and the domestic courts ’ judgments constituted discrimination against her on grounds of sex. 32. The Government contested those allegations. 33. The Court, as the master of the characterisation to be given in law to the facts of any case before it (see Akdeniz v. Turkey, no. 25165/94, § 88, 31 May 2005; Zorica Jovanović v. Serbia, no. 21794/08, § 43, 26 March 2013; and, most recently, İhsan Ay v. Turkey, no. 34288/04, § 22, 21 January 2014 ) and having regard to the circumstances of the present case, considers that this complaint falls to be examined under Article 14 of the Convention, taken in conjunction with Article 8 of the Convention. Articles 8 and 14 of the Convention read as follows: Article 8 “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” Article 14 “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” A. Admissibility 1. Compliance with Article 35 § 1 of the Convention 34. The Government submitted that the applicant had failed to comply with Article 35 of the Convention as she had failed to lodge an action with the administrative or civil courts requesting compensation for the alleged damage caused to her by the conduct of the administrative authorities or civil servants. Alternatively, they submitted that the applicant had failed to lodge her application with the Court within the six-month time-limit. 35. The applicant maintained that she had exhausted the available domestic remedies. She noted that she had even requested rectification of the Supreme Administrative Court ’ s decisions, even though that was not obligatory under Turkish law. 36. As regards the Government ’ s objection that the applicant had failed to exhaust domestic remedies, the Court notes that her claims concern her inability to take up her duties and, subsequently, her dismissal from public employment. It observes in this connection that she brought and pursued an action for the annulment of the administrative authorities ’ decisions before the administrative courts and asked for her financial loss to be compensated. The Court therefore considers that the applicant brought her grievances under the Convention to the attention of the appropriate judicial authorities in domestic law. Moreover, the Government have not demonstrated how an action for compensation before administrative or civil courts would provide redress for the applicant ’ s grievances. Nor did they provide any example in which an action for compensation before such courts had been successful in situations similar to that of the applicant. The Court accordingly rejects the Government ’ s objection under this head. 37. As to the Government ’ s objection regarding the six-month rule, the Court observes that the final domestic decision was rendered on 17 September 2008 and the application was lodged on 1 December 2008. The Court therefore considers that the present application was introduced in conformity with the six-month time-limit and rejects the Government ’ s objection. 2. Applicability of Article 14 of the Convention taken in conjunction with Article 8 38. The Government submitted that neither Article 8 nor Article 14 was applicable in the instant case as it concerned a right which was not secured by the Convention, namely the right to recruitment as a public servant. Referring to the judgments of Glasenapp v. Germany (28 August 1986, Series A no. 104), Kosiek v. Germany (28 August 1986, Series A no. 105) and Thlimmenos v. Greece ([GC], no. 34369/97, ECHR 2000 ‑ IV), the Government maintained that the refusal to appoint a person as a public servant could not as such provide the basis for a complaint under the Convention. They also maintained that the applicant would be able to obtain public-service employment as long as she fulfilled the requirements of another post. 39. The applicant maintained, in reply, that the domestic authorities had accepted her candidature for the post of security officer in the Batman branch of TEDAŞ and had appointed her to the post even though it was known to them that she was a woman. Besides, she had worked as a security officer in TEDAŞ between 11 July 2001 and 17 March 2004 and had subsequently been dismissed from her post. She lastly alleged that she had lost the opportunity to take up other posts in the public sector and to sit a similar examination, as a result of the administrative and judicial decisions. 40. The Court reiterates that Article 14 of the Convention protects individuals in similar situations from being treated differently without justification in the enjoyment of their Convention rights and freedoms. This provision has no independent existence, since it has effect solely in relation to the rights and freedoms safeguarded by the other substantive provisions of the Convention and its Protocols. However, the application of Article 14 does not presuppose a breach of one or more of such provisions and to this extent it is autonomous. For Article 14 to become applicable, it suffices that the facts of a case fall within the ambit of another substantive provision of the Convention or its Protocols (see Thlimmenos, cited above, § 40, and Sidabras and Džiautas v. Lithuania, nos. 55480/00 and 59330/00, § 38, ECHR 2004 ‑ VIII). The Court should therefore establish whether the facts of the case fall within the ambit of Article 8 of the Convention, in order to rule on the applicability of Article 14. 41. In this connection, the Court reiterates that the right of recruitment to the civil service was deliberately omitted from the Convention. Consequently, the refusal to appoint a person as a civil servant cannot as such provide the basis for a complaint under the Convention (see Vogt v. Germany, 26 September 1995, § 43, Series A no. 323, and Otto v. Germany (dec.), no. 27574/02, 24 November 2005). 42. The Court considers, however, that the issue to be examined in the present case is not whether the applicant had a right to be recruited to the civil service. The applicant did not complain about the refusal of the domestic authorities to appoint her as a civil servant as such. She, for example, did not complain about her failure to become a civil servant on the ground that she did not possess the necessary qualifications required of anyone seeking such a post. Her submissions under this head concerned the difference in treatment to which she had been subjected on the ground of her sex (compare Glasenapp v. Germany, 28 August 1986, § 52, Series A no. 104; and Kosiek v. Germany, 28 August 1986, § 38, Series A no. 105). Besides, the applicant succeeded in the examination in order to become a public servant and was notified that she would take up the post of security officer in the Batman branch of TEDAŞ by the State Personnel Department attached to the Prime Minister ’ s office, before the Batman branch of TEDAŞ refused to recruit her (see paragraph 5 above). What is more, subsequent to the judgment of the Ankara Administrative Court of 27 February 2001, she was given the post of security officer on a contractual basis on 11 July 2001 and worked in the Batman and Elazığ branches of TEDAŞ until 17 March 2004 (see paragraphs 11 and 16 above). In these circumstances, in the Court ’ s view, the applicant should be regarded as an official who was appointed to the civil service and subsequently dismissed. 43. The Court has consistently held that a person who has been appointed as a civil servant can complain of being dismissed if that dismissal violates one of his or her rights under the Convention, including Article 8. Civil servants do not fall outside the scope of the Convention (see Glasenapp, cited above, § 49; Kosiek, cited above, § 35; Vogt, cited above, § 43; and Wille v. Liechtenstein [GC], no. 28396/95, § 41, ECHR 1999 ‑ VII). With regard to Article 8, the Court has already held in a number of cases that the dismissal from office of a civil servant constituted an interference with the right to private life (see Özpınar v. Turkey, no. 20999/04, §§ 43-48, 19 October 2010; and Oleksandr Volkov v. Ukraine, no. 21722/11, §§ 165-167, 9 January 2013). 44. Turning back to the circumstances of the present case, the Court reiterates that the administrative authorities dismissed the applicant from her post in 2004 on the ground of her sex. In the Court ’ s view, the concept of “private life” extends to aspects relating to personal identity and a person ’ s sex is an inherent part of his or her identity. Thus, a measure as drastic as a dismissal from a post on the sole ground of sex has adverse effects on a person ’ s identity, self-perception and self-respect and, as a result, his or her private life. The Court therefore considers that the applicant ’ s dismissal on the sole ground of her sex constituted an interference with her right to respect for her private life (see, mutatis mutandis, Smith and Grady v. the United Kingdom, nos. 33985/96 and 33986/96, § 71, ECHR 1999 ‑ VI). Besides, the applicant ’ s dismissal had an impact on her “inner circle” as the loss of her job must have had tangible consequences for the material well-being of her and her family (see Oleksandr Volkov, cited above, § 166). The applicant must also have suffered distress and anxiety on account of the loss of her post. What is more, the applicant ’ s dismissal affected a wide range of her relationships with other people, including those of a professional nature and her ability to practise a profession which corresponded to her qualifications (see Sidabras and Džiautas, cited above, § 48; Oleksandr Volkov, cited above, § 166; and İhsan Ay, cited above, § 31). Thus, the Court considers that Article 8 is applicable to the applicant ’ s complaint. 45. Finally, the applicant alleged that she had lost the opportunity to take up other positions in the public sector and to sit a similar examination, as a result of the administrative and judicial decisions, whereas the Government denied the veracity of this claim, both parties failing to substantiate their arguments. The Court does not consider it necessary to rule on this claim. In the Court ’ s view, even assuming that the applicant was able to take up another job in the public sector, as claimed by the Government, this would not suffice to erase the alleged detrimental effect of her dismissal on grounds of sex and the ensuing judicial proceedings on her private life (see, mutatis mutandis, I.B. v. Greece, no. 552/10, § 72, ECHR 2013). 46. In the light of the foregoing, the Court considers that Article 14 of the Convention is applicable in the circumstances of this case, taken in conjunction with Article 8, and rejects the Government ’ s objection. 3. Conclusion 47. The Court notes that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 48. The Government maintained that there had been an objective and reasonable justification for the refusal of the domestic authorities to appoint the applicant to the post of security officer. They noted that the post in question had been reserved for male candidates in view of the nature of the service and the need to recruit male personnel. Referring to the considerations of the human resources department of TEDAŞ (see paragraph 7 above) the Government contended that all female candidates had been refused appointment to the post in question. 49. The applicant submitted in reply that she had worked as a security officer in the Batman and Elazığ branches of TEDAŞ subsequent to the Ankara Administrative Court ’ s judgment. Besides, the administrative courts had ruled in favour of at least two other women, Y.P. and R.B., whose appointment to the posts of security officer in the Gaziantep and Batman branches of TEDAŞ had been previously refused. She considered that the Government ’ s observations were not relevant in the circumstances of the case. 50. The Court reiterates that in order for an issue to arise under Article 14 there must be a difference in the treatment of persons in comparable situations. Such a difference of treatment is discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. The notion of discrimination within the meaning of Article 14 also includes cases where a person or group is treated, without proper justification, less favourably than another, even though the more favourable treatment is not called for by the Convention (see Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May 1985, § 82, Series A no. 94 and Vallianatos and Others v. Greece [GC], nos. 29381/09 and 32684/09, § 76, ECHR 2013). 51. The Contracting State enjoys a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment (see Ünal Tekeli v. Turkey, no. 29865/96, § 52, ECHR 2004 ‑ X (extracts), and Vallianatos and Others v. Greece [GC], cited above, § 76, ECHR 2013, and the cases cited therein). The scope of the margin of appreciation will vary according to the circumstances, the subject-matter and the background to the case (see Ünal Tekeli, cited above, § 52), but the final decision as to observance of the Convention ’ s requirements rests with the Court (see Kafkaris v. Cyprus [GC], no. 21906/04, § 161, ECHR 2008). Where a difference of treatment is based on sex, the margin of appreciation afforded to the State is narrow and in such situations the principle of proportionality does not merely require that the measure chosen should in general be suited to the fulfilment of the aim pursued, but it must also be shown that it was necessary in the circumstances. The Court further reiterates that the advancement of gender equality is today a major goal in the member States of the Council of Europe and very weighty reasons would have to be put forward before such a difference of treatment could be regarded as compatible with the Convention (see Konstantin Markin v. Russia [GC], no. 30078/06, § 127, ECHR 2012 (extracts) ). 52. In the present case, the Court observes at the outset that both the administrative authorities and the Twelfth Division of the Supreme Administrative Court considered that the post of security officer in the Batman branch of TEDAŞ was reserved for men and that therefore the applicant, being a woman, was not suitable for the post. In the Court ’ s view, this is a clear “difference in treatment”, on grounds of sex, between persons in an analogous situation. 53. As regards the question of whether the difference in treatment between women and men was objectively and reasonably justified under Article 14, the Court takes note of the Government ’ s submissions concerning the nature of the service carried out by security officers in the Batman branch of TEDAŞ and the working conditions therein (see paragraph 48 above). These explanations were also submitted by the human resources department of the same branch to the Ministry of Energy and Natural Resources (see paragraph 7 above). The Court observes in this connection that the main consideration in these explanations is that the activities of security officers carried certain risks and responsibilities as the security officers had to work at nights in rural areas and since they had to use firearms and physical force in case of an attack on the premises they were guarding. It appears that the administrative authorities considered that women were unable to face those risks and assume such responsibilities. There is, however, no explanation in the submissions of the administrative authorities or the Government as to this purported inability. What is more, the decisions of the Twelfth Division of the Supreme Administrative Court did not contain any assessment of those considerations on the part of the administration. Nor did the Twelfth Division give any other reasoning as to why only men were suitable for the post in question. 54. The Court is aware that there may be legitimate requirements for certain occupational activities depending on their nature or the context in which they are carried out. However, in the instant case, neither the administrative authorities nor the Twelfth Division of the Supreme Administrative Court substantiated the grounds for the requirement that only male staff be employed in the post of security officer in the Batman branch of TEDAŞ. The absence of such reasoning in the Twelfth Division ’ s decision is particularly noteworthy given that only three months prior to that decision, the Supreme Administrative Court ’ s General Assembly of Administrative Proceedings Divisions had held, in the case brought by R.B., that there had been no obstacle to the appointment of a woman to the post of security officer in the Batman branch of TEDAŞ. The Court, for its part, also takes the view that the mere fact that security officers in Batman had to work on night shifts and in rural areas and might be required to use firearms and physical force under certain conditions could not in itself justify the difference in treatment between men and women. 55. Moreover, the applicant worked in the Batman and Elazığ branches of TEDAŞ between 11 July 2001 and 17 March 2004 as a security officer. The Court notes that the reason for her subsequent dismissal from the post of security officer was not her inability to assume the risks or responsibilities of her position but the judicial decisions. There is nothing in the case file to indicate that the applicant failed to fulfil her duties as a security officer in TEDAŞ because of her sex. 56. In sum, it has not been shown that the difference in treatment pursued a legitimate aim. The Court concludes that this difference in treatment, of which the applicant was a victim, amounted to discrimination on grounds of sex. There has accordingly been a violation of Article 14 of the Convention taken in conjunction with Article 8. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 57. The applicant complained under Article 6 of the Convention that the proceedings that she had brought before the administrative courts had not been concluded within a reasonable time. She further maintained under the same head that the domestic courts had delivered contradictory decisions in identical cases and that the Twelfth Division of the Supreme Administrative Court had failed to examine her submissions regarding the decision rendered by the General Assembly of Administrative Proceedings Divisions with regard to R.B. 58. The Government contested those arguments. 59. The Court considers that these complaints should be examined from the standpoint of Article 6 § 1 of the Convention, which provides, in so far as relevant, as follows: “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing within a reasonable time by [a] ... tribunal ...” A. Admissibility 1. Applicability of Article 6 of the Convention 60. The Government submitted that Article 6 was not applicable in the instant case as the administrative decisions concerning the applicant fell within the sphere of public law. 61. The applicant did not make any submission on this issue. 62. The Court notes at the outset that it will examine the Government ’ s objection under this head in the light of the principles set out in the judgment Vilho Eskelinen and Others v. Finland [GC ] (no. 63235/00, §§ 40-64, ECHR 2007 ‑ II). In this connection, the Court observes that it is not disputed that the applicant had a right, according to the domestic law, to apply for the post of security officer and that there was a genuine and serious “dispute” (“ contestation ” in the French text) within the meaning of Article 6 § 1. The Court further observes that the applicant clearly had access to a court in order to challenge the lawfulness of her dismissal from the post of security officer. As a result, the applicant had the right to challenge before the domestic courts the administrative decisions. The domestic courts examined the merits of the applicant ’ s appeals and in so doing they determined the dispute over her rights. The Court therefore finds that Article 6 of the Convention is applicable to the present case and rejects the Government ’ s objection (see, mutatis mutandis, Vilho Eskelinen and Others, cited above, §§ 61-62; Lombardi Vallauri v. Italy, no. 39128/05, § 62, 20 October 2009; Eero Penttinen v. Finland (dec.), no. 9125/07, 5 January 2010; and Juričić v. Croatia, no. 58222/09, §§ 53-56, 26 July 2011 ). 2. Compliance with Article 35 § 1 of the Convention 63. The Court notes that a new domestic remedy was established in Turkey after the application of the pilot judgment procedure in the case of Ümmühan Kaplan v. Turkey (no. 24240/07, 20 March 2012). The Court recalls that in its decision in the case of Turgut and Others v. Turkey (no. 4860/09, 26 March 2013), it declared a new application inadmissible on the ground that the applicants had failed to exhaust domestic remedies, as a new domestic remedy could have been envisaged. In so doing, the Court in particular considered that this new remedy was, a priori, accessible and capable of offering a reasonable prospect of redress for complaints concerning the length of proceedings. 64. The Court further points out that, in its decision in the case of Ümmühan Kaplan (cited above, § 77), it stressed that it could pursue the examination of applications of this type of which notice had already been given to the Government. It notes that in the present case the Government did not raise an objection in respect of the new domestic remedy. In the light of the above, the Court decides to pursue the examination of the present application (see Rifat Demir v. Turkey, no. 24267/07, §§ 34 ‑ 36, 4 June 2013). 3. Conclusion 65. The Court notes that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. As regards the length of the proceedings 66. The Government contended that the length of the proceedings could not be considered unreasonable in view of the complexity of the case and the conduct of the parties. 67. The applicant reiterated her claim. 68. The Court observes that the period to be taken into consideration began on 18 September 2000 and ended on 17 September 2008. It thus lasted eight years for two levels of jurisdiction and the case was pending before the Supreme Administrative Court for approximately seven years and three months out of this total period. 69. The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues that are similar to the one in the present application (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII, and İhsan Ay, cited above, § 48 ). Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or convincing argument capable of persuading it to reach a different conclusion in the present circumstances. Having regard to its case-law on the subject, the Court considers that the length of the proceedings was excessive and failed to meet the “reasonable time” requirement. There has accordingly been a breach of Article 6 § 1 of the Convention. 2. As regards the fairness of the proceedings 70. The Government maintained that the applicant had been able to submit her arguments to the domestic courts and that all decisions taken in the proceedings had contained extensive reasoning. They contended that there was nothing in the case file to show that the proceedings brought by the applicant had been unfair. 71. The applicant maintained, in reply, that the Twelfth Division of the Supreme Administrative Court had failed to take into consideration the decision rendered by the Supreme Administrative Court ’ s General Assembly of Administrative Proceedings Divisions in favour of R.B. and that, as a result, the highest court had given contradictory decisions in respect of two persons in the same situation. 72. The Court reiterates at the outset that conflicting decisions in similar cases heard in the same court which, in addition, is the court of last instance in the matter may, in the absence of a mechanism which ensures consistency, breach the principle of fair trial and thereby undermine public confidence in the judiciary, such confidence being one of the essential components of a State based on the rule of law (see Balažoski v. the former Yugoslav Republic of Macedonia, no. 45117/08, § 30, 25 April 2013, and the cases cited therein). In the Iordan Iordanov and Others case, the Court identified the issues that needed to be assessed when analysing whether conflicting decisions in similar cases stemming from the same court violated the principle of legal certainty under Article 6 of the Convention: (1) the existence of “profound and long-lasting divergences” in the relevant case-law; (2) whether the domestic law provided for a mechanism capable of removing the judicial inconsistency; and (3) whether this mechanism was applied and, if so, what its effects were (see Iordan Iordanov and Others v. Bulgaria, no. 23530/02, § 49, 2 July 2009). Consequently, the Contracting States had an obligation to organise their legal system so as to avoid the adoption of discordant judgments (see Nejdet Şahin and Perihan Şahin v. Turkey [GC], no. 13279/05, § 55, 20 October 2011). 73. In the present case, the Court notes that, in support of her claims under this head, the applicant submitted only one decision rendered by the Supreme Administrative Court ’ s General Assembly of Administrative Proceedings Divisions in favour of R.B., who had also been refused a post of security officer in the Batman branch of TEDAŞ on grounds of sex. While it is true that the Twelfth Division of the Supreme Administrative Court and the General Assembly of Administrative Proceedings Divisions reached different conclusions in seemingly identical cases, it cannot be said that there were “profound and long-standing differences” in the case-law of the Supreme Administrative Court. The Court further notes that, although it is not directly accessible to plaintiffs, according to Article 39 of the Supreme Administrative Court Act (Law no. 2575), in cases where there is inconsistency between a decision of a division of the Supreme Administrative Court and the General Assembly of Administrative Proceedings Divisions, the Assembly for the Unification of Conflicting Case-Law renders a legally binding decision settling the conflict of case-law. Taking these aspects into consideration, the Court finds no reason to further examine whether the aforementioned provision for overcoming the judicial inconsistencies could have been applied in the instant case and to what effect (see, mutatis mutandis, Arişanu v. Romania (dec.), no. 17436/09, 28 January 2014). In these circumstances and bearing in mind that it is not the Court ’ s function to compare different decisions of national courts, even if given in similar proceedings, the Court considers that the difference of interpretation between the Twelfth Division and the General Assembly of Administrative Proceedings Divisions does not, in itself, constitute a violation of Article 6 of the Convention. 74. The Court, however, reiterates that, according to its established case-law reflecting a principle linked to the proper administration of justice, judgments of courts and tribunals should adequately state the reasons on which they are based. The extent to which this duty to give reasons applies may vary according to the nature of the decision and must be determined in the light of the circumstances of the case. Although Article 6 § 1 obliges courts to give reasons for their decisions, it cannot be understood as requiring a detailed answer to every argument. Thus, in dismissing an appeal, an appellate court may, in principle, simply endorse the reasons for the lower court ’ s decision (see García Ruiz v. Spain [GC], no. 30544/96, § 26, ECHR 1999 ‑ I; Hirvisaari v. Finland, no. 49684/99, § 30, 27 September 2001; and Stepanyan v. Armenia, no. 45081/04, § 35, 27 October 2009 ). 75. The Court notes that it is not in dispute between the parties that, in her appeal, the applicant drew the attention of the Twelfth Division of the Supreme Administrative Court to the case brought by R.B. (see paragraph 21 above). Moreover, in its decision dated 12 February 2008, the Twelfth Division cited the text of the decision rendered by the General Assembly of Administrative Proceedings Divisions on 6 December 2007 with regard to R.B. (see paragraph 23 above). The Twelfth Division of the Supreme Administrative Court, however, did not consider the applicant ’ s submissions or the decision of 6 December 2007 and simply endorsed the Ankara Administrative Court ’ s judgment. Although such a technique of reasoning by an appellate court is, in principle, acceptable, in the circumstances of the present case, it failed to satisfy the requirements of a fair hearing. Following the administrative court ’ s judgment and prior to the examination of the applicant ’ s appeal, the General Assembly of Administrative Proceedings Divisions had rendered a decision which was in conflict with the administrative court ’ s judgment. In the Court ’ s opinion, under those circumstances, the applicant ’ s submissions regarding the case of R.B. required an adequate response by the Twelfth Division. In addition, the applicant ’ s request for rectification of the decision containing an explicit reference to the decision of 6 December 2007 was also dismissed by the Twelfth Division without any reasoning (see paragraph 25 above). The Court therefore considers that the Twelfth Division of the Supreme Administrative Court failed to fulfil its duty to provide adequate reasoning for its decisions. There has accordingly been a violation of Article 6 § 1 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 76. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 77. The applicant claimed 200,000 euros (EUR) and EUR 50,000 in respect of pecuniary and non-pecuniary damage, respectively. 78. The Government contested these claims, submitting that the requested amounts were unsubstantiated and excessive. 79. The Court observes that the applicant did not submit any relevant documents to substantiate her claim for pecuniary damage. It therefore rejects this claim. The Court, however, finds that she must have suffered pain and distress which cannot be compensated for solely by the Court ’ s finding of a violation. Having regard to the nature of the violations found, the Court finds it appropriate to award her EUR 10,000 in respect of non-pecuniary damage. B. Costs and expenses 80. The applicant also claimed EUR 5,000 for the costs and expenses incurred before the domestic courts and EUR 7,500 for those incurred before the Court, without submitting any documentary evidence in support of her claims. 81. The Government contested the applicant ’ s claims. 82. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, the applicant has not demonstrated that she actually incurred the costs claimed. In particular, she has failed to submit documentary evidence, such as bills, receipts, or a breakdown of the hours spent by her lawyer on the case. Accordingly, the Court makes no award under this head. C. Default interest 83. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 14 (prohibition of discrimination) in conjunction with Article 8 (right for respect to private and family life) of the Convention. In the Court’s opinion, the mere fact that security officers had to work on night shifts and in rural areas and had to use firearms and physical force under certain conditions had not in itself justified any difference in treatment between men and women. Moreover, the reason for the applicant’s dismissal had not been her inability to assume such risks or responsibilities, there having been nothing to indicate that she had failed to fulfil her duties, but the decisions of Turkish administrative courts. The Court also considered that the administrative courts had not substantiated the grounds for the requirement that only male staff could be employed as security officers in the branch of the State-run electricity company. In this case the Court also held that there had been a violation of article 6 § 1 (right to a fair trial within a reasonable time) of the Convention. |
96 | Withdrawal of parental authority, placement of children, and disabled parents’ access rights to their children | II. RELEVANT DOMESTIC LAW A. Constitution of Ukraine 29. The relevant provisions of the Constitution of Ukraine read as follows: Article 32 “No one shall be subject to interference in his or her personal and family life, except in cases envisaged by the Constitution of Ukraine...” Article 51 “...The family, childhood, motherhood and fatherhood are under the protection of the State.” B. Family Code of Ukraine of 10 January 2002 30. The relevant provisions of the Family Code of Ukraine read as follows: Article 170. Removal of the Child from the Parents without Depriving them of Parental Rights “1. The court may decide to remove the child from both parents or one of them without depriving them of parental rights, in cases referred to in Article 164, paragraph 1, subparagraphs 2 -5, as well as in other situations if leaving the child with them is dangerous to his or her life, health and moral education. In such a case, the child shall be given to the other parent, grandmother, grandfather, other relatives upon their request or to the Tutelage Board. 2. In exceptional situations, when the child’s life or health is seriously endangered, the Tutelage Board or the prosecutor may order the immediate removal of the child from his or her parents. In such a case, the Tutelage Board shall inform the prosecutor without delay and within seven days of the date of the decision shall lodge a claim with a court for deprivation of the parental rights of one or both parents or for removal of the child from his or her mother or father without depriving them of parental rights. The same claim can be lodged by the prosecutor. 3. Whenever the circumstances which have hampered the proper upbringing of the child by his or her parents disappear, the court, upon the parents’ request, may order the return of the child” C. Law of Ukraine “On Protection of Childhood” of 26 April 2001 31. The relevant provisions of the Law read as follows: Section 11. A child and a family “(...) Each child has the right to live in a family together with parents or in a family of one of the parents and in their care” Section 12. Rights, obligations and responsibility of parents with respect to bringing up and development of a child “to be brought up in a family is a fundamental principle for development of a child” The State shall provide parents... with support in fulfilment of their obligations on bringing up children.., shall protect rights of a family” Section 14. Separation of a child and family “Children and parents shall not be separated against their will, except for cases when such a separation is necessary in the best interests of a child and is provided for by a legally valid court judgment” D. Ukrainian Parliament Commissioner for Human Rights (Ombudsman) 32. In her First Annual Report the Commissioner for Human Rights (2002) mentioned as follows: (...) The average social pension for a disabled person... is 41 Ukrainian hryvnas (UAH) [4], which is one-fifteenth of the amount allocated for a child who attends boarding school (UAH 400-700 per month)” III. RELEVANT INTERNATIONAL INSTRUMENTS A. The United Nations Convention on the Rights of the Child 33. In the Preamble to the Convention it is mentioned that a child, for the full and harmonious development of his or her personality, should grow up in a family environment. According to Article 9 of the Convention, States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such a separation is necessary in the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents. In such a case all interested parties shall be given an opportunity to participate in the proceedings and make their views known. B. Committee on the Rights of the Child 34. In its Concluding Observations, adopted on 9 October 2002 upon consideration of the second periodic report of Ukraine, the Committee mentioned as follows: “(...) the Committee remains concerned about the low level of resources in general for social services, health and education having a negative impact on the quality and accessibility of services, especially affecting families with children living in poverty; (...) The Committee is concerned that the principles of ... the right to have his/ her best interest as a primary consideration ... (is) not fully reflected in the State party’s legislation, policies and programmes at national and local levels. (...) The Committee expresses its serious concern at the high increase in number of children left without parental care and regrets that its previous recommendations, to the State party, to develop a comprehensive strategy to assist vulnerable families, has not been followed”. C. Council of Europe 35. The basic principles, listed in the annex to Recommendation Rec (2005)5 of the Committee of Ministers on the rights of children living in residential institutions, adopted on 16 March 2005, include, among others: « (...) The family is the natural environment for the growth and well-being of the child and the parents have the primary responsibility for the upbringing and development of the child; – preventive measures of support for children and families in accordance with their special needs should be provided as far as possible; – the placement of a child should remain the exception and have as the primary objective the best interests of the child (...); – the decision taken about the placement of a child and the placement itself should not be subject to discrimination on the basis of ... disability ...or any other status of ... his or her parents (...).» 36. According to the Recommendation Rec(2006)19 on policy to support positive parenting, adopted on 13 December 2006, policies and measures in the field of support for parenting should take into account the importance of a sufficient standard of living to engage in positive parenting. Governments should also ensure that children and parents have access to an appropriate level and diversity of resources (material, psychological, social and cultural). In the best interests of the child, the rights of parents, such as entitlement to appropriate support from public authorities in fulfilling their parental functions, must also be given prominence. Particular attention should be paid to difficult social and economic circumstances, which require more specific support. It is also essential to supplement general policies with a more targeted approach. THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 37. The applicants complained that the court’s judgment of 2 December 2004 infringed their right to respect for their family life as provided in Article 8 of the Convention, which reads as follows: “1. Everyone has the right to respect for his ... family life ... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Admissibility 38. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. Parties’ submissions a. The applicants 39. The applicants accepted that their living conditions were very basic. They did not, however, consider that the conditions were so bad as to endanger the children’s life or health and render necessary their removal from home. In particular, there was no evidence that the children suffered from any diseases associated with malnutrition or dirtiness. As concerns O.S.’s and K.S.’s registration at the health centre, that registration was pursued by the applicants upon the doctors’ advice as the best opportunity for the children to get free vouchers in summer camps. 40. The applicants did not deny that they received some financial and other support from the State, but submitted that it was grossly insufficient to improve their situation. Furthermore, their requests to the authorities for a gas supply to their flat, which would enable them to have gas heating and hot water and therefore to create normal sanitary conditions, remained to no avail. In their opinion the authorities concentrated only on drafting documents concerning the inadequacy of their conditions, instead of providing them with the necessary counselling as to possible solutions to their situation. The applicants further accepted that it might have been beneficial for the children to be placed in boarding schools, but submitted that this could be done by means other than their removal from the parents’ care, which made it practically impossible for the applicants to spend time with the children outside the institutions, especially regard being had to the placement of children in various institutions. In their opinion, there was no danger in allowing the children to visit their parents at home for short periods of time. 41. The applicants also noted that in so far as O.S.’s wandering was concerned, they should not have been blamed for it, as they had attempted to discipline their son. However, it was often from school that he had run away, while being under supervision of the teachers. 42. In sum, the applicants alleged that the national authorities could have taken a less severe measure than taking their children away from them, and that the State could help them to raise their children themselves by providing them with adequate conditions. They also underlined that the children’s opinion had not been taken into account during the trial. b. The Government 43. The Government accepted that there had been interference with the applicants’ right to respect for their family life as guaranteed by Article 8 § 1 of the Convention. Nevertheless, they maintained that it was in accordance with the law, namely Article 170 of the Family Code; pursued a legitimate aim of protection of the children’s interests; and was not disproportionate. 44. Having underlined that the applicants had not been deprived of their parental rights, the Government stated that the applicants had seldom visited the children after their placement in residential institutions and had failed to improve their living conditions, thereby demonstrating that they were not interested in reuniting their family. 45. In addition, the Government informed the Court that the applicants had received state allowances as well as help from the state-supported USB, which had proved not to be of assistance, as the applicants were immature and irresponsible. In contrast, the children now lived under public care in spacious rooms with two to three room-mates, could attend museums and theatres and go to summer camps. 46. In conclusion, in the Government’s opinion, the interference complained of did not constitute a violation of Article 8 of the Convention. 2. The Court’s assessment a. General principles 47. The Court reiterates that the mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life and that domestic measures hindering such enjoyment amount to an interference with the rights protected by Article 8 (see, inter alia, McMichael v. the United Kingdom, 24 February 1995, § 86, Series A no. 307 ‑ B). Such interference constitutes a violation of this provision unless it is “in accordance with the law”, pursues one of the legitimate aims enumerated in Article 8 § 2 and can be regarded as “necessary in a democratic society” (see McMichael, cited above, § 87). 48. In determining whether a particular interference was “necessary in a democratic society”, the Court will consider whether, in the light of the case as a whole, the reasons adduced to justify it were relevant and sufficient for the purposes of paragraph 2 of Article 8 of the Convention and whether the requisite decision-making process was fair and such as to afford due respect to the interests safeguarded by Article 8 (see, for example, Kutzner v. Germany, no. 46544/99, § 65, ECHR 2002 ‑ I, and Sommerfeld v. Germany [GC], no. 31871/96, § 66, ECHR 2003-VIII). 49. The Court further reiterates that, notwithstanding a margin of appreciation enjoyed by the domestic authorities in deciding on placing a child into public care, severing family ties means cutting a child off from its roots, which can only be justified in very exceptional circumstances (see, for example, Gnahoré v. France, no. 40031/98, § 59, ECHR 2000-IX). A relevant decision must therefore be supported by sufficiently sound and weighty considerations in the interests of the child, and it is for the respondent State to establish that a careful assessment of the impact of the proposed care measure on the parents and the child has been made (see, for example, Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 148, ECHR 2000 ‑ VIII). 50. In particular, where the decision is explained in terms of a need to protect the child from danger, the existence of such a danger should be actually established (see, mutatis mutandis, Haase v. Germany, no. 11057/02, § 99, ECHR 2004 ‑ III (extracts)). In taking a decision on removal of a child, a variety of factors may be pertinent, such as whether by virtue of remaining in the care of its parents the child would suffer abuse or neglect, educational deficiencies and lack of emotional support, or whether the child’s placement in public care is necessitated by the state of its physical or mental health (see Wallová and Walla v. the Czech Republic, no. 23848/04, § 72, 26 October 2006 and Havelka and Others v. the Czech Republic, no. 23499/06, § 57, 21 June 2007). On the other hand, the mere fact that a child could be placed in a more beneficial environment for his or her upbringing does not on its own justify a compulsory measure of removal (see, for example, K.A. v. Finland, no.27751/95, § 92 ECHR 2003-I). Neither can this measure be justified by a mere reference to the parents’ precarious situation, which can be addressed by less radical means than the splitting of the family, such as targeted financial assistance and social counselling (see, for example, Moser v. Austria, no. 12643/02, § 68, 21 September 2006; Wallová and Walla, cited above, §§ 73-76; and Havelka and others, cited above, § 61). 51. Further, in assessing the quality of a decision-making process leading to splitting up the family, the Court will see, in particular, whether the conclusions of the domestic authorities were based on sufficient evidentiary basis (including, as appropriate, statements by witnesses, reports by competent authorities, psychological and other expert assessments and medical notes) and whether the interested parties, in particular the parents, had sufficient opportunity to participate in the procedure in question (see, mutatis mutandis, Schultz v. Poland (dec.), no. 50510/99, 8 January 2002; Remmo and Uzunkaya v. Germany (dec.), no. 5496/04, 20 March 2007; and Polášek v. Czech Republic (dec.), no. 31885/05, 8 January 2007). The Court will also have regard to whether, where appropriate, the children themselves were able to express their views (see, for example, Havelka and Others, cited above, § 62, and Haase, cited above, § 97). 52. In any event, taking a child into care should normally be regarded as a temporary measure, to be discontinued as soon as circumstances permit. It cannot, therefore, be justified without prior consideration of the possible alternatives (see K. and T., cited above, § 166; Kutzner, cited above, § 67; and Moser, cited above, § 70) and should be viewed in the context of the State’s positive obligation to make serious and sustained efforts to facilitate the reuniting of children with their natural parents and until then enable regular contact between them, including, where possible, by keeping the siblings together (see, mutatis mutandis, Kutzner, cited above, §§ 76-77 and K. and T. v. Finland [GC], cited above, § 179). b. Application of these principles in the present case 53. It is common ground that the decision to place O.S., K.S. and T.S. in public care constituted interference with the applicants’ rights guaranteed by Article 8; that this interference was carried out in accordance with the law and pursued a legitimate aim of protecting the interests of the children. It remains to be examined whether this interference was “necessary in a democratic society”. 54. In this regard the Court first notes that the applicants have generally agreed with the Government that it might have been beneficial for their children in material terms to be placed in special educational establishments, such as boarding schools, in light of the limited resources available to them to meet their daily needs. They disagreed, however, as to whether it was necessary to do so by way of imposition of a removal order, which restricted their ability to take children home outside school hours, such as for vacations and weekends. 55. The Court notes that the domestic authorities based their decision on a finding that the applicants, by virtue of insufficient financial means and personal qualities, were unable to provide their children with proper nutrition, clothing, sanitary environment and health care, as well as to ensure their social and educational adaptation, thereby endangering the children’s life, health and moral upbringing. The Court finds that these reasons were undoubtedly relevant to the taking of the requisite decision. 56. In assessing, however, whether they were also sufficient, the Court doubts the adequacy of the requisite evidentiary basis for the finding that the children’s living conditions were in fact dangerous to their life and health. It notes, in particular, that the custody proceedings instituted in January 2004 had not resulted in the children’s removal from home until 23 June 2006, no interim measure having been sought and no actual harm to the children during this period having been recorded. Further, a number of specific conclusions (such as that the children lacked proper nutrition, were dressed inappropriately and were often left home alone) were based solely on the submissions by the municipal authorities, drawn from their occasional inspections of the applicants’ dwelling. No other corroborating evidence, such as the children’s own views, their medical files, opinions by their paediatricians or statements by neighbours had been examined. In fact, the only objective evidence in support of the finding about the children’s inadequate state of health, to which the trial court referred in its decision, was a medical certificate dated a year earlier, attesting that O.S. and K.S. had been placed on record for first-stage anaemia, the accuracy of which, challenged by the applicants, was not verified. Similarly, as regards the failure of the applicants to ensure proper educational and social adaptation of their children, the courts referred primarily to the submissions by the municipal authorities that O.S. had been seen wandering and begging, but no reference to the dates, frequency, names of the witnesses or other relevant circumstances was solicited. 57. Further, there is no appearance that the judicial authorities analysed in any depth the extent to which the purported inadequacies of the children’s upbringing were attributable to the applicants’ irremediable incapacity to provide requisite care, as opposed to their financial difficulties and objective frustrations, which could have been overcome by targeted financial and social assistance and effective counselling. In connection with the financial difficulties, it is not the Court’s role to determine whether the promotion of family unity in the case entitled the applicants’ family to a particular standard of living at public expense. It is, however, a matter which falls to be discussed by, initially, the relevant public authorities and, subsequently, in the course of the judicial proceedings. 58. As regards the extent to which the inadequacies in the children’s upbringing may have been prompted by the applicants’ purported irresponsibility as parents, no independent evidence (such as an assessment by a psychologist) was sought to evaluate their emotional or mental maturity or motivation in resolving their household difficulties. Similarly, in the courts’ reasoning, no analysis was made of the applicants’ attempts to improve their situation, such as requests to equip their flat with access to natural gas, recoup salary arrears or request employment assistance. On the contrary, the courts appear to have taken on trust the submissions by the municipal authorities that the applicants had failed to improve their living conditions and attitudes in spite of financial and other support as well as necessary counselling. Beyond the descriptive findings of the inspection reports, repeatedly pointing to the same problems, such as a rotting baby’s mattress, no data was sought as regards the actual volume and sufficiency of social assistance or the substance of specific recommendations provided by way of counselling and explanations as to why these recommendations had failed. The Court finds that soliciting specific information in this regard would have been pertinent in evaluating whether the authorities discharged their Convention obligation to promote family unity and whether they had sufficiently explored the effectiveness of less far-reaching alternatives before seeking to separate the children from their parents. 59. The Court also notes that at no stage of the proceedings were the children (including O.S., who was thirteen years of age when the first-instance proceedings were pending in December 2004) heard by the judges and that by way of implementation of the removal order not only were the children separated from their family of origin, they were also placed in different institutions. Two of them live in another city, away from Romny where their parents and siblings reside, which renders it difficult to maintain regular contact. 60. Given all these foregoing considerations, the Court concludes that although the reasons given by the national authorities for removal of the applicants’ children were relevant, they were not sufficient to justify such a serious interference with the applicants’ family life. 61. Therefore, there has been a violation of Article 8 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 8 62. The applicants complained that the custody decisions had been taken on the ground of their status as disabled persons, and that the State had failed to fulfil its obligation to provide them with adequate conditions in order to preserve their family. They relied on Article 14 of the Convention taken in conjunction with Article 8. The relevant provision reads as follows: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” 63. The Government insisted that the children had not been removed from the applicants on the ground of their disability. They maintained that many other blind people raised their children themselves, providing them with due care. In the Government’s opinion, the applicants’ living conditions were the result not of their disability or income, but of their own choices. 64. The applicants contested this argument. They stated that firstly their family was unique among blind couples due to the number of their children. Furthermore, none of the families registered with the USB had such an unsuitable housing situation. Although the applicants agreed that their living conditions were not satisfactory to raise children, they nevertheless insisted that their very special situation required more efforts from the State authorities to ensure their dignity and equality with healthy people. 65. The Court notes that, although the applicants’ disability might have presented them with certain challenges in raising their family, such as in search of a suitable employment or arranging the house, it finds that, to the extent that this complaint has been substantiated, there is no appearance that the applicants were treated differently than others in an analogous situation or similarly to others in a different situation (see, among many other authorities, Thlimmenos v. Greece [GC], no. 34369/97, § 44, ECHR 2000-IV). 66. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 67. The applicants also complained that the judicial proceedings and the courts’ decisions in their case were unfair. They relied on Article 6 § 1 of the Convention, which, in so far as relevant, reads as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...” 68. The Government contested these arguments. 69. The Court notes that this complaint is linked to the applicants’ complaint under Article 8 and must therefore likewise be declared admissible. 70. It further reiterates that, notwithstanding the difference in the nature of the interests protected by Articles 6 and 8 of the Convention, which may require separate examination of the claims lodged under these provisions, in the instant case the lack of respect for the applicants’ family life is at the heart of their complaint. Therefore, having regard to its above findings under Article 8 (see paragraphs 60-61 above), the Court considers that it is not necessary to examine the facts also under Article 6 (see Hunt v. Ukraine, no. 31111/04, § 66, 7 December 2006). IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 71. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 72. The applicants claimed 30,000 euros (EUR) in respect of non-pecuniary damage. 73. The Government contested that claim. 74. The Court accepts that the applicants have suffered damage of a non-pecuniary nature as a result of the State’s failure to comply with its obligation relating to the applicants’ right to respect for their family. It finds that this non-pecuniary damage is not sufficiently compensated for by the finding of a violation of the Convention. Making an assessment on an equitable basis, it awards the applicants jointly EUR 5,000 in respect of non-pecuniary damage plus any tax that may be chargeable. B. Costs and expenses 75. The applicants also claimed EUR 1,150 for costs and expenses incurred before the domestic courts and before the Court. 76. The Government noted that the applicants had already received a sufficient sum under this head by way of legal aid from the Council of Europe. 77. According to the Court’s case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, it observes that the applicants failed to present a legal fees agreement with their lawyer or an approved timesheet of the legal work performed before the Court. In light of this and regard being had to the fact that the applicants have already been given legal aid, the Court gives no award under this head. C. Default interest 78. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 8 (right to respect of private and family life) of the Convention, doubting the adequacy of the evidence on which the authorities had based their finding that the children’s living conditions had in fact been dangerous to their life and health. The judicial authorities had only examined those difficulties which could have been overcome by targeted financial and social assistance and effective counselling and had not apparently analysed in any depth the extent to which the applicants’ irremediable incapacity to provide requisite care had been responsible for the inadequacies of their children’s upbringing. Indeed, as regards parental irresponsibility, no independent evidence (such as an assessment by a psychologist) had been sought to evaluate the applicants’ emotional or mental maturity or motivation in resolving their household difficulties. Nor had the courts examined the applicants’ attempts to improve their situation. Furthermore, the Court noted that at no stage of the proceedings had the children been heard by the judges. Moreover, not only had the children been separated from their family of origin, they had also been placed in different institutions. |
899 | Persons arrested or under criminal prosecution | II. RELEVANT DOMESTIC LAW 19. Article 111 of the Criminal Code ( Strafgesetzbuch ) provides: “ 1. Anyone who in such a way that it may be perceived by a third party accuses another of possessing a contemptible character or attitude or of behaviour contrary to honour or morality and of such a nature as to make him contemptible or otherwise lower him in public esteem shall be liable to imprisonment not exceeding six months or a fine... 2. Anyone who commits this offence in a printed document, by broadcasting or otherwise in such a way as to make the defamation accessible to a broad section of the public shall be liable to imprisonment not exceeding one year or a fine. ..” 20. Article 115 of the Criminal Code provides: “ 1. Anyone who, in public or in the presence of several others, insults, mocks, mistreats or threatens to mistreat a third person, shall be liable to imprisonment not exceeding three months or a fine ... unless he is liable to a more severe penalty under another provision ... ” 21. A specific sanction provided for by the Media Act is forfeiture ( Einziehung ) of the publication concerned (section 33). Forfeiture may be ordered in addition to any normal sanction under the Criminal Code (section 33 § 1). 22. Forfeiture can also be ordered in separate so-called “objective” proceedings for the suppression of a publication, as provided for under section 33 § 2 of the Media Act, by virtue of which: “Forfeiture shall be ordered in separate proceedings at the request of the public prosecutor or any other person entitled to bring claims if a publication in the media satisfies the objective definition of a criminal offence and if the prosecution of a particular person cannot be secured or if conviction of such person is impossible on grounds precluding punishment, has not been requested or such a request has been withdrawn ... ” THE LAW I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 23. The applicant company complained under Article 10 of the Convention that the Austrian courts'decision ordering the forfeiture of its issue no. 36/00 of 7 September 2000 infringed its right to freedom of expression. Article 10, as far as relevant, reads as follows: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. ... 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” A. The parties'submissions 24. The applicant company argued that the open letter of Mr Heller fell under the protection of Article 10 of the Convention. It was part of a debate in the media concerning cultural and educational policy which included fundamental political aspects, included true statements of fact and value-judgments based on a factual basis and addressed, inter alia, Mr Westenthaler as leading politician of the FPÖ party. Consequently, the quotation of parts of this letter also enjoyed the protection of Article 10. In addition, the applicant company did not make the objectionable statements itself but restricted itself to a careful quotation. As criminal proceedings against Mr Heller were at that time pending, this information was of public interest. The structure and wording of the article at issue were neutral. Reporting about pending court proceedings could only be informative if also the subject of these proceedings was mentioned. The domestic courts had interpreted the article at issue and the applicant company's possibility of justifying the quotation of the impugned statements narrowly and in breach with Article 10 of the Convention. The mere fact that a statement had to be considered as an offence within the meaning of the relevant legislation did not imply that a report about such a statement amounted ipso iure to an offence against a person's honour. The wording of section 33 of the Media Act was not in conformity with the requirements of Article 10 of the Convention as it did not provide for protection of a correct quotation. The measure at issue constituted a punishment which nature remained unchanged irrespective of the severity of its consequences. It had suffered material damage from the order of forfeiture. 25. The Government argued that according to the “quotation case-law” of the Austrian courts, the publication of a statement which satisfies the definition of an offence may lead to sanctions against the medium concerned unless there is any objective reason, such as e.g. the protection by a basic right, justifying such statement. In the present case, having carefully weighed the freedom of expression against the protection of the reputation of others, the second instance court set out comprehensively the arguments in favour of the application of section 33 of the Media Act. It rightly considered that the statement “ spiritually depraved ” amounted to an offence and violated the concerned person's right to reputation. Referring to case -law of the Court of Appeal, the Government asserted that the correct quotation of an insult of one person by another person was protected by Article 10 of the Convention and did not justify forfeiture. In the present case, however, the applicant company had not reported about the pending defamation proceedings in a neutral way but had identified itself with the content of the quoted statements. The Government referred in this regard to the Court of Appeal's findings as regards the structure and style of the article and, furthermore, to the article's subtitle which wording between the lines in their opinion called the rejection of the reproach of being “spiritually depraved” into question. A victim's right would be almost completely void without an adequate protection against abuse of quotations, if a medium was free to publish and add to defamation by third persons. The applicant company had not been deprived of the possibility to inform the public about the fact that criminal proceedings against Mr Heller were pending. Finally, the forfeiture was principally a safeguarding measure containing elements of minor punishment. It appeared proportionate as most of the issues of the weekly magazine had, in any way, already been published. The applicant company had not sufficiently substantiated the alleged damage resulting from the forfeiture. B. The Court's assessment 26. The Court recalls at the outset that its task is not to review the relevant law and practice in abstracto, but to determine whether the manner in which they were applied to or affected the applicant gave rise to a violation of the Convention (see Karhuvaara and Iltalehti v. Finland, no. 53678/00, § 49, ECHR 2004 ‑ X, with further references ). In order to assess whether there has been a violation of Article 10 of the Convention, the Court will therefore examine the standpoint of reasoning adopted by the second instance court which ordered forfeiture as it found that the interests of Mr Westenthaler overweighed those of the applicant company in its right to freedom of expression. 27. The Court finds, and this was common ground between the parties, that there was an interference with the applicant company's right to freedom of expression, as guaranteed by Article 10 § 1 of the Convention. The interference at issue had its legal basis under section 33 of the Media Act and pursued the legitimate aim of protecting the reputation and rights of others. 28. The parties'arguments concentrated on the necessity of the interference. The Court refers to the general principles relating to the freedom of the press and the question of assessing the necessity of an interference with that freedom, as set out in the summary of its established case-law in the case of Fressoz and Roire v. France ( [GC], no. 29183/95, § 45, ECHR 1999 ‑ I ). In accordance with its case-law, the Court will examine whether the reasons adduced by the domestic courts were “relevant and sufficient” and whether the interference was proportionate to the legitimate aim pursued. In so doing the Court will have regard to the domestic courts'margin of appreciation. 29. In the present case, the article at issue included extracts of Mr Heller's letter calling several FPÖ politicians, among them Mr Westenthaler, “spiritually depraved political upstarts” who “have [not] the slightest awareness of how embarrassing, dastardly and frequently absurd they are”. The domestic courts ordered the forfeiture as they considered that these statements amounted to insults and defamation. The second instance court, unlike the first instance court, further argued that the forfeiture was necessary because the article had adopted, at least in part, the content of the quotation. 30. The Court notes at the outset that the statements concerning inter alia Mr Westenthaler might certainly be considered as polemical. The Court finds, however, that it is of particular relevance in the present case that the article did not make the objectionable statements itself but assisted in their further dissemination by quoting them. At this time the impugned statements had in fact already been widely disseminated as another newspaper had published Mr Heller's open letter some months ago. The applicant company quoted this letter in the context of its reportage about the then pending defamation proceedings against Mr Heller which, involving several FPÖ politicians on the one hand and a well-known artist criticising them publicly on the other hand, was certainly a subject of public interest. The Court further recalls that the press'duty to impart information and ideas on all matters of public interest extends to the reporting and commenting on court proceedings (see, mutatis mutandis, News Verlags GmbH & Co.KG v. Austria, no. 31457/96, § 56, ECHR 2000 ‑ I, with further references). Not only do the media have the task of imparting such information and ideas: the public has a right to receive them. This is all the more so where, like in the present case, the persons involved i.e. well-known politicians, have laid themselves open to public scrutiny (see mutatis mutandis Scharsach and News Verlagsgesellschaft v. Austria, no. 39394/98, § 38, ECHR 2003 ‑ XI ). The Court endorses the applicant company's and the first instance court's argument, that comprehensive reporting about the defamation proceedings at issue would have been considerably restricted without the possibility to inform the readers about the very subject of these proceedings. 31. In these circumstances, the Court cannot find that the reproduction of the impugned extracts of Mr Heller's letter was in itself a valid ground for the forfeiture at issue (see mutatis mutandis Sunday Times v. the United Kingdom (no. 2), judgment of 26 November 1991, Series A no. 217, § 55). On the contrary, due to the fact that the publication of Mr Heller's statements contributed to the discussion of a subject of public interest and addressed well-known politicians, particularly strong reasons had to be put forward in order to explain any punishment of the applicant company for assisting in their dissemination (see mutatis mutandis Thoma v. Luxembourg, no. 38432/97, § 62, ECHR 2001 ‑ III, with further references). 32. The second instance court found that the article's report lacked neutrality and referred in this regard to the repeated hints to the Minister of Justice, Mr Böhmdorfer, whose former law-firm represented the plaintiffs in the defamation proceedings, the article's allusions to political motivations of the law-suits and its passage concerning the outcome of the defamation proceedings before the second instance court, which in particular, expressed that an artist should have the right to sharp criticism. It next noted that the quoted passage had to be assessed in the light of the article as a whole. While the first part of the article, including the passage at issue, might still be regarded as objective reporting when assessed isolated, the following paragraph, namely by its layout, suggested to the reader that Mr Westenthaler, as stated in the quoted passage, was in fact dastardly. 33. The Court cannot find that these are “particularly strong reasons” within the meaning of the above cited case-law. It is certainly true that the article at issue reflected a rather critical approach towards the defamation proceedings. This in itself cannot, however, justify the conclusion that the article identified and adopted the content of the impugned statements of the quoted passage. In this regard the Court further recalls that a general requirement for journalists systematically and formally to distance themselves from the content of a quotation that might insult or provoke others or damage their reputation is not reconcilable with the press's role of providing information on current events, opinions and ideas (see Thoma v. Luxembourg, cited above, § 64 ). The Court finds that in the present case the article remained within the limits of acceptable comment on court proceedings. 34. Turning to the second instance court's remaining arguments, the Court notes that the paragraph following the quoted passage cited extracts of the law-suit's wording which challenged precisely the impugned passage. This paragraph was headed by one of the words subsequently cited, namely the word “dastardly” (“ niederträchtig ”) published between quotation marks and printed in bold. The Court does not find that this form of presentation suggested any message beyond quoting the actual wording of Mr Heller's statement and the subsequent law-suit. 35. In any event, the Court points out that the quoted passage was clearly distinguishable from the remainder of the article as it was published between quotation marks, printed in italic letters and finished off with: “end of quotation” in brackets. No further comment on Mr Westenthaler's character was made in the article or its headings. In these circumstances, the Court cannot accept the argument that the article adopted Mr Heller's criticism as its own. 36. Thus, the domestic courts restricted the applicant company's freedom of expression while relying on reasons which cannot be regarded as “relevant” and “sufficient”. They therefore went beyond what would have amounted to a “necessary” restriction on the applicant company's freedom of expression. The Government's argument as to the limited nature of the interference is therefore not decisive. 37. It follows that there has been a violation of Article 10 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 38. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 39. The applicant company did not submit any claim for damages. However, under the head of costs and expenses, it claimed reimbursement of Mr Westenthaler's domestic proceedings costs which it was ordered to pay. The note of fees accompanying this claim put these costs at 1,956.64 euros (EUR) including value-added tax (VAT). 40. The Government did not make any comment on this claim. 41. The Court finds that this claim should be considered under the head of pecuniary damage. Having regard to the direct link between the applicant company's claim and the violation of Article 10 found by the Court, it awards the applicant company the full amount of EUR 1,956.64. This amount includes VAT. B. Costs and expenses 42. The applicant claimed reimbursement of its costs of the domestic proceedings and the Strasbourg proceedings. These claims were substantiated in the amount of EUR 1, 911.69 including VAT, as regards the domestic and EUR 7,010.6 0, including VAT, as regards the Court proceedings. 43. The Government contended that the applicant company's claim as regards the costs of the Strasbourg proceedings was excessive and that, according to the Austrian Autonomous Remuneration Guidelines for Lawyers, a maximum amount of EUR 1,832.04 should be granted. 44. As to the costs of the domestic proceedings, the Court finds that they were actually and necessarily incurred and also reasonable as to quantum. It therefore awards the full amount claimed, namely EUR 1,911.69. This amount includes VAT. The costs of the Convention proceedings were also necessarily incurred. Having regard to the sums awarded in comparable cases (see, for instance, Öllinger v. Austria, no. 58547/00, § 59, 29 June 2006 ) and making an assessment on an equitable basis, the Court awards EUR 3 ,500. This amount includes VAT. 45. Thus, the Court awards a total of EUR 5,411.69 including VAT under the head of costs and expenses. C. Default interest 46. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 10 (freedom of expression) of the Convention. |
93 | Taking of children into care | II. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND PRACTICE A. Domestic law 1. Legislation 28. The history and development of the system of anonymous registration of births in France is set out in Odièvre v. France ([GC], no. 42326/98, §§ 15-16, ECHR 2003 ‑ III). (a) Social Action and Families Code (as resulting from Law no. 2002-93 of 22 January 2002) 29. The following provisions of the Social Action and Families Code are relevant to the present case: Article L. 224-4 “The following shall be taken into State care: (1) children whose parentage is not established or is uncertain and who have been entrusted to the Child Welfare Service for more than two months; ...” Article L. 224-5 “Where a child is entrusted to the Child Welfare Service in the circumstances referred to in Article L. 224-4, points (1), (2), (3) and (4), a record shall be drawn up. It shall mention that the parents in respect of whom the child ’ s filiation has been established, the child ’ s natural mother or natural father or the person handing the child over have been informed about: (1) the measures introduced, in particular by the State, the local authorities and the social-security bodies, to help parents to raise their children themselves; (2) the rules governing placement in State care in accordance with this Chapter; (3) the time-limits and conditions subject to which the child may be taken back by the father or mother; (4) the possibility of leaving behind any information concerning the health of the father and mother, the child ’ s origins and the reasons for which and circumstances in which the child was placed with the Child Welfare Service. Furthermore, where the child is entrusted to the service by the father or mother in accordance with points (2) or (3) of Article L. 224-4, the parent or parents concerned must be asked to consent to the child ’ s adoption; such consent shall be noted in the record, which must also mention that the parents have been informed of the time-limits and conditions in which they may withdraw their consent, in accordance with the second and third paragraphs of Article 348-3 of the Civil Code.” Article L. 224-6 “The child shall be deemed to have been provisionally taken into State care on the date on which the record referred to in Article L. 224-5 is drawn up. Guardianship arrangements shall be made with effect from the date of such declaration. However, within a period of two months from the date of the provisional placement in State care, the child may be returned immediately and without any further formalities to whichever of the parents entrusted him or her to the service. This period shall be extended to six months, in the circumstances specified in Article L. 224-4, point (3), for whichever parent did not entrust the child to the service. Beyond these periods, the decision to agree to or refuse the return of a child in State care shall, subject to the provisions of Article 352 of the Civil Code, be taken by the official guardian, with the agreement of the Family Council. In the event of a refusal, the persons concerned may apply to the tribunal de grande instance .” (b) Civil Code 30. The relevant provisions of the Civil Code are worded as follows: Article 347 “The following may be adopted: (1) children in respect of whom the mother and father or the Family Council have validly consented to adoption; (2) children in State care; (3) children declared abandoned in the circumstances provided in Article 350.” Article 348-3 “Consent to adoption shall be given before the senior registrar of the district court within whose jurisdiction the home or place of residence of the person giving the consent is situated, or before a French or a foreign notary, or before French diplomatic or consular officials. It may also be received by the Child Welfare Service if the child has been entrusted to the service. Consent to adoption may be withdrawn within a period of two months. Withdrawal of consent shall be effected by means of a registered letter with recorded delivery, addressed to the person or the service that received the consent. The handing over of the child to the parents on request, even a verbal request, shall also be treated as proof that consent has been withdrawn. If, on the expiry of the two-month period, consent has not been withdrawn, the parents may still request the return of the child, provided that the child has not been placed for adoption. If the person who has received the child refuses to give him or her back, the parents may apply to the court, which shall determine, having regard to the child ’ s interests, whether the return of the child should be ordered. The child ’ s return shall invalidate the consent to adoption.” 2. Case-law 31. The Court of Cassation takes the position that, where a mother gives birth anonymously, there are no established parental ties between her and the child and that, accordingly, her consent to adoption is not required. 32. Thus, in a judgment of 5 November 1996 ( Bulletin 1996 I no. 368, p. 259) in a case concerning a request for the return of an anonymously registered child born to a minor, the Court of Cassation quashed the judgment of the Court of Appeal, which had annulled the record of the child ’ s placement with the social services on the ground that the mother was under age and had not been assisted by a person exercising parental responsibility. It held as follows: “In so holding, despite the fact that in the absence of recognition, parental ties had not been established, so that it was not necessary to obtain Ms Y ’ s consent when the child was entrusted to the Child Welfare Service, the Court of Appeal breached the provision cited above [Article 61, point (1), of the Family and Welfare Code].” 33. Conversely, in a recent case in which the mother had given birth anonymously but the biological father had recognised the child before the birth, the Court of Cassation, relying in particular on the New York Convention on the Rights of the Child, quashed and annulled the judgment of the Court of Appeal, which had declared inadmissible the father ’ s application for the return of the child. It gave the following reasons: “... in so holding, despite the fact that, since the child had been identified by Mr X ... on a date prior to the consent to adoption, the child ’ s paternity had been established with effect from the date of the birth as a result of this prenatal recognition, so that the Family Council for Children in State Care, which had been informed of the recognition, could no longer ... validly consent to the child ’ s adoption, consent being the sole prerogative of the biological father, the Court of Appeal, disregarding the child ’ s right to know its declared father, breached the provisions cited above.” (Court of Cassation, First Civil Division, 7 April 2006, Petites affiches 14-17 July 2006) B. International and comparative law 1. International and European law (a) United Nations Convention on the Rights of the Child 34. Article 21 of this Convention provides: “States Parties that recognize and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration and they shall: (a) Ensure that the adoption of a child is authorized only by competent authorities who determine, in accordance with applicable law and procedures and on the basis of all pertinent and reliable information, that the adoption is permissible in view of the child ’ s status concerning parents, relatives and legal guardians and that, if required, the persons concerned have given their informed consent to the adoption on the basis of such counselling as may be necessary; (b) Recognize that inter-country adoption may be considered as an alternative means of childcare, if the child cannot be placed in a foster or an adoptive family or cannot in any suitable manner be cared for in the child ’ s country of origin; (c) Ensure that the child concerned by inter-country adoption enjoys safeguards and standards equivalent to those existing in the case of national adoption; (d) Take all appropriate measures to ensure that, in inter-country adoption, the placement does not result in improper financial gain for those involved in it; (e) Promote, where appropriate, the objectives of the present Article by concluding bilateral or multilateral arrangements or agreements, and endeavour, within this framework, to ensure that the placement of the child in another country is carried out by competent authorities or organs.” (b) Convention of 29 May 1993 on Protection of Children and Cooperation in respect of Intercountry Adoption 35. This convention, which is not directly applicable to the present case since it concerns inter - country adoption, provides in Article 4 that the persons whose consent is necessary for adoption must “have been counselled as may be necessary and duly informed of the effects of their consent”, and that such consent must have been given freely and expressed or evidenced in writing and must not have been withdrawn. In addition, the consent of the mother, where required, must have been given only after the birth of the child. (c) European Convention on the Adoption of Children 36. This Council of Europe convention came into force on 24 April 1968. France has signed it but has not ratified it. Article 5 provides: “1. Subject to paragraphs 2 to 4 of this article, an adoption shall not be granted unless at least the following consents to the adoption have been given and not withdrawn: (a) the consent of the mother ... 4. A mother ’ s consent to the adoption of her child shall not be accepted unless it is given at such time after the birth of the child, not being less than six weeks, as may be prescribed by law, or, if no such time has been prescribed, at such time as, in the opinion of the competent authority, will have enabled her to recover sufficiently from the effects of giving birth to the child.” 37. According to the explanatory report, the object of paragraph 4 is to avoid premature adoptions to which mothers give their consent as a result of pressure exerted before the birth of the child or before their physical health and psychological balance have been restored. 38. The convention is currently undergoing a revision. Article 5 of the draft revised convention is worded as follows: “1. Subject to paragraphs 2 to 5 of this article, an adoption shall not be granted unless at least the following consents to the adoption have been given and not withdrawn: a. the consent of the mother and the father; or if there is neither father nor mother to consent, the consent of any person or body who is entitled to consent in their place; ... 2. The persons whose consent is required for adoption must have been counselled as may be necessary and duly informed of the effects of their consent, in particular whether or not an adoption will result in the termination of the legal relationship between the child and his or her family of origin. The consent must have been given freely, in the required legal form, and expressed or evidenced in writing. ... 5. A mother ’ s consent to the adoption of her child shall be valid when it is given at such time after the birth of the child, not being less than six weeks, as may be prescribed by law, or, if no such time has been prescribed, at such time as, in the opinion of the competent authority, will have enabled her to recover sufficiently from the effects of giving birth to the child.” The explanatory report [1] states the following: “33. Paragraph 2 emphasises that it is essential that the person giving consent has been well informed in advance of the consequences of doing so and that consent is given freely and in writing. ... 38. The object of paragraph 5 is to avoid premature adoptions to which mothers give their consent as a result of pressure exerted before the birth of the child or before their physical health and psychological balance have been restored after the child ’ s birth. 39. Paragraph 6 contains a definition of the terms ‘ father ’ and ‘ mother ’. Given this definition, the consent provided for in this article does not apply to parents of origin when legal affiliation has not been established.” 2. Comparative law (a) Procedures for obtaining the biological parents ’ consent 39. Most European legal systems provide that consent must be obtained by a judge or notary independently of the placement process. Some countries allow the parents ’ consent to be obtained by the social services responsible for the child, [2] by the director of the institution in whose care the child is placed [3] or by the supervisory authority. [4] 40. As regards the provision of information to the biological parents, some national regulations require adoption agencies to provide information on the legal effects of adoption, the adoption process and the other means of assistance available to them. [5] In other countries [6] this obligation falls directly to the judge, who must inform the parents of the legal effects of adoption and of their right to withdraw consent. (b) Time at which the biological parents ’ consent is obtained ( i ) Period of reflection 41. In order to ensure that the biological parents give their free and informed consent, most European legal systems have introduced a statutory period of reflection after the birth. In a similar manner to Article 5 § 4 of the European Convention on the Adoption of Children (see paragraphs 30-32 above), most legal systems [7] envisage a period of not less than six weeks, sometimes extending to as much as three months. [8] 42. Some countries simply make the validity of consent subject to “ the recovery of the mother after giving birth ” [9] or to the condition that it is given after the birth. [10] Lastly, the legislation in other countries [11] makes no provision for a period of reflection, but “prenatal” consent remains prohibited by law in the vast majority of legal systems. (ii) Time-limit for withdrawing consent 43. Some countries have instituted a period within which the biological parents may revoke their consent. There is considerable diversity in the legislation of the member States that have provided for this possibility; some systems allow consent to be withdrawn until the adoption order is issued [12] and others until the adoption process has been initiated, [13] whereas others lay down fixed periods whose length varies from country to country. [14] Lastly, in some countries [15] the biological parents ’ consent is irrevocable. 44. The effects of withdrawal of consent likewise vary from one State to another. In countries such as France or Switzerland, where consent may be revoked during a specified period, the withdrawal has an absolute effect in that it puts an end to the adoption process and opens up the possibility of the child ’ s return. Conversely, in systems where consent may be withdrawn until the adoption order is issued, the withdrawal does not automatically end the process and the courts are required to make a decision on the child ’ s return on the basis of the child ’ s best interests. THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 45. The applicant alleged a breach of her right to respect for her private and family life as enshrined in Article 8 of the Convention, which provides: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 46. The Government contested that view. A. Admissibility 47. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ submissions (a) The applicant ( i ) Length of the period allowed for withdrawing consent 48. The applicant submitted that the period of two months within which consent could be withdrawn under the second paragraph of Article L. 224-6 of the Social Action and Families Code was too short and constituted disproportionate interference with the right of the parents and children to be together in a family environment. She contended that the Government ’ s arguments on this point were unconvincing. 49. Although it was in the interests of the child and the child ’ s future adoptive family that the uncertainty surrounding the planned adoption should not persist, the fact remained that an excessively short period for withdrawing consent was harmful both to the child and to the parents. With regard to the child, the painful psychological effects of adoption should not be overlooked, seeing that before reaching adulthood, many children or adolescents experienced the suffering of being abandoned and pursued the aim of restoring contact with their biological parents. Such suffering could only be exacerbated if the child discovered that, a few months after the birth, the natural mother had unsuccessfully sought to take him or her back. 50. With regard to the parents, the state of psychological distress affecting a mother who was compelled to give her child up to the social services for adoption had to be taken into consideration. The applicant pointed out in that connection that commentaries on the Court of Cassation ’ s judgment of 6 April 2004 had, to varying degrees, highlighted the insufficient length of the relevant period. Professor Monéger, for example, had argued that French legislation did not take sufficient account of the situation of the woman who had given birth [16] and Professor Bicheron had proposed that, without calling the two-month time-limit into question, the legislation should envisage the possibility of allowing consent to be withdrawn outside this time-limit where there had been exceptional circumstances surrounding the pregnancy or birth, provided that this was done within a reasonable period which would have to be defined. [17] 51. The applicant submitted in conclusion that the two-month period in which she had been entitled to claim her child back could not be regarded as sufficiently long to guarantee her right to respect for her family life. ( ii ) Information provided to the applicant 52. In the applicant ’ s submission, the positive measures which the State authorities had to take for the rights guaranteed under Article 8 of the Convention to be effective included making all the necessary arrangements to ensure that a non-French-speaking mother registering a birth anonymously understood the precise implications of her actions. It was therefore unacceptable for the mother not to be given a clear and accurate translation of the legal provisions concerning her, a requirement made even more essential by the technical nature of the legislation. 53. With regard to the present case, she contended that the Government were incapable of proving that she had received sufficient information from the social services. Although the Government had asserted that a welfare officer had translated the gist of the information that should have been provided to her, that in itself was insufficient, seeing that French legislation was anything but straightforward as regards the period within which the biological mother could withdraw consent, as was underlined by Professor Murat ’ s commentary on the Court of Cassation ’ s judgment of 6 April 2004. 54. That being so, the applicant contended that the task of providing information to a foreign mother could not be left to a welfare officer with no indication of possessing the necessary legal knowledge to understand the subtleties of the French legislation himself or herself or sufficient knowledge of English to translate complex legal notions with the clarity and accuracy required to avoid any misunderstanding or ambiguity. 55. Ultimately, the applicant argued, the Government had entirely failed to show that she had been provided with sufficient linguistic assistance to enable her to understand the procedures and time-limits for claiming her child back. Full compliance with this duty to impart information had been particularly essential since the French legislation, as construed by the Court of Cassation, made no provision for any means of redressing a breach of that duty. In that connection she cited a number of articles on legal theory and commentaries on the Court of Cassation ’ s judgment that were critical of the legislation in question. 56. The applicant submitted that, since there was a consensus that the legislation as it currently stood was flawed, the French authorities should have been particularly attentive to the need to do everything possible to ensure that a foreign, non-French-speaking mother was able to understand precisely her rights and obligations vis-à-vis her child once the child had been entrusted to the social services; she concluded that that had not been so in her case, as indeed the Court of Appeal had acknowledged. (b) The Government 57. As a preliminary remark, the Government stated that they did not dispute the applicability of Article 8 of the Convention to the present case, at least with regard to the right to respect for private life. They also accepted that there had been interference with the applicant ’ s rights, but contended that the interference – in particular, the existence of a two-month time-limit beyond which the parent could no longer seek the return of a child whose placement in State care he or she had requested – satisfied the requirements of foreseeability, legitimacy and necessity for the purposes of Article 8. (i ) Length of the period allowed for withdrawing consent 58. The Government submitted that the interference in issue was prescribed by law. It followed from Articles L. 224-4 to L. 224-6 of the Social Action and Families Code, taken together, that a child whose birth was registered anonymously was provisionally taken into State care on being entrusted to the Child Welfare Service, and could be taken back by the mother without any further formalities during a period of two months. Once that period expired, a full adoption order could be made in respect of the child. 59. The Government emphasised that the interference had pursued the legitimate aim of protecting the rights and freedoms of others, and more specifically had been in the child ’ s best interests. The provisions cited were intended to ensure stability for the child, both legally and psychologically, within a foster home. The child ’ s interests dictated that he or she should quickly be able to enjoy stable emotional relations in a new family and should have the benefit of parental ties, the main reason why the Adoption Reform Act of 5 July 1996 had reduced the time-limit for withdrawing consent from three to two months. 60. The Government submitted that where legal or biological parents relinquished their rights, they forfeited their family life with the child they had abandoned, and where the child was given up the day after being born, as in the instant case, no family life had been established. The child-welfare professionals interviewed in the context of the 1995 report on adoption by Professor Mattei had pointed out that it was in the interests of an abandoned child to enjoy stable emotional relations within a new family as quickly as possible, an observation borne out by subsequent studies on attachment disorders and their damaging consequences for the child. 61. The legislature had sought to confer on a child ’ s placement for adoption (the point from which the biological parents could no longer claim the child back) the same legal effects as adoption itself in order to make the child ’ s position more stable. The child ’ s right to family life therefore dictated that the time-limit for withdrawing consent should not be excessive. The relevant provisions also sought to protect the right of the adoptive family to lead a stable family life (they referred to Odièvre, cited above, § 44). 62. The Government further submitted that the interference in issue had been necessary in a democratic society within the meaning of Article 8 § 2. Citing the Court ’ s case-law (in particular, Olsson v. Sweden (no. 1), judgment of 24 March 1988, Series A no. 130, and Odièvre, cited above), they observed that, in striking a fair balance between competing interests, the Court afforded States a certain margin of appreciation and that, in assessing whether or not they had overstepped that margin, it took particular care to ensure that the child ’ s best interests were preserved. In the instant case the Government submitted that, in such a delicate situation as the abandonment of a child by a mother who wished the birth to be registered anonymously, the French legislation attempted to square the various interests at stake: those of the child, the mother and the adoptive family. 63. In assessing the two-month time-limit for withdrawing consent, regard should therefore be had to the absence of pre-existing family life with the biological mother, who had voluntarily given up all family life with her child, to the child ’ s physical and psychological well-being and to the legal and emotional stability desired by the adoptive parents. The time-limit appeared sufficient to enable parents to reflect and to revise their decision if they so desired, especially as the social services provided them with detailed and accurate information about the implications of their actions. The social services had also noted that consent was generally withdrawn either in the first few or in the last few days of the period in question, and that this would remain the case if the period were shortened or extended. 64. Arguing in addition that the period within which consent could be withdrawn under French law was somewhat longer than the period provided for in other legal systems (for example, in Spain, Portugal, Poland, Quebec, Great Britain and Switzerland), the Government concluded that the time-limit satisfied the requirements of Article 8 of the Convention. (ii ) Information provided to the applicant 65. The Government submitted that the applicant, who lived in Ireland and had no ties in France, had made a free and informed choice to go to France to take advantage of the national legislation on anonymous registration of births and adoption. In Irish law, the principle mater semper certa est applied; affiliation was established by the fact of the child ’ s birth. If the applicant had given birth in Ireland, she would have been the child ’ s legal mother without having to recognise her, and the biological father would have been able to assert his rights without any difficulty. It was precisely to avoid that scenario that she had wanted to come to France, in order to keep secret the birth of a child resulting from adultery and to keep her marriage intact, while at the same time excluding the biological father, who was described as “violent and unbalanced” in the record of the child ’ s placement of 19 February 2002. 66. The Government submitted that, contrary to what she had alleged, the applicant, who had been 36 years old at the time, had been entirely aware of the meaning and implications of her actions. She had also been fully informed about the anonymous registration procedure and its practical details. The allegation that the decision had merely been provisional, giving her the chance to overcome temporary problems, was contradicted, in the Government ’ s view, by the fact that, prior to giving birth, she had sought advice from a lawyer, who had taken her to hospital, and that she had taken care to bring documents with her to be handed over to her daughter on reaching the age of majority if she ever wished to know her origins. 67. The Government submitted that, even supposing that the applicant had not been fully aware of her actions before arriving in France, she had in any event received clear and extensive information after the birth about the procedure provided for in Articles L. 224-4 to L. 224-6 of the Social Action and Families Code. That was attested, firstly, by the record of the child ’ s placement in State care and, secondly, by the judgment of the Lille tribunal de grande instance, which noted that the applicant had had at least two lengthy interviews with the social services, during which she had been told about the conditions and effects of anonymous registration of the birth. Although she had not had access to an official interpreter, which was not required by French law, she had been assisted by English-speaking staff during the interviews. Furthermore, in his submissions to the Court of Appeal, the prefect of the département of Nord had referred to the observation by the social services that the applicant “had difficulty in accepting the idea that her daughter would not be placed with adoptive parents immediately after leaving the maternity ward but would be placed temporarily in a foster home or a nursery for two months. In that connection, it was explained to her at length that the purpose of this procedure was to ensure the best possible preparation for the planned adoption, and also to comply with the statutory two-month time-limit for withdrawing consent, which in her case would expire on 20 April 2002.” 68. In the Government ’ s submission, the applicant could not maintain that the social services had failed in their duty to provide information, or that the information imparted, particularly as regards the time-limit for withdrawing consent, had been ambiguous. Lastly, the Government observed that during the two-month period in question, the social services had not been made aware of any incidents suggesting that the applicant wished to or was going to revise her decision. Nothing had been heard from her until 26 July 2002, several days after the Dublin Circuit Family Court ’ s initial decision of 19 July 2002, on an application by the biological father, ordering the applicant to take all necessary steps to ensure that the adoption procedure was suspended. 69. In those circumstances, the Government submitted that the information provided to the applicant in accordance with French legislation was capable of affording effective protection of her right to private and family life. 2. The third party ’ s submissions 70. Mr Byrski is the child ’ s biological father. As to the facts, he stated that he had had a relationship with Ms Kearns in 2001, during which time the child had been conceived, and that, having had no further contact with her after the relationship had ended in September 2001, he had made numerous approaches to the Irish administrative and judicial authorities (including his application to the Dublin Circuit Family Court ), in the belief that the child would be born in Ireland. Having learned in July 2002 that Ms Kearns had given birth in France, he had obtained an order from the Dublin court for the discontinuation of the adoption procedure and the return of the child to Ireland. From July 2002 he had contacted the French authorities, informing them that he was the child ’ s father and that he wanted the adoption procedure to be halted and the child returned to him. He outlined all the steps he had taken with the administrative and judicial authorities to that end (see paragraphs 17 and 20 above). 71. Mr Byrski submitted that his intention had always been to be a good father to his daughter and to look after her, but that the French authorities ’ interference had prevented him from having a normal family life with her. 3. The Court ’ s assessment 72. The Court considers in the first place that the relationship between the applicant and her child comes within the sphere of family life under Article 8 of the Convention (see V.S. v. Germany (dec.), no. 4261/02, 22 May 2007). 73. The Court further considers that the authorities ’ refusal of the request for the child ’ s return had a basis in law, namely Article 348-3 of the Civil Code and Article L. 224-6 of the Social Action and Families Code, and pursued the legitimate aim of protecting the rights and freedoms of others, in this instance the child. 74. The Court reiterates that although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in effective respect for family life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves. The boundaries between the State ’ s positive and negative obligations under Article 8 do not lend themselves to precise definition. The applicable principles are nonetheless similar. In particular, in both instances regard must be had to the fair balance which has to be struck between the competing interests; and in both contexts the State enjoys a certain margin of appreciation (see Keegan v. Ireland, judgment of 26 May 1994, Series A no. 290, p. 19, § 49; Odièvre, cited above, § 40; and Evans v. the United Kingdom [GC], no. 6339/05, § 75, ECHR 2007-...). The Contracting States will usually enjoy a wide margin of appreciation if the public authorities are required to strike a balance between competing private and public interests or Convention rights. This applies all the more where there is no consensus within the member States of the Council of Europe as to the relative importance of the interest at stake or as to the best means of protecting it (see Evans, cited above, §§ 77-81). 75. The Court further reiterates that its task is not to substitute itself for the domestic authorities, but rather to review under the Convention the decisions taken by those authorities in the exercise of their power of appreciation. The Court will therefore examine whether France, in handling the applicant ’ s action for recovery of her child, acted in breach of its positive obligations under Article 8 of the Convention (see Hokkanen v. Finland, judgment of 23 September 199 4, Series A no. 299-A, p. 20, § 55; Mikulić v. Croatia, no. 53176/99, § 59, ECHR 2002 ‑ I; and P., C. and S. v. the United Kingdom, no. 56547/00, § 122, ECHR 2002 ‑ VI). (a) Length of the period allowed for withdrawing consent 76. The applicant complained of the shortness of the two-month time-limit provided for in the second paragraph of Article L. 224-6 of the Social Action and Families Code for withdrawing consent to adoption. 77. As noted in paragraphs 39-44 above, the Court observes that there is no consensus among the member States of the Council of Europe regarding adoption, provision being made for a period of reflection in some countries but not in others, such as France. Similarly, as regards the time-limit for withdrawing consent, there is considerable diversity in the legislation of the member States that have provided for this possibility; some legal systems allow consent to be withdrawn until the adoption order is issued, whereas in others, by contrast, consent is irrevocable. In the States that have a fixed time-limit for withdrawing consent, it varies from ten days to three months. It cannot therefore be said that there is common ground in the member States ’ legislation and practice. 78. As regards the time-limit prescribed by French law, the Government pointed out that it had been reduced from three to two months by the Act of 5 July 1996, so that the child could quickly enjoy stable emotional relations within a new family and have the benefit of parental ties. 79. As it found in Odièvre (cited above, § 44), the Court observes that it is confronted in the present case with interests that are not easily reconciled: those of the biological mother, the child and the adoptive family. There is also a general interest at stake (ibid., § 45). In striking a balance between these different interests, the child ’ s best interests should be paramount. 80. In this connection, the Court accepts the relevance of the arguments put forward by the Government on the basis of studies by child-welfare professionals, which have stressed that it is in the child ’ s interests to enjoy stable emotional relations within a new family as quickly as possible. It further observes that the tribunal de grande instance held that psychological and legal stability should be sought for the child, “ if only through the shortness of the time within which the natural parents may avail themselves of the appropriate procedures ”. 81. Furthermore, while the two-month time-limit may seem brief, it nevertheless appears sufficient to allow the biological mother time to reflect and to reconsider her decision to give the child up. The Court is mindful of the psychological distress which the applicant must have experienced, but observes that she was 36 years old at the time, was accompanied by her mother and had two lengthy interviews with the social services after giving birth (see paragraphs 86-87 below). 82. The Court lastly notes that in a recent case ( V.S. v. Germany, cited above), concerning a minor who had consented to the adoption of her child, it found that the German authorities had not overstepped their margin of appreciation, although under German law, consent to adoption is irrevocable except in the event of a declaration of nullity, which had not been sought in that particular case. 83. Having regard to the margin of appreciation which States must be afforded in view of the diversity in legal systems and traditions and in practice (see Odièvre, cited above, § 49, and Evans, cited above, § 77), the Court considers that the time-limit prescribed by the French legislation seeks to strike a balance and to ensure sufficient proportion between the competing interests (ibid.; see also, conversely and mutatis mutandis, Mizzi v. Malta, no. 26111/02, ECHR 2006 ‑ ... ). 84. Moreover, in the circumstances of the case, the action brought by the third party before the Irish authorities has no bearing on the conclusion reached by the Court. (b) Information provided to the applicant 85. The applicant submitted that the French authorities had not taken all the necessary steps to ensure that she understood the precise implications of her actions. She argued, in particular, that she had not been provided with sufficient linguistic assistance to be able to understand the procedures and time-limits subject to which she could take her child back. 86. The Court observes that the applicant, an Irish national resident in Dublin, chose to give birth in France in order to take advantage of the possibility of registering the birth anonymously, which does not exist in Irish law. As is shown by the documents produced to the Court, she visited the maternity ward in the week prior to the birth, assisted by a lawyer and her mother. The presence of a legal specialist creates a presumption that the applicant was provided with legal information even before the birth. 87. On the two days following the birth, the applicant, accompanied by her mother, had two lengthy interviews (each lasting half a day) with the social services, in the presence of, respectively, a nurse and a doctor with knowledge of English, who had been made available by the hospital to act as interpreters. In this connection, the Court considers that Article 8 cannot be construed as requiring the authorities to ensure the presence of a qualified interpreter in such cases. 88. With regard in particular to the information received by the applicant about the time-limit for withdrawing consent, the Court observes that the record of K. ’ s placement in State care mentioned two periods (two months and six months), which, as the Court of Appeal found, could have given rise to confusion. However, the form of consent to adoption signed by the applicant on the same day expressly stated: “I ... certify that I have been informed: ... that this document will become FINAL after a period of TWO MONTHS, that is, on 20 April 2002, and that during this period, the child may be returned to me in accordance with the prescribed procedures for withdrawal of consent (Article 348-3, paragraphs 2 and 3, of the Civil Code).” 89. Accordingly, no ambiguity could have persisted in the applicant ’ s mind as to the period within which she could seek the return of her child. 90. Lastly, it appears from the relevant documents that the applicant was given a notice outlining the time-limits and conditions for the return of the child, and a model letter for withdrawal of consent. 91. Having regard to the foregoing, the Court considers that in the present case the French authorities provided the applicant with sufficient and detailed information, affording her linguistic assistance not required by law and ensuring that she was informed as thoroughly as possible of the implications of her choice and of the time-limits and procedures for withdrawing consent. 92. The Court therefore concludes that the State has not breached its positive obligations under Article 8 of the Convention in relation to the applicant. There has therefore been no violation of that provision. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AS TO THE LACK OF AN EFFECTIVE REMEDY 93. The applicant submitted that she had been denied the right to an effective remedy, on account of the shortness of the time-limit for withdrawing consent and the insufficiently precise information she had been given about the time-limit. She relied on Article 6 § 1 of the Convention, the relevant parts of which provide: “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal ... ” 94. In so far as this complaint is indissociable from the complaint under Article 8 of the Convention, which it has examined above, the Court considers that it should be declared admissible and that no separate issue arises under Article 6 § 1. III. OTHER ALLEGED VIOLATIONS A. Fairness of the proceedings 95. The applicant also complained, under Article 6 § 1 of the Convention, that the proceedings in the Court of Cassation had not been fair in that the advocate-general, who had not attended the hearing, had filed written submissions to which her lawyer had been unable to reply. Furthermore, in quashing the judgment in her case without remitting it to the court below, the Court of Cassation had ignored an entire section of her arguments as to the incompatibility of French law with the Convention and had wrongly declared one of the prefect ’ s grounds of appeal admissible. 96. As to the first point, the Court observes that the applicant was represented in the Court of Cassation by a member of the Conseil d ’ Etat and Court of Cassation Bar. Her lawyer was thus able to make use of the practice outlined in Reinhardt and Slimane-Kaïd v. France (judgment of 31 March 1998, Reports of Judgments and Decisions 1998-II, p. 666, § § 106 ‑ 1 07 ), whereby the advocate-general informed him prior to the hearing of the tenor of his submissions, thus giving him the opportunity to reply by means of oral submissions at the hearing or a note sent to the court in deliberations. The Court found in Reinhardt and Slimane-Kaïd that this practice satisfied the requirements of Article 6 § 1 of the Convention and sees no reason to depart from that approach in the instant case. 97. As to the second and third points, the Court observes that it has already had occasion to rule on the practice whereby the Court of Cassation quashes a judgment without remitting it to the court below (see, for example, Riha v. France (dec.), no. 71443/01, 24 June 2004 ). In the instant case the Court observes that the applicant ’ s submissions, based, inter alia, on the Convention, were the subject of detailed argument in the tribunal de grande instance and the Court of Appeal and considers that Article 6 § 1 did not entitle her to have them addressed once again by a court of appeal following the remittal of the case. Nor can the Court discern any appearance of arbitrariness in the fact that the Court of Cassation, which determines points of law alone, declared the ground of appeal by the prefect of the département of Nord admissible. 98. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. B. Discrimination 99. The applicant further complained, under Article 14 of the Convention taken together with Article 8, that she had been discriminated against on the ground of language in that she was a native English speaker. 100. Article 14 provides: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” 101. The Court considers that the applicant has not shown that she suffered any discrimination since, as the domestic courts found, she was on the contrary given linguistic assistance not required by law. 102. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. | The Court held that there had been no violation of Article 8 (right to respect for private and family life) of the Convention. Regarding the time-limit for withdrawal of consent, it found that the reflection period provided for under French law sought to strike a balance and ensure the right proportionality between the conflicting interests. The applicant had further been 36 years old at the time, had been accompanied by her mother and had had two long interviews with the social services after the birth. According to the Court, the French authorities had also provided the applicant with sufficient and detailed information, affording her linguistic assistance not required by law and ensuring that she was informed as thoroughly as possible of the consequences of her choice. All the necessary steps had thus been taken to ensure that the applicant understood the precise implications of her actions and the French State had not failed in its positive obligations towards her under Article 8 of the Convention. |
373 | Conditions of detention and domestic remedies | II. RELEVANT DOMESTIC LAW AND PRACTICE 11. A detailed description of the relevant domestic law and practice governing conditions of detention in Poland and domestic remedies available to detainees alleging that those conditions are inadequate are set out in the Court ’ s pilot judgments in the cases of Orchowski v. Poland (no. 17885/04, §§ 75 ‑ 85, 22 October 2009) and Norbert Sikorski v. Poland (no. 17599/05, §§ 45 ‑ 88, 22 October 2009). More recent developments are described in the Court ’ s decision in the case of Łatak v. Poland (no. 52070/08, §§ 25-54, 12 October 2010). THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 12. The applicant complained of poor sanitary conditions in the cells in which he had been kept at the prison in Wronki, and in particular he complained that the toilet facilities were not properly separated from the rest of the cell. He relied on Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 13. The Government contested that argument. A. Admissibility 14. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ submissions 15. The applicant submitted that he was a victim of degrading treatment at Wronki Prison on account of the poor sanitary conditions in the cells where he was serving his sentence. The toilet facilities were not properly separated from the cells. The only method of separation consisted of a fibreboard partition 1. 20 m high without a door, which did not provide even a minimum level of privacy and breached his right to the dignity of his person. 16. The Government submitted that between 31 March 2010 and 6 December 2011 the applicant had been detained in Wronki Prison. During that period he had been placed in ten different cells. None of the cells had been overcrowded. All the cells were equipped with ventilation and windows that could be opened. The ventilation facilities were checked every four months. As regards heating, the Government submitted that the heating system in Wronki Prison was automatic and that the temperature in the cells depended on the air temperature outside. The cells were thus properly ventilated and heated. They further submitted that at the request of the applicant the windows had been sealed and the heaters replaced with new ones. He had also been granted permission to use an additional reading lamp, had received personal hygiene items as provided for by domestic law and had constant access to running water from a tap. 17. The Government admitted that in seven of the ten cells in which the applicant had been kept, the toilet had been separated from the rest of the cell by a fibreboard partition without doors. In the three other cells in which the applicant had been detained at the prison, the toilet had been fully separated off. 18. Finally, the Government submitted that the applicant had been allowed to leave his cell for various activities organised within the prison, such as volleyball and basketball. He was able likewise to participate in cultural and educational activities, and had access to a library and a day room with a television. 2. The Court ’ s assessment (a) General principles 19. The Court reiterates that Article 3 enshrines one of the most fundamental values of democratic societies. The Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the victim ’ s conduct (see Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000 ‑ IV). 20. As the Court has held on many occasions, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 of the Convention. The assessment of this minimum level of severity is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim. Furthermore, in considering whether treatment is “degrading” within the meaning of Article 3, the Court will have regard to whether its object is to humiliate and debase the person concerned and whether, as far as the consequences are concerned, it adversely affected his or her personality in a manner incompatible with Article 3. Although the question whether the purpose of the treatment was to humiliate or debase the victim is a factor to be taken into account, the absence of any such purpose cannot conclusively rule out a finding of a violation of Article 3 (see Peers v. Greece, no. 28524/95, §§ 67 ‑ 68 and 74, ECHR 2001-III, and Valašinas v. Lithuania, no. 44558/98, § 101, ECHR 2001 ‑ VIII). 21. Measures depriving a person of his liberty may often involve an inevitable element of suffering or humiliation. Nevertheless, the level of suffering and humiliation involved must not go beyond that which is inevitably connected with a given form of legitimate treatment or punishment. 22. In the context of prisoners, the Court has emphasised that a detained person does not lose, by the mere fact of his incarceration, the protection of his rights guaranteed by the Convention. On the contrary, persons in custody are in a vulnerable position and the authorities are under a duty to protect them. Under Article 3 the State must ensure that a person is detained in conditions which are compatible with respect for his human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured. ( see Valašinas, cited above, § 102, and Kudła v. Poland [GC], no. 30210/96, § 94, ECHR 2000-XI). 23. When assessing conditions of detention, account has to be taken of the cumulative effects of those conditions, as well as of specific allegations made by the applicant (see Dougoz v. Greece, no. 40907/98, § 46, ECHR 2001-II). The length of the period during which a person is detained in the particular conditions also has to be considered (see, among other authorities, Alver v. Estonia, no. 64812/01, 8 November 2005). 24. In the context of prison conditions the Court has frequently found a violation of Article 3 of the Convention in cases which involved overcrowding in prison cells (see, among many other authorities, Lind v. Russia, no. 25664/05, § 59, 6 December 2007, and Orchowski, cited above, § 135 ). However, in other cases where the overcrowding was not so severe as to raise an issue in itself under Article 3 of the Convention, the Court noted other aspects of the physical conditions of detention as being relevant for its assessment of compliance with that provision. Such elements included, in particular, the availability of ventilation, access to natural light or air, the adequacy of heating arrangements, compliance with basic sanitary requirements and the possibility of using the toilet in private. Thus, even in cases where a larger prison cell was at issue – measuring between 3 and 4 sq. m per inmate – the Court found a violation of Article 3 since the space factor was coupled with an established lack of ventilation and lighting (see, for example, Babushkin v. Russia, no. 67253/01, § 44, 18 October 2007; Ostrovar v. Moldova, no. 35207/03, § 89, 13 September 2005; and Peers, cited above, §§ 70-72), or with a lack of basic privacy in the detainee ’ s everyday life (see, mutatis mutandis, Belevitskiy v. Russia, no. 72967/01, §§ 73-79, 1 March 2007; Valašinas, cited above, § 104; Khudoyorov v. Russia, no. 6847/02, §§ 106-107, ECHR 2005 ‑ X (extracts); and Novoselov v. Russia, no. 66460/01, §§ 32, 40-43, 2 June 2005). (b) Application of these principles to the present case 25. Turning to the circumstances of the present case, the Court notes that the applicant was detained in Wronki Prison between 31 March 2010 and 6 December 2011, that is, for one year and eight months. During this time he was placed in ten different cells, three of which had sanitary facilities completely separated from the rest of the cell (see paragraph 17 above). 26. The applicant ’ s allegations as regards insufficient ventilation and heating and a lack of light in the cells in which he was kept were not confirmed in the proceedings before the domestic courts (see paragraph 8 above) which examined his claim of a violation of his personal rights. The courts did confirm, however, that the sanitary facilities situated at the entrance to seven of his cells had indeed only been separated from the rest of the cell by a fibreboard partition and had no doors (see paragraphs 8 and 1 7 above). 27. The Court notes that in previous cases where the insufficient partition between sanitary facilities and the rest of the cell was at issue, other aggravating factors were present and only their cumulative effect allowed it to find a violation of Article 3 of the Convention (see Canali v. France, no. 40119/09, §§ 52-53, 25 April 2013, and Peers, cited above, § 73 ). In contrast, in the present case, as appears from the Government ’ s submissions, confirmed by the findings made by the domestic courts, the only hardship that the applicant had to bear was the insufficient separation of the sanitary facilities from the rest of the cell. Apart from that, the cells were properly lit, heated and ventilated. The applicant also had access to various activities outside the cells (see paragraphs 8 and 16 above). 28. Taking into consideration the foregoing, the Court considers that the overall circumstances of the applicant ’ s detention in Wronki Prison cannot be found to have caused distress and hardship which exceeded the unavoidable level of suffering inherent in detention or went beyond the threshold of severity under Article 3 of the Convention. 29. There has accordingly been no violation of this provision in the present case. II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION A. Admissibility 30. The applicant complained that the circumstances of the present case amounted to a violation of Article 8 of the Convention, which, in so far as relevant, reads as follows: “1. Everyone has the right to respect for his private ... life ... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 31. The applicant submitted that the sanitary facilities were only separated from the rest of the cell by a fibreboard partition that was 1.20 m high and had no doors. He had requested that the prison authorities at least provide a curtain to separate the sanitary facilities from the rest of the cell in a way that would provide for a minimum of privacy. His requests were, however, refused on the grounds that domestic law did not contain special rules as regards the way in which sanitary facilities should be separated from the rest of the cell. 32. The Government did not comment on those submissions. They submitted, however, that even though the sanitary facilities had indeed not been completely separated from the rest of the cell, the applicant had been ensured a sufficient degree of privacy. 33. The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible. B. Merits 1. General principles 34. The Court reiterates that even though a measure falls short of treatment prohibited by Article 3, it may fall foul of Article 8 of the Convention (see, in another factual context, Wainwright v. the United Kingdom, no. 12350/04, § 43, ECHR 2006 ‑ X). 35. Prisoners in general continue to enjoy all the fundamental rights and freedoms guaranteed under the Convention, save for the right to liberty, where lawfully imposed detention expressly falls within the scope of Article 5 of the Convention (see Hirst v. the United Kingdom (no. 2) [GC], no. 74025/01, § 69, ECHR 2005-IX). 36. Although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by public authorities, it does not merely compel the State to abstain from such interference. In addition to this primarily negative undertaking, there may be positive obligations inherent in ensuring that respect for private and family life is effective. Those obligations may involve the adoption of measures designed to secure respect for private and family life even in the sphere of the relations of individuals between themselves. The boundaries between the State ’ s positive and negative obligations under Article 8 do not lend themselves to precise definition. The applicable principles are nonetheless similar. In particular, in both instances regard must be had to the fair balance to be struck between the competing interests (see Odièvre v. France [GC], no. 42326/98, § 40, ECHR 2003 ‑ III, and Evans v. the United Kingdom [GC], no. 6339/05, § 75, ECHR 2007 ‑ I). 2. Application of the principles to the circumstances of the present case 37. As noted above, the applicant was detained in Wronki Prison, and in seven of the ten cells where he was kept, the sanitary facilities were only separated from the rest of the cell by a fibreboard partition. The sanitary facilities were situated at the entrance to the cell and had no doors. 38. The Court has frequently found a violation of Article 3 of the Convention on account of poor conditions of detention where the lack of a sufficient divide between the sanitary facilities and the rest of the cell was just one element of those conditions (see paragraph 24 above with further references). It therefore follows from the Court ’ s case-law that the domestic authorities have a positive obligation to provide access to sanitary facilities which are separated from the rest of the prison cell in a way which ensures a minimum of privacy for the inmates. The Court observes that according to the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment and Punishment (“CPT”), a sanitary annex which is only partially separated off is not acceptable in a cell occupied by more than one detainee (CPT/Inf (2012) 13, § 78, and 2nd General Report ( CPT/Inf (92) 3 ), § 49). In-cell toilets should be provided with a full partition extending up to the ceiling (CPT/Inf (2015) 12, § 74). In particular, the CPT has recommended, after visits to Polish prisons, that a full partition be installed in all in-cell sanitary annexes (see, for example, CPT/Inf (2014) 21, § 61, and CPT/Inf (2011) 20, §§ 105 and 106). 39. The Court notes that between 31 March 2010 and 6 December 2011 the applicant was placed in ten cells, seven of which had sanitary facilities which were not fully separated off. In those cells he had to use the toilet in the presence of other inmates and was thus deprived of a basic level of privacy in his everyday life. The applicant raised the matter with the prison authorities and requested that at least a curtain be hung in place to separate off the sanitary facilities. The prison authorities replied that domestic law did not set out specific regulations as regards the way in which sanitary facilities were to be fitted and separated off in prison cells (see paragraph 31 above ). 40. It follows that in the present case the domestic authorities failed to discharge their positive obligation of ensuring a minimum level of privacy for the applicant when he was detained in Wronki Prison. 41. Taking into consideration the above, the Court concludes that there has been a violation of Article 8 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 42. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 43. The applicant claimed 32,000 euros (EUR) in respect of non ‑ pecuniary damage. 44. The Government considered this claim excessive. 45. The Court, ruling on an equitable basis, awards the applicant EUR 1,800 in respect of non-pecuniary damage. B. Costs and expenses 46. The applicant did not make any claim for costs and expenses. C. Default interest 47. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been no violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention. It noted in particular that, in the present case, the only hardship the applicant had had to bear was the insufficient separation of the sanitary facilities from the rest of the cell. Apart from that, the cells were properly lit, heated and ventilated and he had access to various activities outside the cells. Therefore, the overall circumstances of his detention could not be found to have caused distress and hardship which exceeded the unavoidable level of suffering inherent in detention or went beyond the threshold of severity under Article 3. However, the Court held that there had been a violation of Article 8 (right to respect for private life) of the Convention. In this respect, it notably recalled that under the Court’s case-law the domestic authorities had a positive obligation to provide access to sanitary facilities separated from the rest of the prison cell in such a way as to ensure a minimum of privacy. The Court also noted that, according to the European Committee for the Prevention of Torture (CPT), a sanitary annex which was only partially separated off was not acceptable in a cell occupied by more than one detainee. In addition, the CPT had recommended that a full partition in all the in-cell sanitary annexes be installed. Despite this, the applicant had been placed in cells in which the sanitary facilities were not fully separated off, and had had to use the toilet in the presence of other inmates. The Polish authorities had thus failed to discharge their positive obligation of ensuring a minimum level of privacy for the applicant. |
1,085 | Dismissal | II. RELEVANT DOMESTIC AND INTERNTIONAL LAW A. Domestic law and practice 26. Section 11 of the Service Act ( Zustellgesetz ) deals with the service of official documents abroad and the service of official documents on foreign nationals and foreign States or international organisations enjoying privileges and immunities under international law. It provides as follows: “1. Service of process abroad shall be effected in accordance with existing international agreements or as provided for by the laws or other legal provisions of the State in which service is to be effected or by international custom, if necessary with the cooperation of the Austrian diplomatic authorities. 2. Service of process on foreign nationals or international organisations which enjoy international privileges and immunities shall be effected through the intermediary of the Federal Ministry of Foreign Affairs, irrespective of where their place of residence or headquarters is located.” 27. The relevant provisions of the Code of Civil Procedure ( Zivilprozeßordnung ) read as follows: Article 116 “In the case of persons on whom process can only be served by publication because their address is unknown, the court shall appoint a representative (Article 9), on application or of its own motion, if the persons concerned would have to perform a step in the proceedings as a result of being served with the documents, and in particular if the documents to be served contain a summons.” Article 121 “1. In the case of service on persons outside the country who do not fall into the categories of recipients referred to in section 11(2) and (3) of the Service Act, the Federal Minister of Justice, in agreement with the Federal Chancellor, may order service to be effected by post, using the system of advice of receipt customarily used for international postal deliveries, to countries in which service in accordance with section 11(1) of the Service Act is not possible or gives rise to difficulties. 2. If no confirmation is received within a reasonable time that process has been served on an individual outside the country, the applicant party may request, depending on the circumstances, that service be effected by publication (section 25 of the Service Act) or by the appointment of a representative under Article 116. This shall also apply in cases where an unsuccessful attempt has been made to serve process abroad or where the request for service has no prospect of success owing to a manifest refusal by the authorities of the foreign State to comply with the request for legal assistance.” 28. In a judgment of 11 June 2001 (8ObA 201/00) in a related case concerning claims for reimbursement of social security contributions brought by the applicant against the United States (see paragraph 11 above), the Supreme Court held as follows: “The appellate court was correct in taking the view that, as international law currently stands, the decision to comply with or refuse a request for legal assistance is a sovereign act, irrespective of the subject-matter of the request. The nature of the act is the defining factor. It is beyond doubt that the service of documents in court proceedings falls within the scope of acta iure imperii and not acta iure gesionis, as a private individual cannot perform an act of this nature (Seidl-Hohenfeldern, Völkerrecht 317 et seq., esp. paras. 1472-79; Neuhold/Hummer/Schreuer, Öster reichisches Handbuch des Völkerrechts3, para. 837). The criticism of the current legal situation raised by the appellant, relying on Schreuer (ÖJZ 1991, 41 et seq. [esp. 48 et seq.], does not alter the fact that, although negotiations have been in progress for some time on an international agreement concerning service of process on foreign States (which might make it sufficient for the action to be served on the country’s foreign ministry), no such agreement has to date been concluded, with the result that the issue remains unregulated by any treaty between Austria and the United States. It is not disputed that, under American Federal law, the United States is represented by the Department of Justice in matters which are to be regarded as acta iure gestionis (compare 9 ObA 244/90 = SZ 63/206 with further references concerning the employment contract between the claimant and the defendant). The action must therefore be served – as correctly requested by the appellant herself – on a body within that authority. It is not sufficient – as the appellant has claimed in the appeal proceedings – for the document to have somehow reached another authority which is meant to be responsible for forwarding the request for service (the Department of State (Foreign Ministry)). Conversely, it would not be sufficient, in order to institute legal proceedings, for an action against the Republic of Austria to be received by the Foreign Ministry if, for whatever reason, it was not forwarded to the Attorney-General’s Office, which is the competent authority in such matters.” B. International law 1. The 1972 European Convention on State Immunity 29. The 1972 European Convention on State Immunity (“the Basle Convention”) entered into force on 11 June 1976 after its ratification by three States. It has been ratified by eight States (Austria, Belgium, Cyprus, Germany, Luxembourg, the Netherlands, Switzerland and the United Kindgom) and signed by one State (Portugal). On 11 June 1976 it entered into force in respect of Austria, which had ratified it on 10 July 1974. The relevant provisions read as follows: Article 5 “1. A Contracting State cannot claim immunity from the jurisdiction of a court of another Contracting State if the proceedings relate to a contract of employment between the State and an individual where the work has to be performed on the territory of the State of the forum. 2. Paragraph 1 shall not apply where: a) the individual is a national of the employing State at the time when the proceedings are brought; b) at the time when the contract was entered into the individual was neither a national of the State of the forum nor habitually resident in that State; or c) the parties to the contract have otherwise agreed in writing, unless, in accordance with the law of the State of the forum, the courts of that State have exclusive jurisdiction by reason of the subject-matter. ... ” Article 16 “1. In proceedings against a Contracting State in a court of another Contracting State, the following rules shall apply. 2. The competent authorities of the State of the forum shall transmit the original or a copy of the document by which the proceedings are instituted; a copy of any judgment given by default against a State which was defendant in the proceedings, through the diplomatic channel to the Ministry of Foreign Affairs of the defendant State, for onward transmission, where appropriate, to the competent authority. These documents shall be accompanied, if necessary, by a translation into the official language, or one of the official languages, of the defendant State. 3. Service of the documents referred to in paragraph 2 is deemed to have been effected by their receipt by the Ministry of Foreign Affairs. ...” 2. The 2004 United Nations Convention on Jurisdictional Immunities of States and their Property 30. State immunity from jurisdiction is governed by customary international law, the codification of which is enshrined in the United Nations Convention on Jurisdictional Immunities of States and their Property of 2 December 2004 (“the 2004 Convention”). The principle is based on the distinction between acts of sovereignty or authority ( acta jure imperii ) and acts of commerce and administration ( acta jure gestionis ) (see Sabeh El Leil v. France [GC], no. 34869/05, §§ 18-23, 29 June 2011; see also Cudak v. Lithuania [GC], no. 15869/02, §§ 25-33, ECHR 2010). 31. The Convention was opened for signature on 17 January 2005 and has not yet entered into force. Austria signed the Convention on 17 January 2005 and ratified it on 14 September 2006. The United States has not ratified the 2004 Convention, but did not vote against it when it was adopted in the General Assembly of the United Nations. 32. The draft text of the Convention was prepared by the United Nations International Law Commission (ILC) which, in 1979, was given the task of codifying and gradually developing international law in matters of jurisdictional immunities of States and their property. It produced a number of drafts that were submitted to States for comment. The Draft Articles that were used as the basis for the text adopted in 2004 dated back to 1991. They were subsequently further revised by the Sixth Committee of the United Nations General Assembly. States were again given an opportunity to comment. 33. Article 11 (contracts of employment) of the 2004 Convention reads as follows: “1. Unless otherwise agreed between the States concerned, a State cannot invoke immunity from jurisdiction before a court of another State which is otherwise competent in a proceeding which relates to a contract of employment between the State and an individual for work performed or to be performed, in whole or in part, in the territory of that other State. 2. Paragraph 1 does not apply if: ( a ) the employee has been recruited to perform particular functions in the exercise of governmental authority; ( b ) the employee is: (i) a diplomatic agent, as defined in the Vienna Convention on Diplomatic Relations of 1961; (ii) a consular officer, as defined in the Vienna Convention on Consular Relations of 1963; (iii) a member of the diplomatic staff of a permanent mission to an international organization or of a special mission, or is recruited to represent a State at an international conference; or (iv) any other person enjoying diplomatic immunity; ( c ) the subject-matter of the proceeding is the recruitment, renewal of employment or reinstatement of an individual; ( d ) the subject-matter of the proceeding is the dismissal or termination of employment of an individual and, as determined by the head of State, the head of Government or the Minister for Foreign Affairs of the employer State, such a proceeding would interfere with the security interests of that State; ( e ) the employee is a national of the employer State at the time when the proceeding is instituted, unless this person has the permanent residence in the State of the forum; or ( f ) the employer State and the employee have otherwise agreed in writing, subject to any considerations of public policy conferring on the courts of the State of the forum exclusive jurisdiction by reason of the subject-matter of the proceeding.” 34. Article 22 (Service of process) of the 2004 Convention reads as follows: “1. Service of process or writ or other document instituting a proceeding against a State shall be effected: ( a ) in accordance with any applicable international convention binding on the State of the forum and the State concerned; or ( b ) in accordance with any special arrangement for service between the claimant and the State concerned, if not precluded by the law of the State of forum; or ( c ) in the absence of such a convention or special arrangement: (i) by transmission through diplomatic channels to the Ministry of Foreign Affairs of the State concerned; or (ii) by any other means accepted by the State concerned, if not precluded by the law of the State of forum. 2. Service of process referred to in paragraph (1) ( c ) (i) is deemed to have been effected by receipt of the documents by the Ministry of Foreign Affairs. 3. These documents shall be accompanied, if necessary, by a translation into the official language, or one of the official languages, of the State concerned. 4. Any State that enters an appearance on the merits in a proceeding instituted against it may not thereafter assert that service of process did not comply with the provisions of paragraphs 1 and 3.” 35. In the Draft Articles on Jurisdictional Immunities of States and their Property, adopted by the International Law Commission at its forty-third session in 1991, and submitted to the General Assembly at that session, Article 11 read as follows: “1. Unless otherwise agreed between the States concerned, a State cannot invoke immunity from jurisdiction before a court of another State which is otherwise competent in a proceeding which relates to a contract of employment between the State and an individual for work performed or to be performed, in whole or in part, in the territory of that other State. 2. Paragraph 1 does not apply if: (a) the employee has been recruited to perform functions closely related to the exercise of governmental authority; (b) the subject of the proceeding is the recruitment, renewal of employment or reinstatement of an individual; (c) the employee was neither a national nor a habitual resident of the State of the forum at the time when the contract of employment was concluded; (d) the employee is a national of the employer State at the time when the proceeding is instituted; or (e) the employer State and the employee have otherwise agreed in writing, subject to any considerations of public policy conferring on the courts of the State of the forum exclusive jurisdiction by reason of the subject-matter of the proceeding.” 36. In the commentary on the International Law Commission’s Draft Articles of 1991, it was stated that the rules formulated in Article 11 appeared to be consistent with the trend in legislative and treaty practice in a growing number of States (ILC Yearbook, 1991, Vol. II, Part 2, p. 44, § 14). 37. In the Draft Articles of 1991, Article 20 (service of process) read as follows: “1. Service of process or writ or other document instituting a proceeding against a State shall be effected: ( a ) in accordance with any applicable international convention binding on the State of the forum and the State concerned; or (b) in the absence of such a convention: (i) by transmission through diplomatic channels to the Ministry of Foreign Affairs of the State concerned; or (ii) by any other means accepted by the State concerned, if not precluded by the law of the State of forum. 2. Service of process referred to in paragraph 1 (b) (i) is deemed to have been effected by receipt of the documents by the Ministry of Foreign Affairs. 3. These documents shall be accompanied, if necessary, by a translation into the official language, or one of the official languages, of the State concerned. 4. Any State that enters an appearance on the merits in a proceeding instituted against it may not thereafter assert that service of process did not comply with the provisions of paragraphs 1 and 3.” 38. The International Law Commission’s commentary on that Article (ILC Yearbook, 1991, Vol. II, Part 2, p. 60, §§ 1-3), in so far as relevant in the present context, stated as follows: “(1) Article 20 relates to a large extent to the domestic rules of civil procedure of States. It takes into account the difficulties involved if States are called upon to modify their domestic rules on civil procedure. At the same time, it does not provide too liberal or generous a regime of service of process, which could result in an excessive number of judgments in default of appearance by the defendant State. The article therefore proposes a middle ground so as to protect the interests of the defendant State and those of the individual plaintiff. Paragraph 1 (2) Paragraph 1 is designed to indicate the normal ways in which service of process can be effected when a proceeding is instituted against a State. Three categories of means by which service of process is effected are provided: first, if an applicable international convention binding upon the State of the forum and the State concerned exists, service of process shall be effected in accordance with the procedures provided for in the convention. Then, in the absence of such a convention, service of process shall be effected either (a) by transmission through diplomatic channels or (b) by any other means accepted by the State concerned. Thus, among the three categories of the means of service of process provided under paragraph 1, an international convention binding both States is given priority over the other two categories. The variety of means available ensures the widest possible flexibility, while protecting the interests of the parties concerned. Paragraphs 2 and 3 (3) Since the time of service of process is decisive for practical purposes, it is further provided in paragraph 2 that, in the case of transmission through diplomatic channels or by registered mail, service of process is deemed to have been effected on the day of receipt of the documents by the Ministry of Foreign Affairs. Paragraph 3 further requires that the documents be accompanied, if necessary, by a translation into the official language, or one of the official languages of the State concerned. ...” In respect of Article 20 § 1 the commentary also gives numerous examples of relevant provisions in national legislation. In addition it refers to Article 16 §§ 1-3 of the European Convention on State Immunity. 39. During the drafting process the United States commented on Article 20 of the 1991 Draft Articles (which became Article 22 of the 2004 Convention). It did not object to the rules enshrined in Article 22 (1) (c) (i) and Article 22 (2). THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 40. The applicant complained that she had not had access to the Austrian courts in connection with her claim for payment of salary from September 1996 onwards arising out of her employment contract with the embassy of the United States of America in Vienna. She relied on Article 6 of the Convention, the relevant part of which reads as follows: “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” 41. The Government contested that argument. A. Admissibility 1. Compliance with the six-month rule 42. The Government submitted that the proceedings concerning the applicant’s request for a judgment in default had been terminated by the Supreme Court’s judgment of 5 September 2001. In those proceedings the question of effective service of the summons on the United States had already been determined with final effect. Accordingly, the application, introduced on 15 December 2003, had been lodged outside the six-month time-limit. 43. The applicant contested that view. She asserted that the proceedings concerning her claim for salary payments from September 1996 onwards had to be considered as a whole. It should not be held against her that, following the Supreme Court’s judgment of 5 September 2001, she had attempted to obtain a decision on the merits of her claim by other means, namely by requesting the appointment of a representative, before lodging her application with the Court. Those attempts had by no means been without prospects of success, as was shown by the fact that the first-instance court had granted her request. Moreover, there had been no case-law on the question whether it was possible to appoint a representative for a foreign State. That question had only been settled by the Supreme Court’s judgment of 7 May 2003, served on the applicant’s counsel on 3 July 2003. 44. The Court notes that the proceedings at issue in the present application concerned the applicant’s claim for salary payments from September 1996 onwards against the United States of America. In both judgments the Supreme Court considered that the defendant had not been duly summoned. In its judgment of 5 September 2001 the Supreme Court concluded that a default judgment could therefore not be issued, and in its judgment of 7 May 2003 it found that the appointment of a representative was not admissible either. Consequently, the courts could not proceed with the applicant’s case. Thus, both judgments concerned the question of the applicant’s access to court. In sum, the Court considers that the proceedings have to be seen as a whole and that no issue of failure to comply with the six-month rule arises. It therefore dismisses the Government’s objection. 2. Applicability of Article 6 § 1 of the Convention 45. The Court observes that the Government did not contest the applicability of Article 6 § 1 to the present proceedings, which concerned claims for salary payments arising out of the applicant’s employment contract with the United States embassy in Vienna. The Court reiterates that in Cudak (cited above, §§ 39-47) and Sabeh El Leil (cited above, §§ 36-42) it applied, mutatis mutandis, the principles it had developed for establishing whether a dispute between a State and a national civil servant fell within the scope of Article 6 § 1 to a dispute between an employee of an embassy and a foreign State. According to these principles (see Vilho Eskelinen and Others v. Finland [GC], no. 63235/00, ECHR 2007 ‑ II, § 62), two conditions must be fulfilled in order for the respondent State to be able to rely before the Court on an applicant’s status as civil servant in excluding him or her from the protection embodied in Article 6. Firstly, the State in its national law must have expressly excluded access to a court for the post or category of staff in question. Secondly, the exclusion must be justified on objective grounds in the State’s interest. 46. It follows from the domestic court’s decisions in the previous set of proceedings relating to salary payments up to June 1995 (see paragraph 9 above) that the Austrian civil courts had jurisdiction over such claims. The applicant thus had, in principle, a right of access to court and it is therefore not necessary to examine whether the second condition was fulfilled. In any case, it has not been suggested that the nature of her post as a photographer was such as to justify excluding her from access to court. Nor has it been contested that the dispute in issue concerned the applicant’s “civil rights” within the meaning of Article 6 § 1 of the Convention. The Court therefore concludes that Article 6 § 1 was applicable to the proceedings at issue. 3. Conclusion 47. In conclusion, the Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties’ submissions (a) The applicant 48. The applicant asserted that the present case was comparable to Cudak (cited above). As in that case, the proceedings at issue concerned claims arising out of an employment contract with the embassy of a foreign State, in respect of which the State did not enjoy immunity. The domestic courts themselves had dismissed the United States’ objection of immunity in the previous set of proceedings brought by the applicant. It was also clear from that previous set of proceedings that Austrian law applied to the dispute at issue. 49. Like in Cudak it followed from Article 11 of the 2004 Convention that the United States could not claim jurisdictional immunity with regard to the employment dispute at issue. Although that Convention had been adopted after the final decision in the present case, it must be considered to codify customary international law, which therefore applied as such at the time when the contested decisions had been given. 50. The gist of the present case was that the Austrian courts, in accepting that the United States’ refusal to serve a summons on the United States Department of Justice was an act of sovereign power, had disregarded the fact that the United States could not rely on immunity in respect of the underlying claim. The Supreme Court, in adopting this approach, had relied on case-law which did not reflect the current state of international law. 51. The Austrian courts should either have effected service according to section 11(1) of the Service Act on the grounds that the United States did not “enjoy immunity under international law” or, alternatively, if relying on section 11(2) of the Service Act and effecting service through diplomatic channels, should have considered that service had been duly effected as the United States Department of State had actually received the documents at issue. 52. The Supreme Court’s view that effective service required service of the documents on the United States’ Department of Justice (as the authority competent to represent the State in civil proceedings) was not in line with the state of international law. On the contrary, it followed from Article 22 of the 2004 Convention and its predecessor provision, Article 20 of the International Law Commission’s 1991 Draft Articles, that service of process through diplomatic channels was deemed to have been effected by receipt of the documents by the Ministry of Foreign Affairs. As the United States Department of State had received the applicant’s action and the summons to a hearing, the Austrian courts should have proceeded on the basis that the defendant had been duly summoned. Consequently, they could and should have appointed a representative for the United States in order to proceed with an examination of the merits of the applicant’s claim. 53. Although the limitation of the applicant’s right of access to court might be considered to have served a legitimate aim, namely guaranteeing comity and good relations between States, it had been disproportionate in her case. In fact the Austrian courts’ legal view did not reflect the state of international law. It had made it entirely impossible for the applicant to pursue her claim and had thus impaired the very essence of her right of access to court. (b) The Government 54. For their part, the Government submitted that the present case had to be distinguished from Cudak (cited above). That case had concerned the question whether accepting a foreign State’s objection of State immunity in an employment-related dispute violated the right of access to court. By contrast, the present case raised the question whether the procedure of serving a summons in a civil action against a foreign State was as such to be qualified as a sovereign act. 55. The Government stressed once more that the question of international law facing the Austrian courts had been how effective service of a civil action on the United States was to be carried out and to what extent the service procedure itself was to be considered as an act of sovereign power. According to the Supreme Court’s case-law, in particular its decision of 11 June 2001 (see paragraph 28 above), carrying out a request for service of a summons – or refusing it as in the present case – fell within the category of “ acta iure imperii ”. Consequently, it was irrelevant whether the objection of State immunity could be successfully relied on in relation to the claim at issue. 56. In any case, the limitation of the applicant’s right of access to court had served a legitimate aim, namely compliance with the generally recognised rules of international law and the promotion of good relations between States. Section 11 of the Service Act, which had been applied in the present case, was a reflection of respect for the foreign State’s sovereignty as required by international law regarding service of process abroad. After the United States had made it clear that it wished to assert its immunity in any further case brought by the applicant, the service of the applicant’s action could only be effected through diplomatic channels under section 11(2) of the Service Act. Repeated attempts to do so had indeed been made but had been unsuccessful. 57. The Supreme Court, in its decision of 7 May 2003, had thus proceeded on the assumption that the United States was entitled under international law to refuse to serve a summons, in the absence of any agreement between Austria and the United States which would have obliged it to agree to such service. Granting any of the measures requested by the applicant, namely effecting service by publication or appointing a representative in accordance with Article 116 of the Code of Civil Procedure was excluded as this would have undermined the principle of respect for another State’s sovereignty and would have negatively affected good relations between States. 58. In short, in respecting the United States’ refusal to serve the summonses in the present proceedings, the Austrian courts had done no more than apply generally recognised rules of international law. There was thus no indication that they had overstepped their margin of appreciation and the limitation of the applicant’s right of access to court had therefore been proportionate. 2. The Court’s assessment (a) General principles 59. The Court has recently summarised the applicable principles in two Grand Chamber judgments, Cudak (cited above) and Sabeh El Leil (cited above). The relevant paragraphs of the Cudak judgment read as follows: “54. The Court reiterates that the right to a fair hearing, as guaranteed by Article 6 § 1 of the Convention, must be construed in the light of the principle of the rule of law, which requires that all litigants should have an effective judicial remedy enabling them to assert their civil rights (see Běleš and Others v. the Czech Republic, no. 47273/99, § 49, ECHR 2002 ‑ IX). Everyone has the right to have any claim relating to his civil rights and obligations brought before a court or tribunal. In this way Article 6 § 1 embodies the ‘right to a court’, of which the right of access, that is, the right to institute proceedings before courts in civil matters, constitutes one aspect only (see Golder v. the United Kingdom, 21 February 1975, § 36, Series A no. 18, and Prince Hans-Adam II of Liechtenstein v. Germany [GC], no. 42527/98, § 43, ECHR 2001 ‑ VIII). 55. However, the right of access to a court secured by Article 6 § 1 of the Convention is not absolute, but may be subject to limitations; these are permitted by implication since the right of access by its very nature calls for regulation by the State. In this respect, the Contracting States enjoy a certain margin of appreciation, although the final decision as to the observance of the Convention’s requirements rests with the Court. It must be satisfied that the limitations applied do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation of the right of access to a court will not be compatible with Article 6 § 1 if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see Waite and Kennedy v. Germany [GC], no. 26083/94, § 59, ECHR 1999 ‑ I; T.P. and K.M. v. the United Kingdom [GC], no. 28945/95, § 98, ECHR 2001 ‑ V; and Fogarty v. the United Kingdom [GC], no. 37112/97, § 33, ECHR 2001 ‑ XI). 56. Moreover, the Convention has to be interpreted in the light of the rules set out in the Vienna Convention of 23 May 1969 on the Law of Treaties, Article 31 § 3 (c) of which indicates that account is to be taken of ‘any relevant rules of international law applicable in the relations between the parties’. The Convention, including Article 6, cannot be interpreted in a vacuum. The Court must therefore be mindful of the Convention’s special character as a human rights treaty, and it must also take the relevant rules of international law into account, including those relating to the grant of State immunity (see Fogarty, cited above, § 35). 57. It follows that measures taken by a High Contracting Party which reflect generally recognised rules of public international law on State immunity cannot in principle be regarded as imposing a disproportionate restriction on the right of access to court as embodied in Article 6 § 1. Just as the right of access to a court is an inherent part of the fair trial guarantee in that Article, so some restrictions on access must likewise be regarded as inherent, an example being those limitations generally accepted by the community of nations as part of the doctrine of State immunity (see Kalogeropoulou and Others v. Greece and Germany (dec.), no. 59021/00, ECHR 2002 ‑ X, and Fogarty, cited above, § 36). 58. Furthermore, it should be remembered that the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective. This is particularly so of the right of access to the courts in view of the prominent place held in a democratic society by the right to a fair trial (see Aït-Mouhoub v. France, 28 October 1998, § 52, Reports 1998 ‑ VIII). It would not be consistent with the rule of law in a democratic society or with the basic principle underlying Article 6 § 1 – namely that civil claims must be capable of being submitted to a judge for adjudication – if a State could, without restraint or control by the Convention enforcement bodies, remove from the jurisdiction of the courts a whole range of civil claims or confer immunities from civil liability on categories of persons (see Fayed v. the United Kingdom, 21 September 1994, § 65, Series A no. 294 ‑ B). 59. Therefore, in cases where the application of the principle of State immunity from jurisdiction restricts the exercise of the right of access to a court, the Court must ascertain whether the circumstances of the case justify such restriction.” 60. In its subsequent judgment in Sabeh El Leil (cited above), the Court reiterated these principles and, summarising its further findings in Cudak, added the following: “52. The Court further reiterates that such limitation must pursue a legitimate aim and that State immunity was developed in international law out of the principle par in parem non habet imperium, by virtue of which one State could not be subject to the jurisdiction of another (see Cudak, cited above, § 60, and Al-Adsani, cited above, § 54). It has taken the view that the grant of immunity to a State in civil proceedings pursues the legitimate aim of complying with international law to promote comity and good relations between States through the respect of another State’s sovereignty (ibid.). 53. In addition, the impugned restriction must also be proportionate to the aim pursued. In this connection, the Court observes that the application of absolute State immunity has, for many years, clearly been eroded, in particular with the adoption of the Convention on Jurisdictional Immunities of States and their Property by the United Nations General Assembly in 2004 (see Cudak, cited above, § 64). This convention is based on Draft Articles adopted in 1991, of which Article 11 concerned contracts of employment and created a significant exception in matters of State immunity, the principle being that the immunity rule does not apply to a State’s employment contracts with the staff of its diplomatic missions abroad, except in the situations that are exhaustively enumerated in paragraph 2 of Article 11 (ibid., § 65). 54. Furthermore, it is a well-established principle of international law that a treaty provision may, in addition to the obligations it creates for the Contracting Parties, also be binding on States that have not ratified it in so far as that provision reflects customary international law, either ‘codifying’ it or forming a new customary rule (ibid., § 66). Consequently, Article 11 of the International Law Commission’s 1991 Draft Articles, as now enshrined in the 2004 Convention, applies under customary international law, even if the State in question has not ratified that convention, provided it has not opposed it either (ibid., §§ 66-67).” (b) Application of these principles to the present case 61. The Court observes that Cudak and Sabeh El Leil (both cited above) concerned the dismissal of a member of the local staff of an embassy, a receptionist in the first case and a head accountant in the second. In both cases the applicants had raised complaints about lack of access to court after the domestic courts had dismissed their claims for compensation, upholding the foreign State’s objection based on State immunity. 62. In the present case it is not in dispute that the United States could not validly rely on jurisdictional immunity in the proceedings at issue. The applicant, an Austrian national, had been employed as a photographer at the United States embassy in Vienna. In proceedings concerning the lawfulness of the applicant’s dismissal the United States had made an objection of State immunity but apparently did not maintain it (see paragraph 7 above). In a first set of proceedings relating to salary claims up to June 1995 the Austrian courts had dismissed the United States’ objection of State immunity (see paragraph 9 above). Subsequently, the applicant brought an action for further salary payments from September 1996 onwards. In those proceedings the applicant’s action and a summons to a hearing were transmitted to the United States Department of State via diplomatic channels. The latter returned the documents to the Austrian embassy in Washington together with the information that the United States wished to assert its immunity in any case brought by the applicant (see paragraph 13 above). 63. As both parties pointed out, the issue raised by the present case is whether the Austrian courts’ acceptance of the United States’ refusal to accept the summonses and to serve them on the Department of Justice, which had authority to represent the State in civil proceedings, violated the applicant’s right of access to court. The courts’ acceptance of this refusal was based on their legal view that the service of a summons in a civil action against a foreign State was in itself a sovereign act. Consequently, the refusal had to be accepted, while the nature of the underlying claim was irrelevant. As a result, the applicant could not obtain an examination of the merits of her claim before the Austrian courts. 64. The Court therefore has to examine whether the limitation of the applicant’s right of access to court served a legitimate aim and whether the impugned restriction was proportionate to the aim pursued. The Court has already found that the grant of immunity to a State in civil proceedings pursues the legitimate aim of complying with international law to promote comity and good relations between States through the respect of another State’s sovereignty (see Cudak, cited above, §§ 60-62, and Sabeh El Leil, cited above, § 55). Despite the difference between these cases and the present case, the Court takes the view that the Austrian courts’ acceptance of the United States’ refusal to serve the summonses issued to it also served that legitimate aim. 65. The Court therefore has to examine the proportionality of the impugned restriction on the applicant’s right of access to court. It reiterates that in Cudak and Sabeh El Leil the domestic courts had dismissed claims by local employees of foreign embassies, accepting the defendants’ objection of State immunity. The Court noted the development in international law towards limiting State immunity in respect of employment-related disputes. That development was reflected in Article 5 of the 1972 European Convention on State Immunity and in Article 11 of the International Law Commission’s 1991 Draft Articles and is now enshrined in Article 11 of the 2004 Convention. 66. Furthermore, the Court observed that according to a well-established principle of international law a rule enshrined in a treaty could be binding on a State as a rule of customary international law even if the State in question had not ratified the treaty, provided that it had not opposed it either (see Cudak, cited above, § 66, and Sabeh El Leil, cited above, §§ 54 and 57). In Cudak, the Court noted that Lithuania had not objected to the wording of Article 11 of the International Law Commission’s 1991 Draft Articles. Although it had not ratified the 2004 Convention it had not voted against it either. The Court therefore concluded that the rule contained in Article 11 of the International Law Commission’s 1991 Draft Articles applied to Lithuania under customary international law (see Cudak, cited above, § 67). Similarly, in Sabeh El Leil, the Court noted that France had not opposed the adoption of the 2004 Convention, and was in the process of ratifying it. It therefore found it possible to affirm that the provisions of the 2004 Convention applied to France under customary international law (see Sabeh El Leil, cited above, § 58). In both cases the Court found that this was a factor to be taken into account when examining whether the right of access to court, within the meaning of Article 6 § 1, had been respected (ibid.). 67. In both cases the Court observed that the domestic law of Lithuania and France, respectively, had moved away from the doctrine of absolute State immunity. The Court then went on to examine, on the basis of the facts, whether the respective applicants could be considered to be covered by any of the exceptions enumerated in paragraph 2 of Article 11 of the International Law Commission’s 1991 Draft Articles. Finding that this was not the case, it concluded in both cases that in upholding the objection based on State immunity the domestic courts had failed to preserve a reasonable relationship of proportionality and had impaired the very essence of the applicant’s right of access to court (see Cudak, cited above, § 74, and Sabeh El Leil, cited above, § 67). 68. The Court will examine whether a similar line of argument can be developed in relation to the issue arising in the present case. It notes that the International Law Commission’s 1991 Draft Articles contained a provision on service of process, namely Article 20. Article 20 § 1 (b) (i) provided that service of process or writ or other document instituting proceedings against a State was to be effected, in the absence of an applicable international convention, by transmission through diplomatic channels to the Ministry of Foreign Affairs of the State concerned. Furthermore, under Article 20 § 2, service of process referred to in paragraph 1 (b) (i) was deemed to have been effected by receipt of the documents by the Ministry of Foreign Affairs. Rules with the same content are contained in Article 22 § 1 (c) (i) and § 2 of the 2004 Convention (see also the similar provisions which are contained in Article 16 §§ 2 and 3 of the 1972 European Convention on State Immunity). 69. The question therefore arises whether the rules embodied in Article 20 of the International Law Commission’s 1991 Draft Articles applied to Austria as rules of customary international law. In the Court’s view, the question is to be answered in the affirmative (see paragraph 38 above and the reference made in the commentary on Article 20 § 1 of the 1991 Draft Articles to Article 16 §§ 1 to 3 of the 1972 European Convention on State Immunity). Austria did not object to this provision of the 1991 Draft Articles. It did not vote against the adoption of the 2004 Convention and subsequently signed and ratified it. In addition, the Court notes that the United States did not object to the rules contained in Article 20 § (1) (b) (i) and § 2 of the 1991 Draft Articles either. While it has not signed or ratified the 2004 Convention, it did not vote against it. 70. The Court observes furthermore that the Austrian courts were aware that, on the basis of developments in international law, service of process on the foreign ministry of another State might be sufficient (see in particular the Supreme Court’s judgment of 11 June 2001, paragraph 28 above, and the Vienna Court of Appeal’s judgment of 18 November 2002, paragraph 19 above). However, they limited themselves to stating that no treaty regulating the issue had been adopted, without examining whether the relevant rules might apply as rules of customary international law. Moreover, the domestic courts held that, although the view that service on the foreign ministry of the State concerned (in this instance the United States Department of State) was defendable under international law, it was not provided for under Austrian law. Consequently, they accepted the Department of State’s refusal to serve the summons on the Department of Justice as a sovereign act. Therefore, the domestic courts concluded that it had not been possible to duly summon the defendant and refused to proceed with a default judgment. They likewise found that the conditions for appointing a representative for the United States had not been fulfilled. As a result, it was impossible for the applicant to proceed with her case. 71. In addition, the Court would reiterate that the applicant’s claim was not one in respect of which jurisdictional immunity could be relied on. According to the rule contained in Article 11 of the 2004 Convention (and Article 11 of the International Law Commission’s 1991 Draft Articles) State immunity does not apply to a State’s employment contracts with the staff of its diplomatic missions abroad, except in situations that are exhaustively enumerated in paragraph 2 of that Article and not relevant here (see also Article 5 of the 1972 European Convention on State Immunity). 72. In conclusion, by accepting the United States’ refusal to serve the summonses in the applicant’s case as a sovereign act and by refusing, consequently, to proceed with the applicant’s case, the Austrian courts failed to preserve a reasonable relationship of proportionality. They thus impaired the very essence of the applicant’s right of access to court. 73. There has accordingly been a violation of Article 6 § 1 of the Convention. II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION AND ITS PROTOCOLS 74. The applicant complained of a violation of Article 1 of Protocol No. 1 in that the Austrian courts’ decisions had made it impossible for her to assert her claims and constituted unjustified interference with her right to peaceful enjoyment of her possessions. Furthermore, she complained under Article 14 taken in conjunction with Article 1 of Protocol No. 1 or Article 6 of the Convention that she had been discriminated against as a disabled person. 75. The Court reiterates that Article 1 of Protocol No. 1 only protects existing possessions, including claims, in respect of which the applicant can argue that he or she has at least a “legitimate expectation” of obtaining effective enjoyment of a property right (see, for instance Kopecký v. Slovakia [GC], no. 44912/98, § 35, ECHR 2004 ‑ IX). The Court cannot find that salary claims against an employer which have not been granted by the domestic courts constitute “possessions” within the meaning of this provision. Consequently, Article 1 of Protocol No. 1 does not apply, nor does Article 14 taken in conjunction with Article 1 of Protocol No. 1. 76. It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4. 77. In so far as the applicant complains under Article 14 of the Convention taken in conjunction with Article 6, the Court finds that there is no indication that the applicant was treated differently in the proceedings at issue on account of her disability. The courts, in accordance with their case-law, considered that the United States’ refusal to serve the summonses in proceedings concerning the applicant’s salary claims was to be considered as an act of sovereign power and therefore made it impossible for them either to give a default judgment, to serve the summonses by any other means or to appoint a representative for the United States. There is nothing to suggest that they would have decided otherwise had the applicant not been disabled. 78. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 79. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 80. The applicant claimed pecuniary damage in respect of her lawyer’s fees and her own expenses. The Court considers that this claim is in essence one for costs and expenses and will deal with it under that head. 81. The applicant claimed 40,000 euros (EUR) in respect of non-pecuniary damage. She submitted in particular that she had suffered considerable stress and anxiety as a result of her lack of access to court. She argued that she had been a single mother, still financially responsible for her daughter, when she was unlawfully dismissed in 1987. She had a walking impairment following her accidents and had to live on a very low income, borrowing money and conducting complex legal proceedings from 1987 until October 1996, when she eventually received salary payments following the first set of proceedings. However, that sum had been considerably reduced by income tax and by her obligation to pay not only the employee’s but also the employer’s social security contributions. Against that background, the continuing insecurity caused by the fact that she could not obtain a judgment in respect of her salary claims for the period starting from September 1996 in the proceedings at issue had caused her considerable distress. 82. The Government contended that the finding of a violation would in itself provide sufficient just satisfaction for any non-pecuniary damage suffered. In any case, the amount claimed was excessive. 83. The Court accepts that the applicant has sustained non-pecuniary damage which the finding of a violation of the Convention in this judgment does not suffice to remedy (see Cudak, cited above, § 79 and Sabeh El Leil, cited above, § 72). Making its assessment on an equitable basis, it awards the applicant EUR 12,000 under this head, plus any tax that may be chargeable. B. Costs and expenses 84. The applicant claimed EUR 54,586.98 in respect of costs and expenses incurred in the domestic proceedings. This sum includes her lawyer’s fees, amounting to EUR 27,090.50 and EUR 23,732.45, both including value-added tax (VAT), and EUR 3,764.03 for her own expenses. She explained that these were expenses incurred for translations and for contacting various authorities and organisations, lawyers and law professors in Austria and in the United States and for travelling to Washington in 1995. 85. In addition the applicant claimed EUR 17,933.38, including VAT, for the Convention proceedings, composed of EUR 12,279.84 for the proceedings up to and including the first set of observations and EUR 5,653.54 for the further observations following continuation of the proceedings after the Grand Chamber’s judgment in Cudak (cited above). 86. With regard to the costs incurred in the domestic proceedings, the Government asserted that it had not been shown that the amounts claimed under the head of lawyer’s fees had been incurred to prevent or redress the alleged violation. In any case, the fees claimed were not in line with the Austrian Lawyers’ Fees Act and were thus excessive. Moreover, it was clear from the applicant’s submissions that an amount of EUR 3,219.55 had been covered by her legal expenses insurance. This sum would have to be deducted in any event. Furthermore, the Government commented that the applicant had not shown that a causal link existed between the alleged violation and her own expenses. Moreover, she had not submitted sufficient evidence in support of the amount claimed, namely EUR 3,764.03. 87. In the Government’s view the applicant’s claims in respect of costs incurred in the Convention proceedings were also excessive. 88. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In respect of the costs claimed for the domestic proceedings, the Court notes that some of the lawyer’s bills submitted by the applicant relate to proceedings which pre-date the proceedings at issue in the present case. In so far as the bills actually relate to the present proceedings, not all the items listed concern costs which were necessarily incurred. The same applies to the costs incurred by the applicant herself. Furthermore, the Court considers that the costs claimed in respect of the Convention proceedings are excessive. Regard being had to the documents in its possession and the above considerations, the Court finds it reasonable to award the sum of EUR 15,000, plus any tax that may be chargeable to the applicant, covering costs under all heads. C. Default interest 89. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 6 § 1 (right of access to court) of the Convention. It found that by accepting the United States’ refusal to serve the summons in the applicant’s case as a sovereign act and by refusing, consequently, to proceed with the applicant’s case, the Austrian courts had failed to preserve a reasonable relationship of proportionality. They had thus impaired the very essence of the applicant’s right of access to court. |
1,012 | Cases concerning the international military operations in Iraq during the Second Gulf War | II. RELEVANT INTERNATIONAL AND DOMESTIC LAW AND PRACTICE A. Relevant provisions of the Third and Fourth Geneva Conventions 33. The following Articles of the Third Geneva Convention of 12 August 1949, Relative to the Treatment of Prisoners of War (“the third Geneva Convention”) and the Fourth Geneva Convention of 12 August 1949, Relative to the Protection of Civilian Persons in Time of War (“the Fourth Geneva Convention”), are of particular relevance to the issues in the present case. Article 2, common to all four Geneva Conventions In addition to the provisions which shall be implemented in peace-time, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them. The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance. Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof... Article 4(A) of the Third Geneva Convention Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy: (1) Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces. (2) Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions: (a) that of being commanded by a person responsible for his subordinates; (b) that of having a fixed distinctive sign recognizable at a distance; (c) that of carrying arms openly; (d) that of conducting their operations in accordance with the laws and customs of war. (3) Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power. (4) Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model. (5) Members of crews, including masters, pilots and apprentices, of the merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions of international law. (6) Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war. Article 5 of the Third Geneva Convention (1) The present Convention shall apply to the persons referred to in Article 4 from the time they fall into the power of the enemy and until their final release and repatriation. (2) Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal. Article 12 of the Third Geneva Convention Prisoners of war are in the hands of the enemy Power, but not of the individuals or military units who have captured them. Irrespective of the individual responsibilities that may exist, the Detaining Power is responsible for the treatment given them. Prisoners of war may only be transferred by the Detaining Power to a Power which is a party to the Convention and after the Detaining Power has satisfied itself of the willingness and ability of such transferee Power to apply the Convention. When prisoners of war are transferred under such circumstances, responsibility for the application of the Convention rests on the Power accepting them while they are in its custody. Nevertheless if that Power fails to carry out the provisions of the Convention in any important respect, the Power by whom the prisoners of war were transferred shall, upon being notified by the Protecting Power, take effective measures to correct the situation or shall request the return of the prisoners of war. Such requests must be complied with. Article 21 of the Third Geneva Convention The Detaining Power may subject prisoners of war to internment. It may impose on them the obligation of not leaving, beyond certain limits, the camp where they are interned, or if the said camp is fenced in, of not going outside its perimeter. Subject to the provisions of the present Convention relative to penal and disciplinary sanctions, prisoners of war may not be held in close confinement except where necessary to safeguard their health and then only during the continuation of the circumstances which make such confinement necessary. ... Article 118 of the Third Geneva Convention Prisoners of war shall be released and repatriated without delay after the cessation of active hostilities. ... Article 42 of the Fourth Geneva Convention The internment or placing in assigned residence of protected persons may be ordered only if the security of the Detaining Power makes it absolutely necessary ... Article 43 of the Fourth Geneva Convention Any protected person who has been interned or placed in assigned residence shall be entitled to have such action reconsidered as soon as possible by an appropriate court or administrative board designated by the Detaining Power for that purpose. If the internment or placing in assigned residence is maintained, the court or administrative board shall periodically, and at least twice yearly, give consideration to his or her case, with a view to the favourable amendment of the initial decision, if circumstances permit. Article 78 of the Fourth Geneva Convention If the Occupying Power considers it necessary, for imperative reasons of security, to take safety measures concerning protected persons, it may, at the most, subject them to assigned residence or to internment. Decisions regarding such assigned residence or internment shall be made according to a regular procedure to be prescribed by the Occupying Power in accordance with the provisions of the present Convention. This procedure shall include the right of appeal for the parties concerned. Appeals shall be decided with the least possible delay. In the event of the decision being upheld, it shall be subject to periodical review, if possible every six months, by a competent body set up by the said Power. Protected persons made subject to assigned residence and thus required to leave their homes shall enjoy the full benefit of Article 39 of the present Convention. Article 133(1) of the Fourth Geneva Convention Internment shall cease as soon as possible after the close of hostilities. Article 132(2) of the Fourth Geneva Convention Each interned person shall be released by the Detaining Power as soon as the reasons which necessitated his internment no longer exist. B. The Vienna Convention on the Law of Treaties, 1969, Article 31 34. Article 31 of the Vienna Convention on the Law of Treaties 1969 (“the Vienna Convention”) provides as follows: Article 31, General Rule of Interpretation 1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. 2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes: (a) Any agreement relating to the treaty which was made between all the parties in connexion with the conclusion of the treaty; (b) Any instrument which was made by one or more parties in connexion with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty. 3. There shall be taken into account, together with the context: (a) Any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions; (b) Any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; (c) Any relevant rules of international law applicable in the relations between the parties. 4. A special meaning shall be given to a term if it is established that the parties so intended. C. Case-law of the International Court of Justice concerning the inter-relationship between international humanitarian law and international human rights law 35. In its Advisory Opinion on The Legality of the Threat or Use of Nuclear Weapons (8 July 1996), the International Court of Justice stated as follows: “25. The Court observes that the protection of the International Covenant for the Protection of Civil and Political Rights does not cease in times of war, except by operation of Article 4 of the Covenant whereby certain provisions may be derogated from in a time of national emergency. Respect for the right to life, however, is not such a provision. In principle, the right not arbitrarily to be deprived of one’s life applies also in hostilities. The test of what is an arbitrary deprivation of life, however, falls to be determined by the applicable lex specialis, namely, the law applicable in armed conflict which is designed to regulate the conduct of hostilities. Thus whether a particular loss of life, through the use of a certain weapon in warfare, is to be considered an arbitrary deprivation of life contrary to Article 6 of the Covenant, can only be decided by reference to the law applicable in armed conflict and not deduced from the terms of the Covenant itself.” 36. In its Advisory Opinion on The Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (9 July 2004), the International Court of Justice rejected Israel’s argument that the human rights instruments to which it was a party were not applicable to occupied territory, and held: “106. ... the Court considers that the protection offered by human rights conventions does not cease in case of armed conflict, save through the effect of provisions for derogation of the kind to be found in Article 4 of the [International Covenant on Civil and Political Rights]. As regards the relationship between international humanitarian law and human rights law, there are thus three possible situations: some rights may be exclusively matters of international humanitarian law; others may be exclusively matters of human rights law; yet others may be matters of both these branches of international law. In order to answer the question put to it, the Court will have to take into consideration both these branches of international law, namely human rights law and, as lex specialis, international humanitarian law.” 37. In its judgment Armed Activities on the Territory of the Congo (Democratic Republic of Congo (DRC) v. Uganda ), (19 December 2005) the International Court of Justice held as follows: “215. The Court, having established that the conduct of the UPDF and of the officers and soldiers of the UPDF [Uganda People’s Defence Force] is attributable to Uganda, must now examine whether this conduct constitutes a breach of Uganda’s international obligations. In this regard, the Court needs to determine the rules and principles of international human rights law and international humanitarian law which are relevant for this purpose. 216. The Court first recalls that it had occasion to address the issues of the relationship between international humanitarian law and international human rights law and of the applicability of international human rights law instruments outside national territory in its Advisory Opinion of 9 July 2004 on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory. In this Advisory Opinion the Court found that ‘the protection offered by human rights conventions does not cease in case of armed conflict, save through the effect of provisions for derogation of the kind to be found in Article 4 of the International Covenant on Civil and Political Rights. As regards the relationship between international humanitarian law and human rights law, there are thus three possible situations: some rights may be exclusively matters of international humanitarian law; others may be exclusively matters of human rights law; yet others may be matters of both these branches of international law.’ (I.C.J. Reports 2004, p. 178, para. 106.) It thus concluded that both branches of international law, namely international human rights law and international humanitarian law, would have to be taken into consideration. The Court further concluded that international human rights instruments are applicable ‘in respect of acts done by a State in the exercise of its jurisdiction outside its own territory’, particularly in occupied territories (ibid., pp. 178-181, paras. 107-113).” D. The Report of the Study Group of the International Law Commission on Fragmentation of International Law 38. The Report of the Study Group of the International Law Commission on the topic “Fragmentation of international law: difficulties arising from diversification and expansion of international law” was adopted by the International Law Commission at its fifty-eighth session, in 2006. The Analytical Study of the Study Group on the same topic, dated 13 April 2006, (A/CN.4/L.682) stated at § 104: The example of the laws of war focuses on a case where the rule itself identifies the conditions in which it is to apply, namely the presence of an ‘armed conflict’. Owing to that condition, the rule appears more ‘special’ than if no such condition had been identified. To regard this as a situation of lex specialis draws attention to an important aspect of the operation of the principle. Even as it works so as to justify recourse to an exception, what is being set aside does not vanish altogether. The [International Court of Justice] was careful to point out that human rights law continued to apply within armed conflict. The exception - humanitarian law - only affected one (albeit important) aspect of it, namely the relative assessment of “arbitrariness”. Humanitarian law as lex specialis did not suggest that human rights were abolished in war. It did not function in a formal or absolute way but as an aspect of the pragmatics of the Court’s reasoning. However desirable it might be to discard the difference between peace and armed conflict, the exception that war continues to be to the normality of peace could not be simply overlooked when determining what standards should be used to judge behaviour in those (exceptional) circumstances. Legality of Nuclear Weapons was a ‘hard case’ to the extent that a choice had to be made by the [International Court of Justice] between different sets of rules none of which could fully extinguish the others. Lex specialis did hardly more than indicate that though it might have been desirable to apply only human rights, such a solution would have been too idealistic, bearing in mind the speciality and persistence of armed conflict. So the Court created a systemic view of the law in which the two sets of rules related to each other as today’s reality and tomorrow’s promise, with a view to the overriding need to ensure ‘the survival of a State’.” E. The House of Lords’ judgment in Al-Jedda 39. In their judgment of 12 December 2007 in the Al-Jedda case ( R. (on the application of Al-Jedda) (FC) (Appellant) v Secretary of State for Defence (Respondent) [2007] UKHL 58), the majority of the House of Lords considered that Mr Al-Jedda’s internment was authorised by United Nations Security Council Resolution 1546. They further held that Article 103 of the United Nations Charter operated to give the United Kingdom’s obligations pursuant to that resolution primacy over its obligations under Article 5 of the Convention (see further Al-Jedda v. the United Kingdom [GC], no. 27021/08, §§ 18-22, ECHR 2011). Lord Bingham, however, made it clear that, despite this conclusion, Article 5 had some continued application: “39. Thus there is a clash between on the one hand a power or duty to detain exercisable on the express authority of the Security Council and, on the other, a fundamental human right which the UK has undertaken to secure to those (like the appellant) within its jurisdiction. How are these to be reconciled? There is in my opinion only one way in which they can be reconciled: by ruling that the UK may lawfully, where it is necessary for imperative reasons of security, exercise the power to detain authorised by UNSCR 1546 and successive resolutions, but must ensure that the detainee’s rights under article 5 are not infringed to any greater extent than is inherent in such detention.” Similarly, Baroness Hale observed: “125. ... I agree with Lord Bingham, for the reasons he gives, that the only way is by adopting such a qualification of the Convention rights. 126. That is, however, as far as I would go. The right is qualified but not displaced. This is an important distinction, insufficiently explored in the all or nothing arguments with which we were presented. We can go no further than the UN has implicitly required us to go in restoring peace and security to a troubled land. The right is qualified only to the extent required or authorised by the resolution. What remains of it thereafter must be observed. This may have both substantive and procedural consequences. 127. It is not clear to me how far UNSC resolution 1546 went when it authorised the [Multi-National Force] to ‘take all necessary measures to contribute to the maintenance of security and stability in Iraq, in accordance with the letters annexed to this resolution expressing, inter alia, the Iraqi request for the continued presence of the multinational force and setting out its tasks’ (para 10). The ‘broad range of tasks’ were listed by Secretary of State Powell as including ‘combat operations against members of these groups [seeking to influence Iraq’s political future through violence], internment where this is necessary for imperative reasons of security, and the continued search for and securing of weapons that threaten Iraq’s security’. At the same time, the Secretary of State made clear the commitment of the forces which made up the MNF to ‘act consistently with their obligations under the law of armed conflict, including the Geneva Conventions’. 128. On what basis is it said that the detention of this particular appellant is consistent with our obligations under the law of armed conflict? He is not a ‘protected person’ under the fourth Geneva Convention because he is one of our own citizens. Nor is the UK any longer in belligerent occupation of any part of Iraq. So resort must be had to some sort of post conflict, post occupation, analogous power to intern anyone where this is thought ‘necessary for imperative reasons of security’. Even if the UNSC resolution can be read in this way, it is not immediately obvious why the prolonged detention of this person in Iraq is necessary, given that any problem he presents in Iraq could be solved by repatriating him to this country and dealing with him here. If we stand back a little from the particular circumstances of this case, this is the response which is so often urged when British people are in trouble with the law in foreign countries, and in this case it is within the power of the British authorities to achieve it. 129. But that is not the way in which the argument has been conducted before us. Why else could Lord Bingham and Lord Brown speak of ‘displacing or qualifying’ in one breath when clearly they mean very different things? We have been concerned at a more abstract level with attribution to or authorisation by the United Nations. We have devoted little attention to the precise scope of the authorisation. There must still be room for argument about what precisely is covered by the resolution and whether it applies on the facts of this case. Quite how that is to be done remains for decision in the other proceedings. With that caveat, therefore, but otherwise in agreement with Lord Bingham, Lord Carswell and Lord Brown, I would dismiss this appeal.” F. Derogations relating to detention under Article 15 of the European Convention on Human Rights and Article 4 of the International Covenant on Civil and Political Rights 40. Leaving aside a number of declarations made by the United Kingdom between 1954 and 1966 in respect of powers put in place to quell uprisings in a number of its colonies, the derogations made by Contracting States under Article 15 of the Convention have all made reference to emergencies arising within the territory of the derogating State. 41. Article 4 of the International Covenant for the Protection of Civil and Political Rights (“ICCPR”) contains a derogation clause similar to Article 15 of the Convention. According to the information available to the Court, since ratifying the ICCPR, 18 States have lodged declarations derogating from their obligations under Article 9, which provides for “the right to liberty and security of person”. Of these, only three declarations could possibly be interpreted as including a reference, by the authorities of the derogating State, to a situation of international armed conflict or military aggression by another State. The States which filed these derogations were Nicaragua, between 1985 and 1988, where the declaration referred to the United States’ “unjust, unlawful and immoral aggression against the Nicaraguan people and their revolutionary government”; Azerbaijan, between April and September 1993, where the declaration referred to the “escalating aggression by the armed forces of Armenia”; and Israel, where the declaration made on 3 October 1991 and currently applicable reads as follows: “Since its establishment, the State of Israel has been the victim of continuous threats and attacks on its very existence as well as on the life and property of its citizens. These have taken the form of threats of war, of actual armed attacks, and campaigns of terrorism resulting in the murder of and injury to human beings. In view of the above, the State of Emergency which was proclaimed in May 1948 has remained in force ever since. This situation constitutes a public emergency within the meaning of article 4 (1) of the Covenant. The Government of Israel has therefore found it necessary, in accordance with the said article 4, to take measures to the extent strictly required by the exigencies of the situation, for the defence of the State and for the protection of life and property, including the exercise of powers of arrest and detention. In so far as any of these measures are inconsistent with article 9 of the Covenant, Israel thereby derogates from its obligations under that provision.” None of the States explicitly expressed the view that derogation was necessary in order to detain persons under the Third or Fourth Geneva Conventions. 42. As regards State practice, in her book, “Captured in War : Lawful Internment in Armed Conflict” (Hart Publishing, Editions A. Pedone, Paris and Oxford 2013) Els Debuf referred to a study she had undertaken of the derogations notified to the concerned authorities for the Convention and the ICCPR, as reflected in the United Nations’ and the Council of Europe’s online databases (last verified on 1 October 2010). She noted as follows: “Our research of these databases – focused on international armed conflicts and occupations in which States parties to the ICCPR and ECHR were involved since their date of ratification – has provided us with the following information .... Neither Afghanistan nor the Soviet Union derogated from the ICCPR during the conflict that opposed the two States from 1979 to 1989. Likewise, neither Afghanistan, Australia, Canada, Denmark, France, Germany, Italy, the Netherlands, New Zealand, the UK or the US derogated from the right to liberty under the ICCPR or the ECHR in relation to the international phase of the recent conflict in Afghanistan (2001-2002); the same is true for the conflict that opposed Iraq to the US, UK and other States from 2003 to 2004. The following States have also interned persons on the basis of the Third and the Fourth Geneva Conventions without derogating from the right to liberty in the ICCPR or ECHR: the UK and Argentina in the conflict over the Falklands/Malvinas islands in 1982; the US during its military operations in Grenada in 1983; India and Bangladesh in the conflicts with Pakistan in the 1970’s (Pakistan is not a party to the ICCPR); Iran and Iraq during the 1980-1988 war; Israel and the Arab States in any of the international armed conflicts opposing them in the Middle East (1948-today) [but note the derogation filed by Israel, set out in paragraph 40 above]; the States parties to the ECHR that participated under the umbrella of the UN in the Korean War from 1950 to 1953; Iraq, Kuwait, the US and the UK during the 1991 Gulf War (Saudi ‑ Arabia, which interned many prisoners of war during that conflict, is not a party to the ICCPR); Angola, Burundi, the Democratic Republic of the Congo (DRC), Namibia, Rwanda, Uganda and Zimbabwe in the DRC (1998-2003); Ethiopia in the conflict opposing it to Eritrea from 1998 to 2000 (Eritrea had not yet ratified the ICCPR at the time); Eritrea and Djibouti in the short border conflict in 2008; Georgia and Russia in the blitz war of August 2008; Russia did not derogate from the ICCPR in relation to the conflict with Moldova over Transdnistria in 1992 (Russia was not yet a party to the ECHR and Moldova was not yet a party to either the ICCPR or the ECHR at the time). Neither Cyprus nor Turkey derogated from the ICCPR or the ECHR to intern on the basis of GC III-IV in Northern-Cyprus (note that Turkey did not consider the ICCPR or the ECHR to apply extra-territorially); Turkey did derogate from the ECHR as far as persons within mainland Turkey were concerned but since it did not specify the articles from which it intended to derogate it is unclear whether it thought it necessary to do so in order to intern persons on the basis of GC III and IV. Similarly, Azerbaijan derogated from the ICCPR (it was not a party to the ECHR yet at the time) to take measures that were necessary as a result of the conflict with Armenia (1988 ‑ 1994), but it is unclear whether it did so to intern persons on the basis of the Geneva Conventions; Armenia did not derogate from the ICCPR (it was not yet a party to the ECHR at the time). Likewise, Nicaragua derogated from article 9 ICCPR, saying it was obliged to do so following the US involvement in the conflict with the Contras in the 1980s. It is unclear whether Nicaragua thought it necessary to derogate from the ICCPR to intern on the basis of the Geneva Conventions, in its notices of derogation it insisted that article 9§1 was only derogated from for offences against national security and public order.” THE LAW I. THE COURT’S ASSESSMENT OF THE EVIDENCE AND ESTABLISHMENT OF THE FACTS A. The parties’ submissions 1. The applicant 43. The applicant contended that the evidence of his sisters, friend and neighbour demonstrated that his brother was captured and detained by British forces with the purpose of inducing the applicant to surrender himself. The first reference made by the Government to the battalion record, which referred to Tarek Hassan’s arrest (see paragraph 11 above), was in its observations to the Grand Chamber in September 2013. No good explanation for the recent appearance of this material had been provided, which was surprising given the emphasis placed on the document by the Government. The applicant made no admissions as to whether or not he accepted it was genuine. He underlined, also, that it was the sole document to make any reference to Tarek Hassan’s having been found in possession of an AK-47 machine gun and positioned on the roof. Neither of the records of his interviews (see paragraphs 23-24 above) referred to his having been detained as a suspected combatant or having posed any threat, real or suspected, to British forces at any time. 44. The applicant further contended that the Camp Bucca computer detention records recorded three different release dates, none of which appeared reliable (see paragraph 28 above). Similarly, the place of release was a matter of speculation based on unclear and inconsistent evidence (see paragraphs 27-28 above). It could not even be said with any certainty that Tarek Hassan was not still being detained after the search of Camp Bucca on 12 May 2003, given in particular the release date entered on the United States records. The applicant pointed out that his brother was found dead with the United States Camp Bucca identity tag still on him (see paragraph 29 above) and that he had not contacted his family at any point after he had been captured by United Kingdom forces, which strongly suggested that he had had no opportunity to do so. 2. The Government 45. The Government submitted that the applicant had not established an adequate justification for the delay in raising his complaints with the United Kingdom authorities. The delay had imposed an inevitable impediment to the effective investigation of Tarek Hassan’s death. No adverse inferences should be drawn from the Government’s inability to provide an explanation for Tarek Hassan’s death in circumstances where the evidence provided a satisfying and convincing explanation of his arrest, detention and release. 46. The Government denied the allegation that Tarek Hassan was detained as a means of putting pressure on the applicant to surrender. They contended that the evidence submitted by the applicant in support of this claim was imprecise and hearsay and that such a purpose on the part of the United Kingdom authorities would have been inconsistent with Tarek Hassan’s subsequent release from Camp Bucca as soon as his status had been established as a civilian who did not pose a threat to security. Instead, they contended that it was reasonable for the British forces to suspect Tarek Hassan of being a combatant, since he was found, armed, on the roof of the house of a general of the Al-Quds Army, which house contained other firearms and a number of documents of intelligence value relating to local members of the Ba’ath Party (see paragraph 11 above). The Government further pointed out that, apart from the applicant’s witness statement, there was no independent evidence of the cause of death because this information had not been entered on the death certificate (see paragraph 29 above). In any event, they emphasised that Samara was some 700 kilometres from Camp Bucca, in an area that had never been occupied by British forces, and that the AK-47 machine gun was not a weapon used by British forces. B. The Court’s evaluation of the facts 47. At the outset, the Court recalls that the domestic proceedings were dismissed on the ground that the applicant’s brother did not fall within the jurisdiction of the United Kingdom at any material time (see paragraph 31 above). It was not therefore necessary for the national courts to establish the facts in any detail. The Court is generally sensitive to the subsidiary nature of its role and cautious in taking on the role of a first-instance tribunal of fact (see McKerr v. the United Kingdom (dec.), no. 28883/95, 4 April 2000). However, in the present circumstances it is unavoidable that it must make some findings of fact of its own on the basis of the evidence before it. 48. In cases in which there are conflicting accounts of events, the Court is inevitably confronted when establishing the facts with the same difficulties as those faced by any first-instance court. It reiterates that, in assessing evidence, it has adopted the standard of proof “beyond reasonable doubt”. However, it has never been its purpose to borrow the approach of the national legal systems that use that standard. Its role is not to rule on criminal guilt or civil liability but on Contracting States’ responsibility under the Convention. The specificity of its task under Article 19 of the Convention – to ensure the observance by the Contracting States of their engagement to secure the fundamental rights enshrined in the Convention – conditions the Court’s approach to the issues of evidence and proof. In the proceedings before it, there are no procedural barriers to the admissibility of evidence or pre-determined formulae for its assessment. It adopts the conclusions that are, in its view, supported by the free evaluation of all evidence, including such inferences as may flow from the facts and the parties’ submissions. According to its established case-law, proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Moreover, the level of persuasion necessary for reaching a particular conclusion and, in this connection, the distribution of the burden of proof, are intrinsically linked to the specificity of the facts, the nature of the allegation made and the Convention right at stake. The Court is also attentive to the seriousness that attaches to a ruling that a Contracting State has violated fundamental rights (see El Masri v. “the former Yugoslav Republic of Macedonia ” [GC], no. 39630/09, § 151, ECHR 2012). 49. Furthermore, it is to be recalled that Convention proceedings do not in all cases lend themselves to a strict application of the principle affirmanti incumbit probatio (the principle, that is, that the burden of proof lies on the person making the allegation in question). The Court reiterates its case-law under Articles 2 and 3 of the Convention to the effect that where the events in issue lie within the exclusive knowledge of the authorities, as in the case of persons under their control in custody, strong presumptions of fact will arise in respect of injuries and death occurring during that detention. The burden of proof in such a case may be regarded as resting on the authorities to provide a satisfactory and convincing explanation. In the absence of such explanation the Court can draw inferences which may be unfavourable for the respondent Government. The Court has already found that these considerations apply to disappearances examined under Article 5 of the Convention, where, although it has not been proved that a person has been taken into custody by the authorities, it is possible to establish that he or she was officially summoned by the authorities, entered a place under their control and has not been seen since. In such circumstances, the onus is on the Government to provide a plausible and satisfactory explanation as to what happened on the premises and to show that the person concerned was not detained by the authorities, but left the premises without subsequently being deprived of his or her liberty. Furthermore, the Court reiterates that, again in the context of a complaint under Article 5 § 1 of the Convention, it has required proof in the form of concordant inferences before the burden of proof is shifted to the respondent Government (see El Masri, cited above, §§ 152-153). 50. It is not in dispute in the present case that the applicant’s brother was captured by United Kingdom forces on 23 April 2003, subsequently detained at Camp Bucca and that he died shortly before his body was found in Samara on 1 September 2003. The disagreement over the facts centres on two issues: first, whether Tarek Hassan was arrested and detained as a means of exerting pressure on the applicant to surrender himself and, secondly, in what circumstances Tarek Hassan left Camp Bucca. In addition, since the applicant alleges that Tarek Hassan’s body had marks of ill-treatment on it, the question arises whether he was ill-treated while in detention. 51. As to the first point, the Court notes that the only evidence before it which supports the claim that Tarek Hassan was taken into detention in an attempt to force the applicant to surrender himself are the two statements made by the applicant and the note of a telephone interview with the applicant’s neighbour, both prepared for the purposes of the domestic proceedings (see paragraphs 12-13 above). In the applicant’s first statement he alleged that his sisters had been told by the British military authority that Tarek Hassan would not be released until the applicant gave himself up. In the second statement, the applicant claimed that this information was given to his neighbour and his friend. In neither of the applicant’s statements, nor that of his neighbour, Mr Al-Ubody, is the representative of the United Kingdom military who made the alleged assertion identified, by name or rank. Given the lack of precision, the hearsay nature of this evidence and the internal inconsistencies in the applicant’s statements, the Court does not find the evidence in support of the applicant’s claim to be strong. 52. For their part, the Government were not able to present the Court with any witness evidence relating to Tarek Hassan’s capture. However, they provided the Court with the operational log of the Black Watch Battalion which was created contemporaneously with the events in question (see paragraph 11 above). It records that, when British forces arrived at the house, Tarek Hassan was positioned on the roof, armed with an AK-47 machine gun and that other firearms and documents of intelligence value were found in the house. In addition, the Government provided records of interviews at Camp Bucca with Tarek Hassan and screen shots of entries relating to him on the AP3-Ryan database (see, respectively, paragraphs 23 ‑ 24 and 18, 22 and 28 above). The Court has no grounds on which to question the authenticity of these records. They show that Tarek Hassan was registered at Camp Bucca on 23 April 2003, taken to the JFIT compound at 16.40 on 23 April 2003 and released to the civilian holding area of Camp Bucca on 25 April 2003 at 8 p.m. local time. The computer records further show that he was questioned once on 23 April 2003 21.30 local time and again on 25 April at 8 a.m. local time. Records of both interviews have been provided to the Court. They show that Tarek Hassan’s identity as the applicant’s brother was known and that it was established in the course of questioning that he had no personal involvement with the Ba’ath Party or the Al-Quds Army. 53. In the Court’s view, the capture and questioning records are consistent with the Government’s submission that Tarek Hassan was captured as a suspected combatant or a civilian posing a threat to security. This view is supported by other evidence which tends to show that Tarek Hassan may well have been armed with, or at least in the possession of, an AK-47 machine gun at the moment of his capture, namely the applicant’s assertion that his younger brother had been left to protect the family home (see paragraph 10 above) and Tarek Hassan’s reported explanation, during his interrogation by British agents, of the presence of the weapon as being for personal protection (see paragraph 24 above). The Camp Bucca records further indicate that he was cleared for release as soon as it had been established that he was a civilian who did not pose a threat to security. 54. The Court accepts that Tarek Hassan’s capture was linked to his relationship with his brother, but only to the extent that the British forces, having been made aware of the relationship by Tarek Hassan himself and finding Tarek Hassan armed at the moment of capture (see paragraph 11 above), may have suspected that he also was involved with the Ba’ath Party and Al-Quds Army. The Court does not find that the evidence supports the claim that Tarek Hassan was taken into custody to be held until the applicant should surrender. If that had been the intention of the United Kingdom forces, he would not have been cleared for release immediately after the second interview and less than 38 hours after his admission to Camp Bucca (see paragraph 22 above). 55. As regards the date and place of Tarek Hassan’s release, the principal evidence consists of entries from AP3-Ryan (see paragraph 28 above). One entry made on 4 May 2003 recorded that Tarek Hassan had been released on 2 May 2003, by coach, to Umm Qasr, on the ground of the “End of Hostilities”. Another entry on 12 May 2003 found that Tarek Hassan was not present in the Camp when a full check of detainees was made. The Court considers, on the basis of these entries, taken together with the decision made following the second screening interview not to continue to detain Tarek Hassan, that he was in all probability released early in May 2003. This view is further supported by the evidence provided by the Government concerning the policy decision taken by United Kingdom forces to release all detainees prior to or immediately following the cessation of hostilities announced on 1 May 2003, save those suspected of criminal offences or of activities posing a risk to security (see paragraph 27 above). As to the place of release, the Court notes that Camp Bucca was situated only about 2.5 kilometres from Umm Qasr. Although the main text of the relevant military order relating to the release of detainees from Camp Bucca did not list Umm Qasr as a drop-off point (listing only four towns to the north of the Camp), the annex to the order did describe Umm Qasr as a release area. It is impossible to be certain in the absence of more conclusive evidence, but given the town’s proximity to the Camp, its mention in the annex, the United Kingdom policy of releasing detainees following the end of hostilities and the computer entries concerning Tarek Hassan’s release, the Court finds that it is probable that Tarek Hassan was released in or near Umm Qasr on 2 May 2003. 56. The Court is of the view that, in this case, since the evidence concerning Tarek Hassan’s detention and release was, for the most part, accessible only to the Government, the onus is on them to provide a plausible and satisfactory explanation as to what happened to Tarek Hassan in the Camp and to show that he was released and that the release followed a safe procedure (see paragraph 49 above). The computer records show that by 22 May 2003 the United Kingdom had captured and processed some 3,738 detainees in Iraq since the start of hostilities and had released all but 361 (see paragraph 28 above). In the light of the time that had elapsed before the applicant lodged his claim and the large number of United Kingdom detainees that were released from Camp Bucca around the end of April and the beginning of May 2003, it is unsurprising that no eye witness able to remember Tarek Hassan’s release has been traced. In the circumstances of the present case, the Court finds that the evidence referred to above is sufficient to satisfy the burden of proof on the Government. 57. Finally, there is no evidence before the Court to suggest that Tarek Hassan was ill-treated while in detention. The interview records show that he was questioned on two occasions, shortly after having been admitted to the Camp, and found to be a civilian, of no intelligence value and not posing any threat to security. The witness statement submitted by the applicant, of Mr Al-Saadoon, who claimed to have seen Tarek Hassan in the civilian holding area in Camp Bucca in the period after he was questioned and before he was released, makes no mention of any sign of injury on Tarek Hassan or any complaint by him of ill-treatment. Moreover, apart from the applicant’s witness statement, there is no evidence before the Court as to the cause of Tarek Hassan’s death or the presence of marks of ill-treatment on his body, since the death certificate contains no information on either point. Assuming the applicant’s description of his brother’s body to be accurate, the lapse of four months between Tarek Hassan’s release and his death does not support the view that his injuries were caused during his time in detention. 58. Having established the facts of the case, the Court must next examine the applicant’s complaints under the Convention. II. ALLEGED VIOLATION OF ARTICLES 2 AND 3 OF THE CONVENTION A. The parties’ submissions 1. The applicant 59. The applicant complained that the circumstances of Tarek Hassan’s death gave rise to, at least, a prima facie violation of Articles 2 and 3 of the Convention, entailing an obligation on the Government to undertake an effective investigation. Article 2 of the Convention reads as follows: “1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. 2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection.” Article 3 of the Convention provides: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 60. The applicant emphasised that it was incumbent on the United Kingdom authorities, which had sole knowledge of what happened to Tarek Hassan following his arrest, to establish that he was alive when he left detention and that he was not released into a situation which exposed him to the risk of death or serious mistreatment. His disappearance and death following detention by the United Kingdom gave rise to a prima facie case that Tarek was either killed by or with the involvement of United Kingdom personnel or exposed to a real risk of death or mistreatment by United Kingdom personnel by being released in a remote or otherwise dangerous environment, or being transferred into the hands of a third party. This engaged two issues under Articles 2 and 3. First, if the Government were unable to provide a plausible alternative explanation of the events leading to Tarek Hassan’s death, then the United Kingdom should be held liable for it. Secondly, there was an arguable case of a violation of Articles 2 and 3, engaging the procedural obligation to investigate. 2. The Government 61. The Government submitted that, in a case such as the present, no duty to investigate could arise under Article 2 or 3 unless there was at least an arguable case that the United Kingdom was responsible for ill-treating Tarek Hassan or causing his death, or that Tarek Hassan’s death occurred in territory that was controlled by the United Kingdom. This was not, on the evidence, a case in which the death occurred in the custody of the State. Such deaths might warrant a lower threshold or trigger for the investigative duty, but this was not the case here. Tarek Hassan’s death occurred many months after his release and in circumstances where there was nothing pointing to United Kingdom State involvement in the death. B. The Court’s assessment 62. According to the Court’s case-law, the obligation to protect the right to life under Article 2, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in [the] Convention”, requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force by agents of the State (see Al-Skeini and Others v. the United Kingdom [GC], no. 55721/07, § 163, ECHR 2011). In addition, Article 3 places a duty on the State to carry out an effective official investigation where an individual makes a “credible assertion” that he has suffered ill ‑ treatment in breach of that provision at the hands of State officials, or, in the absence of an express complaint, where there are other sufficiently clear indications that torture or ill-treatment might have occurred (see Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000 IV and Members (97) of the Gldani Congregation of Jehovah’s Witnesses v. Georgia, no. 71156/01, § 97, 3 May 2007, and the cases cited therein). 63. In the present case, with reference to the facts as assessed above by the Court, there is no evidence to suggest that Tarek Hassan was ill-treated while in detention, such as to give rise to an obligation on the respondent State under Article 3 to carry out an official investigation. Nor is there any evidence that the United Kingdom authorities were responsible in any way, directly or indirectly, for Tarek Hassan’s death, which occurred some four months after he was released from Camp Bucca, in a distant part of the country not controlled by United Kingdom forces. In the absence of any evidence of the involvement of United Kingdom State agents in the death, or even of any evidence that the death occurred within territory controlled by the United Kingdom, no obligation to investigate under Article 2 can arise. 64. In conclusion, the Court considers that the complaints under Articles 2 and 3 of the Convention are manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and must be declared inadmissible pursuant to Article 35 §§ 3 and 4 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 5 §§ 1, 2, 3 AND 4 OF THE CONVENTION 65. The applicant alleged that his brother’s capture by United Kingdom forces and detention in Camp Bucca gave rise to breaches of his rights under Article 5 §§ 1, 2, 3 and 4 of the Convention, which provide, as relevant: “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law; (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; ... 2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him. 3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial. 4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” The Government denied that Tarek Hassan fell within United Kingdom jurisdiction at any material time. In the alternative, they denied that his capture and detention, during an international armed conflict, gave rise to any violation of the provisions of Article 5. A. Jurisdiction 66. The applicant contended that at all material times his brother was within the jurisdiction of the United Kingdom, within the meaning of Article 1 of the Convention, which provides: “The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of [the] Convention.” 1. The parties’ submissions (a) The applicant 67. The applicant submitted that Tarek Hassan fell within the United Kingdom’s jurisdiction under Article 1 by virtue of the application of the “effective control of an area” principle, as articulated by the Court in Al ‑ Skeini and Others v. the United Kingdom [GC], no. 55721/07, § 138-140, ECHR 2011. He further submitted that the implication to be drawn from the judgment in Al-Skeini was that the United Kingdom had effective control over South East Iraq following the removal from power of the Ba’ath regime, which had been achieved by 1 May 2003. He pointed out that by 9 April 2003 coalition troops had taken control of Baghdad and that by mid ‑ April 2003, well before the capture of Tarek Hassan, statements made by the British Prime Minister and by the director of operations for the United States Joint Chiefs of Staff indicated that the coalition forces considered the war effectively over. With regard to the criteria identified by the Court as relevant to the question whether a State exercised effective control of an area, namely “the strength of the state’s military presence in the area” and “the extent to which its military, economic and political support for the local subordinate administration provides it with influence and control over the region”, there was no evidence of any significant practical difference between 23 April and 1 May 2003, and no good reason why there should be a difference in the legal position. 68. In the alternative, the applicant argued that jurisdiction was clearly established under the principle of State agent authority. It was the applicant’s submission that, according to the Court’s case-law, jurisdiction on this ground was not dependent on control over a building, area or vehicle but might also arise simply where there was physical control or authority over a person. Such authority and control over individuals did not have to be exclusive or total in order for jurisdiction to arise. Nor was it necessary for the State to be in a position to secure all the Convention rights to the person under its control. On this basis, the Court should reject the Government’s argument that bipartite or joint control was not sufficient for the purposes of Article 1 of the Convention. 69. The applicant submitted that, following his brother’s arrest during the night of 22/23 April 2003, when the latter was taken into the custody of United Kingdom soldiers, it could not realistically be disputed that the United Kingdom had authority and control, and therefore Article 1 jurisdiction, over him. In relation to the period after his admission to Camp Bucca, the United Kingdom continued to exercise authority and control over his detention. In particular, he was identified as a United Kingdom detainee on both the United Kingdom AP3-Ryan database and the United States Camp Buca database. The United Kingdom authorities were responsible for preparing a capture report and a detention report. Immediately upon his arrival at the Camp, he was taken to the JFIT compound, which was entirely controlled by United Kingdom forces, and he remained there until 25 April. Even following his transfer from the JFIT compound, he remained under United Kingdom control, since the United Kingdom authorities continued to assume responsibility over the well-being of United Kingdom detainees in Camp Bucca; they liaised with the ICRC about their treatment and the notification of their detention to their families; retained full rights of access and had a resident monitoring team at Camp Bucca to ensure compliance with domestic and international standards. The United Kingdom Provost Staff (military police) had an overseeing responsibility for United Kingdom detainees, on whom they checked daily, and United Kingdom detainees requiring medical attention would be treated in United Kingdom field hospitals. The United Kingdom also remained responsible for classifying detainees under Articles 4 and 5 of the Third Geneva Convention. There was nothing to suggest that the United States authorities asserted any basis of their own for detaining Tarek Hassan. The evidence of Major Wilson was that decisions as to whether to release a United Kingdom detainee were made by the United Kingdom. In Tarek Hassan’s case, it was JFIT which recommended he be released. Moreover, if a decision was made by the United Kingdom authorities to release a detainee, he could not simply be released by the United States, but had to be processed out of the Camp by the United Kingdom. In the applicant’s view, it was clear that in guarding and escorting United Kingdom detainees at Camp Bucca, the United States were acting as agents for the United Kingdom. This was confirmed by the fact that the United Kingdom would reimburse the United States for the costs involved in maintaining detainees. Holding detainees at the United States base was simply a matter of United Kingdom operational convenience. The position was no different in substance from the United Kingdom contracting-out the duties of guarding their detainees to private contractors. The United Kingdom could not contract out of its responsibility under the Convention for detainees and could not absolve itself of responsibility by placing detainees in the temporary custody of another organisation. (b) The Government 70. The Government emphasised that, according to the Court’s case-law, the exercise of extra-territorial jurisdiction remained exceptional. Furthermore, the concept of jurisdiction was not subject to the “living instrument” doctrine. In Al-Skeini, cited above, the Court found that the United Kingdom had jurisdiction in relation to the deaths of the applicants’ relatives because of a combination of two fact-specific circumstances. The first key element was the fact that the United Kingdom had, from 1 May 2003 until 24 June 2004, assumed authority and responsibility for the maintenance of security in South East Iraq as an occupying power. The second element was the fact that the deaths occurred during the course of security operations carried out by British forces pursuant to that assumption of authority and responsibility. In the absence of either of these factors, there would have been no jurisdictional link. In particular, the Court did not find jurisdiction on the basis of the “effective control of an area” doctrine and referred expressly to the findings of the Court of Appeal in the domestic Al-Skeini proceedings, that it would have been “utterly unreal” to suggest that in May 2003 the United Kingdom was in effective control and was obliged to secure to everyone in Basrah the rights and freedoms guaranteed by the Convention. On 23 April 2003, when the applicant’s brother was arrested, the United Kingdom had not yet assumed responsibility for security operations in South East Iraq; this did not take place until 1 May 2003. 71. The Government acknowledged that the Court had held that one situation where there might be jurisdiction under Article 1 was where the Contracting State’s agents operating outside its territory exercised “total and exclusive control” or “full and exclusive control” over an individual, for example where an individual was in the custody of the Contracting State’s agents abroad. However, they submitted that this basis of jurisdiction did not apply in the active hostilities phase of an international armed conflict, where the agents of the Contracting State in question were operating in territory of which they were not the occupying power. In such a case, the conduct of the Contracting State would, instead, be subject to all the requirements of international humanitarian law. Thus, anything occurring before 1 May 2003, including Tarek Hassan’s capture, transfer to United States custody in Camp Bucca and questioning by British forces on 25 April 2003, was not within the United Kingdom’s jurisdiction for the purposes of Article 1 of the Convention. 72. In addition, the Government contended that Tarek Hassan did not fall within United Kingdom jurisdiction following his admission to Camp Bucca on the separate ground that, at that time, he was transferred to the custody of the United States and ceased to be exclusively, or even primarily, under United Kingdom control. According to the Government, the Court’s case-law required that a Contracting State’s agents operating outside its territory exercise “total and exclusive control” or “full and exclusive control” over an individual in order for jurisdiction to be established; bipartite or joint control was not sufficient to establish jurisdiction for the purposes of Article 1. These conclusions were not affected by the fact that under paragraph 4 of the MOA (see paragraph 16 above) the United Kingdom could have requested the return of Tarek Hassan to its custody from the United States. There was no evidence that the United Kingdom had ever made such a request. Moreover, the fact that provision for making such a request was included in the MOA provided the clearest indication that, for as long as the person concerned remained under United States custody and control, he was not within the jurisdiction of the United Kingdom. This position of principle was supported by Article 12 of the Third Geneva Convention (see paragraph 33 above). The first paragraph of Article 12 stated that the “Detaining Power is responsible for the treatment given” to prisoners of war. However, the second paragraph made it clear that, following the transfer of a prisoner of war by the Detaining Power to another State Party to the Convention, “responsibility for the application of the Convention rests on the Power accepting them while they are in its custody”. Thus, during the time that Tarek Hassan was detained at Camp Bucca, responsibility for the application of the Third and Fourth Geneva Conventions in respect of him rested on the United States. 73. In any event, the Government contended that from 25 April 2003, when Tarek Hassan was determined to be a civilian who should be released, and was moved to the civilian holding area in Camp Bucca, neither the United Kingdom nor the United States purported to exercise a legal right to detain him. He stayed at the Camp only because the security situation rendered it irresponsible simply to have released him immediately. He was no longer being detained, but was in Camp Bucca awaiting transport to his place of capture. Similarly, while he was being transported by coach by United Kingdom forces to the place of his release, he was a free person and was not in the custody or control, or under the jurisdiction, of the United Kingdom. 2. The Court’s assessment 74. The Court recalls that in Al-Skeini, cited above, §§ 130-142, it summarised the applicable principles on jurisdiction within the meaning of Article 1 of the Convention exercised outside the territory of the Contracting State as follows: “130. ... As provided by [Article 1 of the Convention] the engagement undertaken by a Contracting State is confined to ‘securing’ (‘ reconnaître ’ in the French text) the listed rights and freedoms to persons within its own ‘jurisdiction’ (see Soering v. the United Kingdom, 7 July 1989, § 86, Series A no. 161; Banković and Others v. Belgium and Others [GC] (dec.), no. 52207/99, § 66, ECHR 2001‑ XII). ‘Jurisdiction’ under Article 1 is a threshold criterion. The exercise of jurisdiction is a necessary condition for a Contracting State to be able to be held responsible for acts or omissions imputable to it which give rise to an allegation of the infringement of rights and freedoms set forth in the Convention (see Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, § 311, ECHR 2004‑VII). (α) The territorial principle 131. A State’s jurisdictional competence under Article 1 is primarily territorial (see Soering, cited above, § 86; Banković, cited above, §§ 61 and 67; Ilaşcu, cited above, § 312). Jurisdiction is presumed to be exercised normally throughout the State’s territory ( Ilaşcu, cited above, § 312; Assanidze v. Georgia [GC], no. 71503/01, § 139, ECHR 2004‑II). Conversely, acts of the Contracting States performed, or producing effects, outside their territories can constitute an exercise of jurisdiction within the meaning of Article 1 only in exceptional cases ( Banković, cited above, § 67). 132. To date, the Court in its case-law has recognised a number of exceptional circumstances capable of giving rise to the exercise of jurisdiction by a Contracting State outside its own territorial boundaries. In each case, the question whether exceptional circumstances exist which require and justify a finding by the Court that the State was exercising jurisdiction extra-territorially must be determined with reference to the particular facts. (β) State agent authority and control 133. The Court has recognised in its case-law that, as an exception to the principle of territoriality, a Contracting State’s jurisdiction under Article 1 may extend to acts of its authorities which produce effects outside its own territory (see Drozd and Janousek v. France and Spain, judgment of 26 June 1992, Series A no. 240, § 91; Loizidou v. Turkey (preliminary objections), 23 March 1995, § 62, Series A no. 310; Loizidou v. Turkey (merits), 18 December 1996, § 52, Reports of Judgments and Decisions 1996‑VI; and Banković, cited above, 69). The statement of principle, as it appears in Drozd and Janousek and the other cases just cited, is very broad: the Court states merely that the Contracting Party’s responsibility ‘can be involved’ in these circumstances. It is necessary to examine the Court’s case-law to identify the defining principles. 134. First, it is clear that the acts of diplomatic and consular agents, who are present on foreign territory in accordance with provisions of international law, may amount to an exercise of jurisdiction when these agents exert authority and control over others ( Banković, cited above, § 73; see also X v. Federal Republic of Germany, no. 1611/62, Commission decision of 25 September 1965, Yearbook of the European Convention on Human Rights, vol. 8, pp. 158 and 169; X v. the United Kingdom, no. 7547/76, Commission decision of 15 December 1977; WM v. Denmark, no. 17392/90, Commission decision of 14 October 1993). 135. Secondly, the Court has recognised the exercise of extra-territorial jurisdiction by a Contracting State when, through the consent, invitation or acquiescence of the Government of that territory, it exercises all or some of the public powers normally to be exercised by that Government ( Banković, cited above, § 71). Thus where, in accordance with custom, treaty or other agreement, authorities of the Contracting State carry out executive or judicial functions on the territory of another State, the Contracting State may be responsible for breaches of the Convention thereby incurred, as long as the acts in question are attributable to it rather than to the territorial State (see Drozd and Janousek, cited above; Gentilhomme and Others v. France, nos. 48205/99, 48207/99 and 48209/99, judgment of 14 May 2002; and also X and Y v. Switzerland, nos. 7289/75 and 7349/76, Commission’s admissibility decision of 14 July 1977, DR 9, p. 57). 136. In addition, the Court’s case-law demonstrates that, in certain circumstances, the use of force by a State’s agents operating outside its territory may bring the individual thereby brought under the control of the State’s authorities into the State’s Article 1 jurisdiction. This principle has been applied where an individual is taken into the custody of State agents abroad. For example, in Öcalan v. Turkey [GC], no. 46221/99, § 91, ECHR 2005‑IV, the Court held that ‘directly after being handed over to the Turkish officials by the Kenyan officials, the applicant was effectively under Turkish authority and therefore within the “jurisdiction” of that State for the purposes of Article 1 of the Convention, even though in this instance Turkey exercised its authority outside its territory’. In Issa and Others v. Turkey, no. 31821/96, 16 November 2004, the Court indicated that, had it been established that Turkish soldiers had taken the applicants’ relatives into custody in Northern Iraq, taken them to a nearby cave and executed them, the deceased would have been within Turkish jurisdiction by virtue of the soldiers’ authority and control over them. In Al ‑ Saadoon and Mufdhi v. the United Kingdom (dec.), no. 61498/08, §§ 86-89, 30 June 2009, the Court held that two Iraqi nationals detained in British-controlled military prisons in Iraq fell within the jurisdiction of the United Kingdom, since the United Kingdom exercised total and exclusive control over the prisons and the individuals detained in them. Finally, in Medvedyev and Others v. France [GC], no. 3394/03, § 67, ECHR 2010-..., the Court held that the applicants were within French jurisdiction by virtue of the exercise by French agents of full and exclusive control over a ship and its crew from the time of its interception in international waters. The Court does not consider that jurisdiction in the above cases arose solely from the control exercised by the Contracting State over the buildings, aircraft or ship in which the individuals were held. What is decisive in such cases is the exercise of physical power and control over the person in question. 137. It is clear that, whenever the State through its agents exercises control and authority over an individual, and thus jurisdiction, the State is under an obligation under Article 1 to secure to that individual the rights and freedoms under Section 1 of the Convention that are relevant to the situation of that individual. In this sense, therefore, the Convention rights can be ‘divided and tailored’ (compare Banković, cited above, § 75). (γ) Effective control over an area 138. Another exception to the principle that jurisdiction under Article 1 is limited to a State’s own territory occurs when, as a consequence of lawful or unlawful military action, a Contracting State exercises effective control of an area outside that national territory. The obligation to secure, in such an area, the rights and freedoms set out in the Convention, derives from the fact of such control, whether it be exercised directly, through the Contracting State’s own armed forces, or through a subordinate local administration ( Loizidou (preliminary objections), cited above, § 62; Cyprus v. Turkey [GC], no. 25781/94, § 76, ECHR 2001‑IV, Banković, cited above, § 70; Ilaşcu, cited above, §§ 314-316; Loizidou (merits), cited above, § 52). Where the fact of such domination over the territory is established, it is not necessary to determine whether the Contracting State exercises detailed control over the policies and actions of the subordinate local administration. The fact that the local administration survives as a result of the Contracting State’s military and other support entails that State’s responsibility for its policies and actions. The controlling State has the responsibility under Article 1 to secure, within the area under its control, the entire range of substantive rights set out in the Convention and those additional Protocols which it has ratified. It will be liable for any violations of those rights ( Cyprus v. Turkey, cited above, §§ 76-77). 139. It is a question of fact whether a Contracting State exercises effective control over an area outside its own territory. In determining whether effective control exists, the Court will primarily have reference to the strength of the State’s military presence in the area (see Loizidou (merits), cited above, §§ 16 and 56; Ilaşcu, cited above, § 387). Other indicators may also be relevant, such as the extent to which its military, economic and political support for the local subordinate administration provides it with influence and control over the region (see Ilaşcu, cited above, §§ 388-394). 140. The ‘effective control’ principle of jurisdiction set out above does not replace the system of declarations under Article 56 of the Convention (formerly Article 63) which the States decided, when drafting the Convention, to apply to territories overseas for whose international relations they were responsible. Article 56 § 1 provides a mechanism whereby any State may decide to extend the application of the Convention, ‘with due regard ... to local requirements’, to all or any of the territories for whose international relations it is responsible. The existence of this mechanism, which was included in the Convention for historical reasons, cannot be interpreted in present conditions as limiting the scope of the term ‘jurisdiction’ in Article 1. The situations covered by the ‘effective control’ principle are clearly separate and distinct from circumstances where a Contracting State has not, through a declaration under Article 56, extended the Convention or any of its Protocols to an overseas territory for whose international relations it is responsible (see Loizidou (preliminary objections ), cited above, §§ 86-89 and Quark Fishing Ltd v. the United Kingdom (dec.), no. 15305/06, ECHR 2006-...). (δ) The Convention legal space (‘ espace juridique’ ) 141. The Convention is a constitutional instrument of European public order (see Loizidou v. Turkey (preliminary objections), cited above, § 75). It does not govern the actions of States not Parties to it, nor does it purport to be a means of requiring the Contracting States to impose Convention standards on other States (see Soering, cited above, § 86). 142. The Court has emphasised that, where the territory of one Convention State is occupied by the armed forces of another, the occupying State should in principle be held accountable under the Convention for breaches of human rights within the occupied territory, because to hold otherwise would be to deprive the population of that territory of the rights and freedoms hitherto enjoyed and would result in a ‘vacuum’ of protection within the ‘Convention legal space’ (see Loizidou (merits), cited above, §78; Banković, cited above, § 80). However, the importance of establishing the occupying State’s jurisdiction in such cases does not imply, a contrario, that jurisdiction under Article 1 of the Convention can never exist outside the territory covered by the Council of Europe Member States. The Court has not in its case-law applied any such restriction (see amongst other examples Öcalan, Issa, Al-Saadoon and Mufdhi, Medvedyev, all cited above).” 75. In Al-Skeini, cited above, the Court found that the applicants’ relatives fell within United Kingdom jurisdiction because during the period 1 May 2003-28 June 2004 the United Kingdom had assumed authority for the maintenance of security in South East Iraq and the relatives were killed in the course of security operations carried out by United Kingdom troops pursuant to that assumption of authority ( Al-Skeini §§ 143-150). In the light of this finding, it was unnecessary to determine whether jurisdiction also arose on the ground that the United Kingdom was in effective military control of South East Iraq during that period. However, the statement of facts in Al-Skeini included material which tended to demonstrate that the United Kingdom was far from being in effective control of the south-eastern area which it occupied, and this was also the finding of the Court of Appeal, which heard evidence on this question in the domestic Al ‑ Skeini proceedings (see Al ‑ Skeini, cited above, §§ 20-23 and § 80). The present case concerns an earlier period, before the United Kingdom and its coalition partners had declared that the active hostilities phase of the conflict had ended and that they were in occupation, and before the United Kingdom had assumed responsibility for the maintenance of security in the South East of the country (see Al-Skeini, cited above, §§ 10-11). However, as in Al-Skeini, the Court does not find it necessary to decide whether the United Kingdom was in effective control of the area during the relevant period, because it finds that the United Kingdom exercised jurisdiction over Tarek Hassan on another ground. 76. Following his capture by British troops early in the morning of 23 April 2003, until he was admitted to Camp Bucca later that afternoon, Tarek Hassan was within the physical power and control of the United Kingdom soldiers and therefore fell within United Kingdom jurisdiction under the principles outlined in paragraph 136 of Al-Skeini, set out above. The Government, in their observations, acknowledged that where State agents operating extra-territorially take an individual into custody, this is a ground of extra ‑ territorial jurisdiction which has been recognised by the Court. However, they submitted that this basis of jurisdiction should not apply in the active hostilities phase of an international armed conflict, where the agents of the Contracting State are operating in territory of which they are not the occupying power, and where the conduct of the State will instead be subject to the requirements of international humanitarian law. 77. The Court is not persuaded by this argument. Al-Skeini was also concerned with a period when international humanitarian law was applicable, namely the period when the United Kingdom and its coalition partners were in occupation of Iraq. Nonetheless, in that case the Court found that the United Kingdom exercised jurisdiction under Article 1 of the Convention over the applicants’ relatives. Moreover, to accept the Government’s argument on this point would be inconsistent with the case ‑ law of the International Court of Justice, which has held that international human rights law and international humanitarian law may apply concurrently (see paragraphs 35-37 above). As the Court has observed on many occasions, the Convention cannot be interpreted in a vacuum and should so far as possible be interpreted in harmony with other rules of international law of which it forms part (see, for example, Al-Adsani v. the United Kingdom [GC], no. 35763/97, § 55, ECHR 2001 ‑ XI). This applies equally to Article 1 as to the other articles of the Convention. 78. With regard to the period after Tarek Hassan entered Camp Bucca, the Government raise an alternative ground for excluding jurisdiction, namely that his admission to the Camp involved a transfer of custody from the United Kingdom to the United States. However, notwithstanding the Government’s textual arguments based on the terms of the MOA and on Article 12 of the Third Geneva Convention (see paragraphs 16, 33 and 72 above), the Court is of the view that, having regard to the arrangements operating at Camp Bucca, during this period Tarek Hassan continued to fall under the authority and control of United Kingdom forces. He was admitted to the Camp as a United Kingdom prisoner. Shortly after his admission, he was taken to the JFIT compound, which was entirely controlled by United Kingdom forces (see paragraph 15 above). In accordance with the MOA which set out the various responsibilities of the United Kingdom and the United States in relation to individuals detained at the Camp, the United Kingdom had responsibility for the classification of United Kingdom detainees under the Third and Fourth Geneva Conventions and for deciding whether they should be released (see paragraph 16 above). This is what happened following Tarek Hassan’s interrogation at the JFIT compound, when the United Kingdom authorities decided that he was a civilian who did not pose a threat to security and ordered that he should be released as soon as practicable. While it is true that certain operational aspects relating to Tarek Hassan’s detention at Camp Bucca were transferred to United States forces, in particular the tasks of escorting him to and from the JFIT compound and guarding him elsewhere in the Camp, the United Kingdom retained authority and control over all aspects of the detention relevant to the applicant’s complaints under Article 5. 79. Finally, the Court notes the Government’s argument that once Tarek Hassan had been cleared for release and taken to the civilian holding area, he was no longer a detainee and therefore fell outside United Kingdom jurisdiction. In the Court’s view, however, it appears clear that Tarek Hassan remained in the custody of armed military personnel and under the authority and control of the United Kingdom until the moment he was let off the bus that took him from the Camp. 80. In conclusion, therefore, the Court finds that Tarek Hassan fell within the jurisdiction of the United Kingdom from the moment of his capture by United Kingdom troops, at Umm Qasr on 23 April 2003, until his release from the bus that took him from Camp Bucca to the drop-off point, most probably Umm Qasr on 2 May 2003 (see paragraph 55 above). B. The merits of the complaints under Article 5 §§ 1, 2, 3 and 4 1. The parties’ submissions (a) The applicant 81. The applicant did not accept that Tarek Hassan’s arrest and detention fell within the active combat phase of an international armed conflict, since by 9 April 2003 coalition troops had taken control of Baghdad and removed the Ba’ath Party from power. However, even if the arrest and detention of Tarek Hassan had taken place in the active combat phase, this would not displace the application of the Convention. Article 15 created a specific power to take measures derogating from the Convention to the extent strictly required by the exigencies of “war or other public emergency threatening the life of the nation”. There had been no derogation in this case and there could be no implied displacement of Convention rights. It was important to remember the historical context in which the Convention was drafted, namely the aftermath of a global conflict. With the memory of war still fresh, the drafters addressed their minds to the question whether the fundamental rights the Convention recognised should apply differently in wartime and decided that they should only (i) insofar as necessary to deal with the exigencies of a war or public emergency, (ii) provided the State’s other obligations under international law were respected and (iii) provided the State derogated formally and openly. The result was Article 15. If the drafters had intended to create a regime under which human rights would automatically be displaced or re-written in times of international conflict, they would have done so. 82. The applicant did not accept that there was any evidence of State practice by High Contracting Parties to the effect that the Convention need not be complied with in detaining actual or suspected combatants in the course of international armed conflict. Even if there were, there was no evidence of accompanying opinio juris. Moreover, even if there were both, the function of the Court under Article 19 was to ensure the observance of the Convention, not to apply it only where States were in the habit of applying it. Nor did the Court’s case-law, for example Varnava and Others v. Turkey [GC], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, § 185, ECHR 2009, assist the Government’s case. In Varnava the Court held that the relevant rules of international humanitarian law expanded the obligations on States under Article 2; it did not support the proposition that fundamental rights were automatically curtailed in wartime. Inherent in the concept of “interpreting a provision in so far as possible in the light of general principles of international law” was recognition that there was a range of possible meanings and that some proposed interpretations would fall outside that range. The Government’s “displacement” argument was essentially that Convention rights must be read as if they contained a wide “wartime” exception which they did not actually contain. Such an approach was not supported by Varnava. Finally, the applicant submitted that the Government’s reliance on the International Court of Justice’s advisory opinion on The Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory was hard to understand, since in that opinion the International Court of Justice expressly found that derogation was the only means of displacing a provision of international human rights law (see paragraph 36 above). 83. The Court had often applied the Convention in situations of armed conflict and recognised that in principle it was not displaced (the applicant referred to the following cases: Ahmet Özkan and Others v. Turkey, no. 21689/93, §§ 85 and 319, 6 April 2004; Varnava and Others v. Turkey [GC], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, § 191, ECHR 2009; Al-Jedda, cited above, § 105; Al-Skeini, cited above, §§ 164-167). This was, moreover, supported by the advisory opinion of the International Court of Justice in The Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, § 106 (see paragraph 36 above). In the applicant’s submission, the International Court of Justice was recognising in this passage that there might be some rights that fall within the scope of international humanitarian law but to which no human rights convention extended. In the applicant’s view, the position was that at most, the provisions of international humanitarian law might influence the interpretation of the provisions of the Convention. For example, they might be relevant in determining what acts were strictly required by the exigencies of the situation for the purposes of a derogation from Article 2. In the context of Article 5, this might, in an appropriate case, inform the Court’s interpretation of “competent legal authority” and “offence” in Article 5 § 1(c). However, it was not right that Article 5 was displaced in circumstances in which the Geneva Conventions were engaged. The Convention was a treaty aimed at protecting fundamental rights. Its provisions should not be distorted, still less ignored altogether, to make life easier for States which failed to use the mechanism within the Convention that expressly dictated how they were to reconcile its provisions with the exigencies of war. 84. The applicant further contended that, in any event, the Government had not identified anything that United Kingdom forces were required to do by the Geneva Conventions that would have obliged them to act contrary to Article 5. The Iraq war was a non-international armed conflict following the collapse of Saddam Hussein’s forces and the occupation by coalition forces. There was considerably less treaty law applicable to non-international armed conflicts than to international armed conflicts. International humanitarian law stipulated minimum requirements on States in situations of armed conflict but did not provide powers. In reality, the Government’s submission that the Convention should be “displaced” was an attempt to re ‑ argue the question of Article 1 jurisdiction which was decided in Al ‑ Skeini (cited above). If the Government’s position were correct, it would have the effect of wholly depriving victims of a contravention of any effective remedy, since the Third and Fourth Geneva Conventions were not justiciable at the instance of an individual. Such a narrowing of the rights of individuals in respect of their treatment by foreign armed forces would be unprincipled and wrong. 85. Finally, even if the Court were to decide that Article 5 should be interpreted in the light of the Third and Fourth Geneva Conventions, Tarek Hassan was arrested and detained as a means of inducing the applicant to surrender. The detention was arbitrary, it did not fall within any of the lawful categories under Article 5 § 1 and it was not even permissible under international humanitarian law. (b) The Government 86. The Government submitted that the drafters of the Convention did not intend that an alleged victim of extra-territorial action in the active phase of an international armed conflict, such as a prisoner of war protected by the Third Geneva Convention, who might nonetheless wish to allege a breach of Article 5, would benefit from the protections of the Convention. There was nothing to suggest any such intent within the Convention or its travaux préparatoires, or indeed in the wording or travaux préparatoires of the 1949 Geneva Conventions, which would have been at the forefront of the minds of those drafting the Convention as establishing the relevant applicable legal regime. Furthermore, such intent would be inconsistent with the practical realities of conduct of active hostilities in an international armed conflict, and also with such Convention jurisprudence as there was bearing on the issue. 87. It was the Government’s primary contention that the relevant events took place outside the jurisdiction of the United Kingdom. In the alternative, if the Court were to find that the United Kingdom had jurisdiction over Tarek Hassan during his detention, the Government contended that Article 5 had to be interpreted and applied in conformity and harmony with international law. Where provisions of the Convention fell to be applied in the context of an international armed conflict, and in particular the active phase of such a conflict, the application had to take account of international humanitarian law, which applied as the lex specialis, and might operate to modify or even displace a given provision of the Convention. Thus, in Cyprus v. Turkey, nos. 6780/74 and 6950/75, Report of the Commission of 10 July 1976, volume 1, the Commission did not consider it necessary to address the question of breach of Article 5 where persons were detained under the Third Geneva Convention in the context of the taking of prisoners of war. Moreover, it had been the consistent approach of the International Court of Justice that international humanitarian law applied as lex specialis in the context of an international armed conflict in circumstances where a given human rights treaty also applied. This view was supported by the Report of the Study Group of the International Law Commission on the “Fragmentation of International Law” (see paragraph 38 above) and by academic writers, such as the authors of Fleck’s “The Handbook of International Humanitarian Law” and Gill and Fleck’s “The Handbook of the International Law of Military Operations”. 88. The Government argued that the right to liberty under Article 5 of the Convention had to be considered in the context of the fundamental importance of capture and detention of actual or suspected combatants in armed conflict. It could not be, and it was not so, that a Contracting State, when its armed forces were engaged in active hostilities in an armed conflict outside its own territory, had to afford the procedural safeguards of Article 5 to enemy combatants whom it took as prisoners of war, or suspected enemy combatants whom it detained pending determination of whether they were entitled to such status. In addition, insofar as the issue arose in the present case, the same principle had to apply in relation to the detention of civilians where this was “absolutely necessary” for security reasons, in accordance with Article 42 of the Fourth Geneva Convention (see paragraph 33 above). In the present case, since Tarek Hassan was captured and initially detained as a suspected combatant, Article 5 was displaced by international humanitarian law as lex specialis, or modified so as to incorporate or allow for the capture and detention of actual or suspected combatants in accordance with the Third and/or Fourth Geneva Conventions, such that there was no breach by the United Kingdom with respect to the capture and detention of Tarek Hassan. 89. In the alternative, if the Court were to find that Article 5 applied and was not displaced or modified in situations of armed conflict, the Government submitted that the list in Article 5 § 1 of permissible purposes of detention had to be interpreted in such a way that it took account of and was compatible with the applicable lex specialis, namely international humanitarian law. The taking of prisoners of war pursuant to the Third Geneva Convention, and the detention of civilians pursuant to the Fourth Geneva Convention, had to be a lawful category of detention under Article 5 § 1; it fell most readily as a “lawful detention” within Article 5 § 1(c). In this special context, the concept of “offence” within that provision could correctly be interpreted to include participation as an enemy combatant and/or challenging the security of the Detaining Power within Article 42 of the Fourth Geneva Convention. The key question for the purposes of Article 5 § 1 would then be whether the detention of Tarek Hassan was a “lawful detention” in the context of an international armed conflict; the Government submitted that it evidently was. Tarek Hassan was encountered by British forces as a “gunman”, armed with an AK-47 machine gun, on the roof of a house belonging to a general of the Al-Quds Army, where firearms as well as intelligence material were found. He was captured as a suspected combatant and British forces were lawfully entitled under international humanitarian law to capture and detain him until his status was finally determined. 90. The Government recognised that difficult issues might arise as to the applicability of Article 15 in relation to a case such as the present. Consistently with the practice of all other Contracting Parties which had been involved in such operations, the United Kingdom had not derogated; there had been no need to do so, since the Convention could and did accommodate detention in such cases, having regard to the lex specialis, international humanitarian law. The inclusion of Article 15 in the Convention in no sense indicated that, in time of war or public emergency threatening the life of the nation, obligations under the Convention would at all times be interpreted in exactly the same way as in peacetime. Any argument that, unless there had been a derogation under Article 15, Article 5 should be interpreted and applied regardless of the context and the detailed rules of international humanitarian law governing detention of suspected combatants would risk diminishing the protections available to combatants or civilians (in effect, by precipitating derogations by concerned States). It would also be inconsistent with a seemingly universal State practice in terms of the detention of actual or suspected combatants in international armed conflicts, as well as the jurisprudence of the Court and the International Court of Justice, which had made it clear that the application of international humanitarian law as lex specialis was a general principle, and not one that depended on whether there had been a derogation under an applicable human rights treaty. (c) The third party 91. In the third party submissions filed in the present case, the Human Rights Centre of the University of Essex emphasised that, as the Court had held in its case-law, the Convention should be interpreted in harmony with other rules of public international law, of which it forms part. Such a principle was desirable and necessary, to avoid States being faced with irreconcilable legal obligations and controversial results. This was particularly important with relation to the detention regime applicable in international armed conflicts, since this regime was specifically designed for the situation in question and since the Third and Fourth Geneva Conventions enjoyed universal ratification. There was one sentence in the Court’s judgment in Al-Jedda v. the United Kingdom [GC], no. 27021/08, § 107, ECHR 2011, which might be read as suggesting that the Court would only take account of international humanitarian law where it imposed an obligation, and not where it authorised a course of conduct, namely where it was stated: “... the Court does not find it established that international humanitarian law places an obligation on an Occupying Power to use indefinite internment without trial”. However, it was the view of the third party that, in the context of the judgment, it appeared that the Court was not looking at international humanitarian law in its own right but as a source of possible rules which could be read into a Security Council resolution. The United Kingdom Government could have chosen to raise international humanitarian law as an independent basis for detention but chose instead to rely exclusively on the Security Council resolution. The sentence quoted from Al-Jedda did not indicate that the Court would take account of international humanitarian law only where it imposed an obligation on States. 92. The third party pointed out that, in common with many areas of international law which had been developed as comprehensive regimes for particular fields of activity, the law of armed conflict and international humanitarian law (hereafter, “international humanitarian law”) had developed its own internal coherence and understandings. The key underlying assumption was that this law represented a balance between military necessity and humanitarian considerations. This meant that there could be no appeal to military necessity outside the treaty rule, which itself took account of military exigencies. A second underlying principle was that this field of law was based not on rights, but on the obligations of parties to a conflict. Thirdly, the rules applicable to an individual depended on his status as a member of a group, for example a combatant or a civilian. Fourth, while reference was often made to the “principles” of international humanitarian law, the principles themselves were not legal rules; the rules were to be found in treaty provisions which represented the articulation of those principles in legally binding form. It was clear, therefore, that the internal coherence of international humanitarian law was significantly different from that of human rights law. 93. Of the relationships between various fields of international law, that between international humanitarian law and international human rights law was not alone in being problematical, but it had received the most attention. By virtue of the express terms of certain human rights treaties, they continued to apply in situations of “war or other public emergency”, while the rules on international armed conflicts applied whenever there was an armed conflict between two or more States, including where one State occupied part or all of the territory of another. This meant that certain human rights treaties remained applicable, possibly in a modified way, in circumstances in which the law of armed conflict was also applicable. The International Court of Justice had addressed the relationship on three occasions (see paragraphs 35-37 above). Certain elements emerged clearly from this case-law. First, that the applicability of international humanitarian law did not displace the jurisdiction of a human rights body. That resulted from the finding that human rights law remained applicable in all circumstances. Secondly, where international humanitarian law was applicable, a human rights body had two choices. Either it had to apply human rights law through the lens of international humanitarian law or it had to blend human rights law and international humanitarian law together. That was the only possible interpretation of certain matters being the province of both bodies of rules, whilst others were regulated by international humanitarian law. The reference to lex specialis was unhelpful, which might account for the fact that the International Court of Justice did not refer to it in the Congo judgment (see paragraph 37 above). Use of this term had served to obfuscate the debate rather than provide clarification. 94. The International Court of Justice had provided apparently conflicting guidance on the question of the need for derogation before a State could rely on international humanitarian law. If the basis for using international humanitarian law at all was that human rights bodies should take account of other areas of international law, that might be thought to point to its use whether or not a State had derogated and whether or not it invoked international humanitarian law. On the other hand, where the State had done neither, the human rights body might wish to refer to the applicability of international humanitarian law, whilst saying that the State had chosen to be judged by the higher standard of peacetime human rights law, although such an approach might run the risk of appearing disconnected from reality. Where the State had not derogated but had relied on international humanitarian law, it would be open to the human rights body either to take account of international humanitarian law or to insist that the only way of modifying international human rights obligations was by derogation. 95. As regards the interplay between the two regimes, there could be no single applicable rule. Any given situation was likely to require elements of both bodies of law working together, but the balance and interplay would vary. Accordingly, there might be situations, such as the detention of prisoners of war, in which the combination of criteria lead to the conclusion that international humanitarian law would carry more weight, and determination of human rights violations regarding issues such as grounds and review of detention would be based on the relevant rules of international humanitarian law. Even in such contexts, however, human rights law would not be under absolute subjection to international humanitarian law. For example, if there were allegations of ill treatment, human rights law would still assist in determining issues such as the specificities of the acts which constituted a violation. From the perspective of the human rights body, it would be advantageous to use human rights law as the first step to identify the issues that needed to be addressed, for example, periodicity of review of lawfulness of detention, access to information about reasons of detention, legal assistance before the review mechanism. The second step would be to undertake a contextual analysis using both international humanitarian law and human rights law, in the light of the circumstances of the case at hand. On condition that the human rights body presented its analysis with sufficient coherence and clarity, the decisions generated would provide guidance to both States and armed forces ahead of future action. It went without saying that the approaches and the result had to be capable of being applied in practice in situations of armed conflict. 2. The Court’s assessment (a) The general principles to be applied 96. Article 5 § 1 of the Convention sets out the general rule that “[e]veryone has the right to liberty and security of the person” and that “[n]o one shall be deprived of his liberty” except in one of the circumstances set out in sub-paragraphs (a) to (f). 97. It has long been established that the list of grounds of permissible detention in Article 5 § 1 does not include internment or preventive detention where there is no intention to bring criminal charges within a reasonable time (see Lawless v. Ireland (no. 3), 1 July 1961, §§ 13 and 14, Series A no. 3; Ireland v. the United Kingdom, 18 January 1978, § 196, Series A no. 25; Guzzardi v. Italy, 6 November 1980, § 102, Series A no. 39; Jėčius v. Lithuania, no. 34578/97, §§ 47-52, ECHR 2000-IX; and Al ‑ Jedda, cited above, § 100). Moreover, the Court considers that there are important differences of context and purpose between arrests carried out during peacetime and the arrest of a combatant in the course of an armed conflict. It does not take the view that detention under the powers provided for in the Third and Fourth Geneva Conventions is congruent with any of the categories set out in subparagraphs (a) to (f). Although Article 5 § 1(c) might at first glance seem the most relevant provision, there does not need to be any correlation between security internment and suspicion of having committed an offence or risk of the commission of a criminal offence. As regards combatants detained as prisoners of war, since this category of person enjoys combatant privilege, allowing them to participate in hostilities without incurring criminal sanctions, it would not be appropriate for the Court to hold that this form of detention falls within the scope of Article 5 § 1(c). 98. In addition, Article 5 § 2 requires that every detainee should be informed promptly of the reasons for his arrest and Article 5 § 4 requires that every detainee should be entitled to take proceedings to have the lawfulness of his detention decided speedily by a court. Article 15 of the Convention provides that “[i]n time of war or other public emergency threatening the life of the nation”, a Contracting State may take measures derogating from certain of its obligations under the Convention, including Article 5. In the present case, the United Kingdom did not purport to derogate under Article 15 from any of its obligations under Article 5. 99. This is the first case in which a respondent State has requested the Court to disapply its obligations under Article 5 or in some other way to interpret them in the light of powers of detention available to it under international humanitarian law. In particular, in Al-Jedda, cited above, the United Kingdom Government did not contend that Article 5 was modified or displaced by the powers of detention provided for by the Third and Fourth Geneva Conventions. Instead they argued that the United Kingdom was under an obligation to the United Nations Security Council to place the applicant in internment and that, because of Article 103 of the United Nations Charter, this obligation had to take primacy over the United Kingdom’s obligations under the Convention. It was the Government’s case that an obligation to intern the applicant arose from the text of United Nations Security Council Resolution 1546 and annexed letters and also because the Resolution had the effect of maintaining the obligations placed on occupying powers under international humanitarian law, in particular Article 43 of the Hague Regulations (see Al-Jedda, cited above, § 107). The Court found that no such obligation arose. It was only before the Commission, in Cyprus v. Turkey, nos. 6780/74 and 6950/75, Report of the Commission of 10 July 1976, volume 1, that a question arose similar to that in the present case, namely whether it was compatible with the obligations under Article 5 of the Convention to detain a person under the Third and Fourth Geneva Conventions in the absence of a valid derogation under Article 15 of the Convention. In its report, the Commission refused to examine possible violations of Article 5 with regard to detainees accorded prisoner of war status, and took account of the fact that both Cyprus and Turkey were parties to the Third Geneva Convention (see § 313 of the Report). The Court has not, until now, had the opportunity to review the approach of the Commission and to determine such a question itself. 100. The starting point for the Court’s examination must be its constant practice of interpreting the Convention in the light of the rules set out in the Vienna Convention on the Law of Treaties of 23 May 1969 (see Golder v. the United Kingdom, judgment of 21 February 1975, Series A no. 18, § 29, and many subsequent cases). Article 31 of the Vienna Convention, which contains the “general rule of interpretation” (see paragraph 34 above), provides in paragraph 3 that there shall be taken into account, together with the context, (a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions; (b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; and (c) any relevant rules of international law applicable in the relations between the parties. 101. There has been no subsequent agreement between the High Contracting Parties as to the interpretation of Article 5 in situations of international armed conflict. However, in respect of the criterion set out in Article 31 § 3(b) of the Vienna Convention (see paragraph 34 above), the Court has previously stated that a consistent practice on the part of the High Contracting Parties, subsequent to their ratification of the Convention, could be taken as establishing their agreement not only as regards interpretation but even to modify the text of the Convention (see, mutatis mutandis, Soering v. the United Kingdom, 7 July 1989, §§ 102-103, Series A no. 161 and Al-Saadoon and Mufdhi v. the United Kingdom, no. 61498/08, § 120, ECHR 2010). The practice of the High Contracting Parties is not to derogate from their obligations under Article 5 in order to detain persons on the basis of the Third and Fourth Geneva Conventions during international armed conflicts. As the Court noted in Banković and Others v. Belgium and Others (dec.) [GC], no. 52207/99, § 62, ECHR 2001 ‑ XII, although there have been a number of military missions involving Contracting States acting extra ‑ territorially since their ratification of the Convention, no State has ever made a derogation pursuant to Article 15 of the Convention in respect of these activities. The derogations that have been lodged in respect of Article 5 have concerned additional powers of detention claimed by States to have been rendered necessary as a result of internal conflicts or terrorist threats to the Contracting State (see, for example, Brannigan and McBride v. the United Kingdom, 26 May 1993, Series A no. 258 ‑ B; Aksoy v. Turkey, 18 December 1996, Reports of Judgments and Decisions 1996-VI; and A. and Others v. the United Kingdom [GC], no. 3455/05, ECHR 2009; see also paragraphs 40-41 above). Moreover, it would appear that the practice of not lodging derogations under Article 15 of the Convention in respect of detention under the Third and Fourth Geneva Conventions during international armed conflicts is mirrored by State practice in relation to the International Covenant for the Protection of Civil and Political Rights. Similarly, although many States have interned persons pursuant to powers under the Third and Fourth Geneva Conventions in the context of international armed conflicts subsequent to ratifying the Covenant, no State has explicitly derogated under Article 4 of the Covenant in respect of such detention (see paragraph 42 above), even subsequent to the advisory opinions and judgment referred to above, where the International Court of Justice made it clear that States’ obligations under the international human rights instruments to which they were parties continued to apply in situations of international armed conflict (see paragraphs 35-37 above). 102. Turning to the criterion contained in Article 31 § 3(c) of the Vienna Convention (see paragraph 34 above), the Court has made it clear on many occasions that the Convention must be interpreted in harmony with other rules of international law of which it forms part (see paragraph 77 above). This applies no less to international humanitarian law. The four Geneva Conventions of 1949, intended to mitigate the horrors of war, were drafted in parallel to the European Convention on Human Rights and enjoy universal ratification. The provisions in the Third and Fourth Geneva Conventions relating to internment, at issue in the present application, were designed to protect captured combatants and civilians who pose a security threat. The Court has already held that Article 2 of the Convention should “be interpreted in so far as possible in light of the general principles of international law, including the rules of international humanitarian law which play an indispensable and universally-accepted role in mitigating the savagery and inhumanity of armed conflict” (see Varnava and Others v. Turkey [GC], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, § 185, ECHR 2009), and it considers that these observations apply equally in relation to Article 5. Moreover, the International Court of Justice has held that the protection offered by human rights conventions and that offered by international humanitarian law co-exist in situations of armed conflict (see paragraphs 35-37 above). In its judgment Armed Activities on the Territory of the Congo, the International Court of Justice observed, with reference to its advisory opinion concerning The Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, that “[a]s regards the relationship between international humanitarian law and human rights law, there are thus three possible situations: some rights may be exclusively matters of international humanitarian law; others may be exclusively matters of human rights law; yet others may be matters of both these branches of international law” (see paragraphs 36 and 37 above). The Court must endeavour to interpret and apply the Convention in a manner which is consistent with the framework under international law delineated by the International Court of Justice. 103. In the light of the above considerations, the Court accepts the Government’s argument that the lack of a formal derogation under Article 15 does not prevent the Court from taking account of the context and the provisions of international humanitarian law when interpreting and applying Article 5 in this case. 104. Nonetheless, and consistently with the case-law of the International Court of Justice, the Court considers that, even in situations of international armed conflict, the safeguards under the Convention continue to apply, albeit interpreted against the background of the provisions of international humanitarian law. By reason of the co-existence of the safeguards provided by international humanitarian law and by the Convention in time of armed conflict, the grounds of permitted deprivation of liberty set out in subparagraphs (a) to (f) of that provision should be accommodated, as far as possible, with the taking of prisoners of war and the detention of civilians who pose a risk to security under the Third and Fourth Geneva Conventions. The Court is mindful of the fact that internment in peacetime does not fall within the scheme of deprivation of liberty governed by Article 5 of the Convention without the exercise of the power of derogation under Article 15 (see paragraph 97 above). It can only be in cases of international armed conflict, where the taking of prisoners of war and the detention of civilians who pose a threat to security are accepted features of international humanitarian law, that Article 5 could be interpreted as permitting the exercise of such broad powers. 105. As with the grounds of permitted detention already set out in those subparagraphs, deprivation of liberty pursuant to powers under international humanitarian law must be “lawful” to preclude a violation of Article 5 § 1. This means that the detention must comply with the rules of international humanitarian law and, most importantly, that it should be in keeping with the fundamental purpose of Article 5 § 1, which is to protect the individual from arbitrariness (see, for example, Kurt v. Turkey, 25 May 1998, § 122, Reports of Judgments and Decisions 1998 ‑ III; El-Masri, cited above, § 230; see also Saadi v. the United Kingdom [GC], no. 13229/03, §§ 67-74, ECHR 2008, and the cases cited therein). 106. As regards procedural safeguards, the Court considers that, in relation to detention taking place during an international armed conflict, Article 5 §§ 2 and 4 must also be interpreted in a manner which takes into account the context and the applicable rules of international humanitarian law. Articles 43 and 78 of the Fourth Geneva Convention provide that internment “shall be subject to periodical review, if possible every six months, by a competent body”. Whilst it might not be practicable, in the course of an international armed conflict, for the legality of detention to be determined by an independent “court” in the sense generally required by Article 5 § 4 (see, in the latter context, Reinprecht v. Austria, no. 67175/01, § 31, ECHR 2005 ‑ XII), nonetheless, if the Contracting State is to comply with its obligations under Article 5 § 4 in this context, the “competent body” should provide sufficient guarantees of impartiality and fair procedure to protect against arbitrariness. Moreover, the first review should take place shortly after the person is taken into detention, with subsequent reviews at frequent intervals, to ensure that any person who does not fall into one of the categories subject to internment under international humanitarian law is released without undue delay. While the applicant in addition relies on Article 5 § 3, the Court considers that this provision has no application in the present case since Tarek Hassan was not detained in accordance with the provisions of paragraph 1(c) of Article 5. 107. Finally, although, for the reasons explained above, the Court does not consider it necessary for a formal derogation to be lodged, the provisions of Article 5 will be interpreted and applied in the light of the relevant provisions of international humanitarian law only where this is specifically pleaded by the respondent State. It is not for the Court to assume that a State intends to modify the commitments which it has undertaken by ratifying the Convention in the absence of a clear indication to that effect. (b) Application of these principles to the facts of the case 108. The Court’s starting point is to observe that during the period in question in Iraq, all parties involved were High Contracting Parties to the Four Geneva Conventions, which apply in situations of international armed conflict and partial or total occupation of the territory of a High Contracting Party (see Article 2, common to the four Geneva Conventions, set out in paragraph 33 above). It is clear, therefore, that whether the situation in South East Iraq in late April and early May 2003 is characterised as one of occupation or of active international armed conflict, the four Geneva Conventions were applicable. 109. The Court refers to the findings of fact which it made after analysis of all the available evidence (see paragraphs 47-57 above). In particular, it held that Tarek Hassan was found by British troops, armed and on the roof of his brother’s house, where other weapons and documents of a military intelligence value were retrieved (see paragraphs 51-54 above). The Court considers that, in these circumstances, the United Kingdom authorities had reason to believe that he might be either a person who could be detained as a prisoner of war or whose internment was necessary for imperative reasons of security, both of which provided a legitimate ground for capture and detention (see Articles 4A and 21 of the Third Geneva Convention and Articles 42 and 78 of the Fourth Geneva Convention, all set out in paragraph 33 above). Almost immediately following his admission to Camp Bucca, Tarek Hassan was subject to a screening process in the form of two interviews by United States and United Kingdom military intelligence officers, which led to his being cleared for release since it was established that he was a civilian who did not pose a threat to security (see paragraphs 21-24 above). The Court has also found that the evidence points to his having been physically released from the Camp shortly thereafter (see paragraphs 55-56 above). 110. Against this background, it would appear that Tarek Hassan’s capture and detention was consistent with the powers available to the United Kingdom under the Third and Fourth Geneva Conventions, and was not arbitrary. Moreover, in the light of his clearance for release and physical release within a few days of being brought to the Camp, it is unnecessary for the Court to examine whether the screening process constituted an adequate safeguard to protect against arbitrary detention. Finally, it would appear from the context and the questions that Tarek Hassan was asked during the two screening interviews that the reason for his detention would have been apparent to him. 111. It follows from the above analysis that the Court finds no violation of Article 5 §§ 1, 2, 3 or 4 in the circumstances of the present case. | The case concerned the acts of British armed forces in Iraq, extra-territorial jurisdiction and the application of the European Convention of Human Rights in the context of an international armed conflict. In particular, this was the first case in which a contracting State had requested the Court to disapply its obligations under Article 5 (right to liberty and security) of the Convention or in some other way to interpret them in the light of powers of detention available to it under international humanitarian law. In the present case, the Court held that the applicant’s brother had been within the jurisdiction of the United Kingdom between the time of his arrest by British troops, in April 2003, until his release from the bus that had taken him from Camp Bucca under military escort to a drop-off point, in May 2003. The Court further held that there had been no violation of Article 5 §§ 1, 2, 3 or 4 (right to liberty and security) of the Convention as concerned the actual capture and detention of the applicant’s brother. It decided in particular that international humanitarian law and the European Convention both provided safeguards from arbitrary detention in time of armed conflict and that the grounds of permitted deprivation of liberty set out in Article 5 should be accommodated, as far as possible, with the taking of prisoners of war and the detention of civilians who pose a risk to security under the Third and Fourth Geneva Conventions. It further found that, in the present case, there had been legitimate grounds under international law for capturing and detaining the applicant’s brother, who had been found by British troops, armed and on the roof of his brother’s house, where other weapons and documents of a military intelligence value had been retrieved. Moreover, following his admission to Camp Bucca, he had been subjected to a screening process, which established that he was a civilian who did not pose a threat to security and led to his being cleared for release. The applicant’s brother’s capture and detention had not therefore been arbitrary. The Court lastly declared inadmissible, for lack of evidence, the applicant’s complaints under Article 2 (right to life) and 3 (prohibition of inhuman or degrading treatment) of the Convention concerning the alleged ill-treatment and death of his brother. |
1,025 | (2) A State may take measures derogating from its Convention obligations only to the extent strictly required by the situation | PROCEEDINGS BEFORE THE COMMISSION 144. In their original application, lodged with the Commission on 16 December 1971, and later supplemented, the Irish Government made various allegations of violations by the United Kingdom of Articles 1, 2, 3, 5, 6 and 14 (art. 1, art. 2, art. 3, art. 5, art. 6, art. 14) of the Convention. 145. On 1 October 1972, the Commission declared the application inadmissible as regards Article 2 (art. 2) but accepted the allegations that: - the treatment of persons in custody, in particular the methods of interrogation of such persons, constituted an administrative practice in breach of Article 3 (art. 3); - internment without trial and detention under the Special Powers Act and the Special Powers Regulations constituted an administrative practice in breach of Articles 5 and 6 in connection with Article 15 (art. 15+5, art. 15+6); - the exercise by the respondent Government of their power to detain and intern persons was being carried out with discrimination on the grounds of political opinion and thus constituted a breach of Article 14 (art. 14) with respect to the rights and freedoms guaranteed in Articles 5 and 6 in conjunction with Article 15 (art. 15+5, art. 15+6); - the administrative practices complained of also constituted a breach of Article 1 (art. 1). 146. In addition to receiving written observations and evidence from the two Governments concerned and to hearing their oral submissions, the Commission also heard - through delegates and in the circumstances more particularly detailed in its report - a total of 119 witnesses. One hundred gave evidence in relation to the issues under Article 3 (art. 3) and nineteen in relation to those under Article 14 (art. 14); of the latter, three were witnesses proposed by the respondent Government who were heard by the delegates in London in the absence of representatives of the Parties and without being subjected to cross-examination. 147. In its report, the Commission expressed the opinion: (i) unanimously, that the powers of detention and internment without trial as exercised during the relevant periods were not in conformity with Article 5, paras. 1 to 4 (art. 5-1, art. 5-2, art. 5-3, art. 5-4), but were "strictly required by the exigencies of the situation" in Northern Ireland, within the meaning of Article 15 para. 1 (art. 15-1); (ii) unanimously, that Article 6 (art. 6) did not apply to the said powers; (iii) unanimously, that the facts found in relation to the relevant periods did not disclose any discrimination contrary to Article 14 (art. 14) in the exercise of the said powers; (iv) unanimously, that the combined use of the five techniques in the cases before it constituted a practice of inhuman treatment and of torture in breach of Article 3 (art. 3); (v) unanimously, that violations of Article 3 (art. 3) occurred by inhuman, and in two cases degrading, treatment of - T 6, in an unidentified interrogation centre in August 1971, - T 2, T 8, T 12, T 15, T 9, T 14 and T 10 at Palace Barracks, Holywood, in September, October and November 1971, - T 16, T 7 and T 11, at various places in August, October and December 1971; (vi) unanimously, that there had been at Palace Barracks, Holywood, in the autumn of 1971, a practice in connection with the interrogation of prisoners by members of the RUC which was inhuman treatment in breach of Article 3 (art. 3) of the Convention; (vii) unanimously, that no practice in breach of Article 3 (art. 3) had been found to exist in relation to the cases of T 16, T 7 and T 11, including the general conditions at Girdwood Park in August 1971; (viii) unanimously, that the conditions of detention at Ballykinler in August 1971 did not disclose a violation of Article 3 (art. 3); (ix) by twelve votes to one, that Article 1 (art. 1), not granting any rights in addition to those mentioned in Section I of the Convention, cannot be the subject of a separate breach. The report contains various separate opinions. AS TO THE LAW 148. Paragraph (d) of the application of 10 March 1976 states that the object of bringing the case before the Court (Rule 31 para. 1 (d) of the Rules of Court) is "to ensure the observance in Northern Ireland of the engagements undertaken by the respondent Government as a High Contracting Party to the Convention and in particular of the engagements specifically set out by the applicant Government in the pleadings filed and the submissions made on their behalf and described in the evidence adduced before the Commission in the hearings before them". "To this end", the Court is invited "to consider the report of the Commission and to confirm the opinion of the Commission that breaches of the Convention have occurred and also to consider the claims of the applicant Government with regard to other alleged breaches and to make a finding of breach of the Convention where the Court is satisfied that a breach has occurred". In their written and oral pleadings before the Court, the Irish Government allege breaches of Articles 1, 3 (art. 1, art. 3), 5 (taken together with Article 15) (art. 15+5), 6 (taken together with Article 15) (art. 15+6) and 14 (taken together with Articles 5 and 6) (art. 14+5, art. 14+6). They also maintain - though they do not ask the Court to make a specific finding - that the British Government failed on several occasions in their duty to furnish the necessary facilities for the effective conduct of the investigation. The Commission does not go as far as that; however, at various places in its report, the Commission points out, in substance, that the respondent Government did not always afford it the assistance desirable. The Court regrets this attitude on the part of that Government; it must stress the fundamental importance of the principle, enshrined in Article 28, sub-paragraph (a) (art. 28-a) in fine, that the Contracting States have a duty to cooperate with the Convention institutions. 149. The Court notes first of all that it is not called upon to take cognisance of every single aspect of the tragic situation prevailing in Northern Ireland. For example, it is not required to rule on the terrorist activities in the six counties of individuals or of groups, activities that are in clear disregard of human rights. The Court has only to give a decision on the claims made before it by the Irish Republic against the United Kingdom. However, in so doing, the Court cannot lose sight of the events that form the background to this case. I. ON ARTICLE 3 (art. 3) 150. Article 3 (art. 3) provides that "no one shall be subjected to torture or to inhuman or degrading treatment or punishment". A. Preliminary questions 151. In their memorial of 26 October 1976 and at the hearings in February 1977, the United Kingdom Government raised two preliminary questions on the alleged violations of Article 3 (art. 3). The first concerns the violations which they no longer contest, the second certain of the violations whose existence they dispute. 1. Preliminary question on the non-contested violations of Article 3 (art. 3) 152. The United Kingdom Government contest neither the breaches of Article 3 (art. 3) as found by the Commission (see paragraph 147 above), nor - a point moreover that is beyond doubt - the Court ’ s jurisdiction to examine such breaches. However, relying inter alia on the case-law of the International Court of Justice (Northern Cameroons case, judgment of 2 December 1963, and Nuclear Tests cases, judgments of 20 December 1974),they argue that the European Court has power to decline to exercise its jurisdiction where the objective of an application has been accomplished or where adjudication on the merits would be devoid of purpose. Such, they claim, is the situation here. They maintain that the findings in question not only are not contested but also have been widely publicised and that they do not give rise to problems of interpretation or application of the Convention sufficiently important to require a decision by the Court. Furthermore, for them the subject-matter of those findings now belongs to past history in view of the abandonment of the five techniques (1972), the solemn and unqualified undertaking not to reintroduce these techniques (8 February 1977) and the other measures taken by the United Kingdom to remedy, impose punishment for, and prevent the recurrence of, the various violations found by the Commission. This argument is disputed by the applicant Government. Neither is it accepted in a general way by the delegates of the Commission; they stated, however, that they would express no conclusion as to whether or not the above-mentioned undertaking had deprived the claim concerning the five techniques of its object. 153. The Court takes formal note of the undertaking given before it, at the hearing on 8 February 1977, by the United Kingdom Attorney-General on behalf of the respondent Government. The terms of this undertaking were as follows: "The Government of the United Kingdom have considered the question of the use of the ‘ five techniques ’ with very great care and with particular regard to Article 3 (art. 3) of the Convention. They now give this unqualified undertaking, that the ‘ five techniques ’ will not in any circumstances be reintroduced as an aid to interrogation." The Court also notes that the United Kingdom has taken various measures designed to prevent the recurrence of the events complained of and to afford reparation for their consequences. For example, it has issued to the police and the army instructions and directives on the arrest, interrogation and treatment of persons in custody, reinforced the procedures for investigating complaints, appointed commissions of enquiry and paid or offered compensation in many cases (see paragraphs 99-100, 107, 110-111, 116-118, 121-122, 124, 128-130, 132, 135-139 and 142-143 above). 154. Nevertheless, the Court considers that the responsibilities assigned to it within the framework of the system under the Convention extend to pronouncing on the non-contested allegations of violation of Article 3 (art. 3). The Court ’ s judgments in fact serve not only to decide those cases brought before the Court but, more generally, to elucidate, safeguard and develop the rules instituted by the Convention, thereby contributing to the observance by the States of the engagements undertaken by them as Contracting Parties (Article 19) (art. 19). The conclusion thus arrived at by the Court is, moreover, confirmed by paragraph 3 of Rule 47 of the Rules of Court. If the Court may proceed with the consideration of a case and give a ruling thereon even in the event of a "notice of discontinuance, friendly settlement, arrangement" or "other fact of a kind to provide a solution of the matter", it is entitled a fortiori to adopt such a course of action when the conditions for the application of this Rule are not present. 155. Accordingly, that part of the present case which concerns the said allegations cannot be said to have become without object; the Court considers that it should rule thereon, notwithstanding the initiatives taken by the respondent State. 2. Preliminary question on certain of the contested violations of Article 3 (art. 3) 156. In their memorial of 28 July 1976, the Irish Government invited the Court to hold, unlike the Commission (see paragraphs 125, 130 and 147 above), that violations of Article 3 (art. 3) had occurred in the cases of T 3 (Ballykinler Regional Holding Centre, August 1971) and T 5 (St. Genevieve ’ s School, Belfast, August 1972) as well as in numerous places in Northern Ireland from 1971 to 1974. In addition to contesting the merits of these claims, the British Government also raised a preliminary question in connection therewith in their memorial of 26 October 1976 and at the hearings in February 1977. They argued that the complaints made did not expressly concern a practice but individual cases in which effective domestic remedies were available to the persons involved. Accordingly, in their submission, the said claims fell outside the area demarcated by the Commission on 1 October 1972 when it accepted the allegation that "the treatment of persons in custody ... constituted an administrative practice in breach of Article 3 (art. 3)". The Irish Government replied that this line of argument was based on an incorrect interpretation of the above-mentioned decision and of the manner in which the Commission subsequently carried out its role. According to the delegates of the Commission, the Irish Government had not made clear whether they were asking the Court to censure a practice or merely to hold that certain persons had been subjected to treatment contrary to Article 3 (art. 3). In the former case, but not in the latter, their request would, in the delegates ’ view, be in conformity with the decision of 1 October 1972. 157. The Court recalls that its jurisdiction in contentious matters is limited to applications which have first of all been lodged with and accepted by the Commission; this is perfectly clear from the structure of Sections III and IV of the Convention. The Commission ’ s decision declaring an application admissible determines the object of the case brought before the Court; it is only within the framework so traced that the Court, once a case is duly referred to it, may take cognisance of all questions of fact or of law arising in the course of the proceedings (De Wilde, Ooms and Versyp judgment of 18 June 1971, Series A no. 12, pp. 29-30, paras. 49 and 51; Handyside judgment of 7 December 1976, Series A no. 24, p. 20, para. 41; Stögmüller and Matznetter judgments of 10 November 1969, Series A no. 9, p. 41, para. 7, and no. 10, pp. 31-32, para. 5; Delcourt judgment of 17 January 1970, Series A no. 11, p. 20, para. 40). Again, Article 49 (art. 49) of the Convention provides that the Court shall settle disputes concerning its jurisdiction. It follows that, in order to rule on this preliminary plea, the Court must itself interpret the above-mentioned decision of 1 October 1972, in the particular light of the Commission ’ s explanations (see, mutatis mutandis, the Kjeldsen, Busk Madsen and Pedersen judgment of 7 December 1976, Series A no. 23, pp. 22-24, para. 48). The allegation accepted by the Commission under Article 3 (art. 3) concerned a practice or practices and not individual cases as such. Accordingly, the Court ’ s sole task is to give a ruling on that allegation. However, a practice contrary to the Convention can result only from individual violations (see paragraph 159 below). Hence, it is open to the Court, just as it was to the Commission, to examine, as constituent elements or proof of a possible practice and not on an individual basis, specific cases alleged to have occurred in given places. The Court concludes that it has jurisdiction to take cognisance of the contested cases of violation of Article 3 (art. 3) if and to the extent that the applicant Government put them forward as establishing the existence of a practice. 158. Following the Order of 11 February 1977 (see paragraph 8 above), the Irish Government indicated, at the hearings in April 1977, that they were asking the Court to hold that there had been in Northern Ireland, from 1971 to 1974, a practice or practices in breach of Article 3 (art. 3) and to specify, if need be, where they had occurred. They also declared that they were no longer seeking specific findings in relation to the cases of T 3 and T 5. 159. A practice incompatible with the Convention consists of an accumulation of identical or analogous breaches which are sufficiently numerous and inter-connected to amount not merely to isolated incidents or exceptions but to a pattern or system; a practice does not of itself constitute a violation separate from such breaches. It is inconceivable that the higher authorities of a State should be, or at least should be entitled to be, unaware of the existence of such a practice. Furthermore, under the Convention those authorities are strictly liable for the conduct of their subordinates; they are under a duty to impose their will on subordinates and cannot shelter behind their inability to ensure that it is respected. The concept of practice is of particular importance for the operation of the rule of exhaustion of domestic remedies. This rule, as embodied in Article 26 (art. 26) of the Convention, applies to State applications (Article 24) (art. 24), in the same way as it does to "individual" applications (Article 25) (art. 25), when the applicant State does no more than denounce a violation or violations allegedly suffered by "individuals" whose place, as it were, is taken by the State. On the other hand and in principle, the rule does not apply where the applicant State complains of a practice as such, with the aim of preventing its continuation or recurrence, but does not ask the Commission or the Court to give a decision on each of the cases put forward as proof or illustrations of that practice. The Court agrees with the opinion which the Commission, following its earlier case-law, expressed on the subject in its decision of 1 October 1972 on the admissibility of the Irish Government ’ s original application. Moreover, the Court notes that that decision is not contested by the respondent Government. B. Questions of proof 160. In order to satisfy itself as to the existence or not in Northern Ireland of practices contrary to Article 3 (art. 3), the Court will not rely on the concept that the burden of proof is borne by one or other of the two Governments concerned. In the cases referred to it, the Court examines all the material before it, whether originating from the Commission, the Parties or other sources, and, if necessary, obtains material proprio motu. 161. The Commission based its own conclusions mainly on the evidence of the one hundred witnesses heard in, and on the medical reports relating to, the sixteen "illustrative" cases it had asked the applicant Government to select. The Commission also relied, but to a lesser extent, on the documents and written comments submitted in connection with the "41 cases" and it referred to the numerous "remaining cases" (see paragraph 93 above). As in the "Greek case" (Yearbook of the Convention, 1969, The Greek case, p. 196, para. 30), the standard of proof the Commission adopted when evaluating the material it obtained was proof "beyond reasonable doubt". The Irish Government see this as an excessively rigid standard for the purposes of the present proceedings. They maintain that the system of enforcement would prove ineffectual if, where there was a prima facie case of violation of Article 3 (art. 3), the risk of a finding of such a violation was not borne by a State which fails in its obligation to assist the Commission in establishing the truth (Article 28, sub-paragraph (a) in fine, of the Convention) (art. 28-a). In their submission, this is how the attitude taken by the United Kingdom should be described. The respondent Government dispute this contention and ask the Court to follow the same course as the Commission. The Court agrees with the Commission ’ s approach regarding the evidence on which to base the decision whether there has been violation of Article 3 (art. 3). To assess this evidence, the Court adopts the standard of proof "beyond reasonable doubt" but adds that such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. In this context, the conduct of the Parties when evidence is being obtained has to be taken into account. C. Questions concerning the merits 162. As was emphasised by the Commission, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 (art. 3). The assessment of this minimum is, in the nature of things, relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim, etc. 163. The Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the victim ’ s conduct. Unlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4 (P1, P4), Article 3 (art. 3) makes no provision for exceptions and, under Article 15 para. 2 (art. 15-2), there can be no derogation therefrom even in the event of a public emergency threatening the life of the nation. 164. In the instant case, the only relevant concepts are "torture" and "inhuman or degrading treatment", to the exclusion of "inhuman or degrading punishment". 1. The unidentified interrogation centre or centres (a) The "five techniques" 165. The facts concerning the five techniques are summarised at paragraphs 96-104 and 106-107 above. In the Commission ’ s estimation, those facts constituted a practice not only of inhuman and degrading treatment but also of torture. The applicant Government asks for confirmation of this opinion which is not contested before the Court by the respondent Government. 166. The police used the five techniques on fourteen persons in 1971 that is on twelve including T 6 and T 13, in August before the Compton Committee was set up, and on two in October whilst that Committee was carrying out its enquiry. Although never authorised in writing in any official document, the five techniques were taught orally by the English Intelligence Centre to members of the RUC at a seminar held in April 1971. There was accordingly a practice. 167. The five techniques were applied in combination, with premeditation and for hours at a stretch; they caused, if not actual bodily injury, at least intense physical and mental suffering to the persons subjected thereto and also led to acute psychiatric disturbances during interrogation. They accordingly fell into the category of inhuman treatment within the meaning of Article 3 (art. 3). The techniques were also degrading since they were such as to arouse in their victims feelings of fear, anguish and inferiority capable of humiliating and debasing them and possibly breaking their physical or moral resistance. On these two points, the Court is of the same view as the Commission. In order to determine whether the five techniques should also be qualified as torture, the Court must have regard to the distinction, embodied in Article 3 (art. 3), between this notion and that of inhuman or degrading treatment. In the Court ’ s view, this distinction derives principally from a difference in the intensity of the suffering inflicted. The Court considers in fact that, whilst there exists on the one hand violence which is to be condemned both on moral grounds and also in most cases under the domestic law of the Contracting States but which does not fall within Article 3 (art. 3) of the Convention, it appears on the other hand that it was the intention that the Convention, with its distinction between "torture" and "inhuman or degrading treatment", should by the first of these terms attach a special stigma to deliberate inhuman treatment causing very serious and cruel suffering. Moreover, this seems to be the thinking lying behind Article 1 in fine of Resolution 3452 (XXX) adopted by the General Assembly of the United Nations on 9 December 1975, which declares: "Torture constitutes an aggravated and deliberate form of cruel, inhuman or degrading treatment or punishment". Although the five techniques, as applied in combination, undoubtedly amounted to inhuman and degrading treatment, although their object was the extraction of confessions, the naming of others and/or information and although they were used systematically, they did not occasion suffering of the particular intensity and cruelty implied by the word torture as so understood. 168. The Court concludes that recourse to the five techniques amounted to a practice of inhuman and degrading treatment, which practice was in breach of Article 3 (art. 3). (b) Ill-treatment alleged to have accompanied the use of the five techniques 169. The applicant Government claim that the fourteen persons subjected to the five techniques, or some of those persons including T 6 and T 13, also had to undergo other kinds of treatment contrary to Article 3 (art. 3). The Commission has found such treatment only in the case of T 6, although it regarded it as probable that the use of the five techniques was sometimes accompanied by physical violence (see paragraph 105 above). 170. As far as T 6 is concerned, the Court shares the Commission ’ s opinion that the security forces subjected T 6 to assaults severe enough to constitute inhuman treatment. This opinion, which is not contested by the respondent Government, is borne out by the evidence before the Court. 171. In the thirteen remaining cases examined in this context, including the contested case of T 13, the Court has no evidence to support a finding of breaches of Article 3 (art. 3) over and above that resulting from the application of the five techniques. 172. Accordingly, no other practice contrary to Article 3 (art. 3) is established for the unidentified interrogation centre or centres; the findings relating to the individual case of T 6 cannot, of themselves, amount to proof of a practice. 2. Palace Barracks 173. The Commission came to the view that inhuman treatment had occurred at Palace Barracks in September, October and November 1971 in seven of the nine "illustrative" cases it examined, namely those of T 2, T 8, T 12, T 15, T 9, T 14 and T 10. It considered that these cases, combined with other indications, showed that there had been in these Barracks, in the autumn of 1971, a practice in connection with the interrogation of prisoners by members of the RUC which was inhuman treatment. The British Government do not contest these conclusions; the Irish Government ask the Court to confirm them but also to supplement them in various respects. (a) Autumn 1971 174. Insofar as the Commission has found that a practice of inhuman treatment was followed in the autumn of 1971, for example in the cases of T 2, T 8, T 12, T 15, T 9, T 14 and T 10, the facts summarised above (paragraphs 110-111 and 115-116) bear out its opinion. The evidence before the Court reveals that, at the time in question, quite a large number of those held in custody at Palace Barracks were subjected to violence by members of the RUC. This violence, which was repeated violence occurring in the same place and taking similar forms, did not amount merely to isolated incidents; it definitely constituted a practice. It also led to intense suffering and to physical injury which on occasion was substantial; it thus fell into the category of inhuman treatment. According to the applicant Government, the violence in question should also be classified, in some cases, as torture. On the basis of the data before it, the Court does not share this view. Admittedly, the acts complained of often occurred during interrogation and, to this extent, were aimed at extracting confessions, the naming of others and/or information, but the severity of the suffering that they were capable of causing did not attain the particular level inherent in the notion of torture as understood by the Court (see paragraph 167 above). 175. In their memorial of 28 July 1976, the applicant Government asked the Court to hold, unlike the Commission, that T 1 and T 4 had also been victims of violations of Article 3 (art. 3) (see paragraphs 112-114 above). The delegates of the Commission argued that it would serve no purpose to add these two cases to the list since, like the other seven, they date from the autumn of 1971 and there is no longer any dispute between those appearing before the Court as to the existence during this period of a practice in breach of Article 3 (art. 3). At the hearings in February 1977, the Irish Government acknowledged the validity of this argument. They declared that the Court would not need to make a specific finding on the contested cases of T 1 and T 4 if it confirmed the Commission ’ s non-contested conclusions. The Court takes note of this declaration. For the reasons given by the delegates, it considers that an examination of these two individual cases would be superfluous. (b) From autumn 1971 to June 1972 176. Finally, the Irish Government request the Court to hold that the practice complained of continued until June 1972 when Palace Barracks were closed down as a holding centre. In their submission, there is no proof to the contrary and there are indications that the practice did so continue. The respondent Government state, inter alia, that they do not perceive how, by relying on nothing more than inferences, the Court could on this issue reach a conclusion different from the Commission ’ s. 177. Concurring with the submission made by the delegates of the Commission, the Court finds that, like the Commission, it lacks sufficient evidence on which to decide whether or not the practice in question continued at Palace Barracks beyond the autumn of 1971: the only two cases dating from the first six months of 1972 (T 30 and T 31) figured amongst the "41 cases" and not the "illustrative" cases (see paragraphs 93, 109 and 116 above). For the reasons explained below (paragraph 184), the Court does not consider that it has to try to obtain further evidence. It therefore restricts its findings in the same way as the Commission. 3. Other places 178. According to the applicant Government, a practice or practices in breach of Article 3 (art. 3) existed in Northern Ireland from 1971 to 1974, for example at Girdwood Park and at Ballykinler; this allegation is denied by the respondent Government. The Commission was of the opinion that T 16 and T 7 had been victims of treatment that was both inhuman and degrading and T 11 of treatment that was inhuman: T 16 on 13 August 1971 at Girdwood Park, T 7 on 28 October 1971 in a street in Belfast and T 11 on 20 December 1971 at Albert Street Barracks, also in Belfast. However, the Commission considered that no practice in breach of Article 3 (art. 3) had been established in relation to these cases, including the general conditions at Girdwood Park (see paragraph 147 above) and, further, that the conditions of detention at Ballykinler did not disclose a violation of that Article (art. 3) (ibid.). (a) Ballykinler 179. The Court first examined the situation at the Ballykinler military camp. For this purpose, it did not have to investigate separately the individual contested case of T 3 on which the Irish Government are no longer seeking a specific finding (see paragraph 158 above). 180. The RUC, with the assistance of the army, used Ballykinler as a holding and interrogation centre for a few days early in August 1971. Some dozens of people arrested in the course of Operation Demetrius were held there in extreme discomfort and were made to perform irksome and painful exercises; eleven of those persons subsequently received compensation (see paragraphs 123-126 above). There was thus a practice rather than isolated incidents. The Court found confirmation of this in the judgment of 18 February 1972 in the Moore case. 181. The Court has to determine whether this practice violated Article 3 (art. 3). Clearly, it would not be possible to speak of torture or inhuman treatment, but the question does arise whether there was not degrading treatment. The Armagh County Court granted Mr. Moore £300 by way of damages, the maximum amount it had jurisdiction to award. This fact shows that the matters of which Mr. Moore complained were, if nothing else, contrary to the domestic law then in force in the United Kingdom. Furthermore, the way in which prisoners at Ballykinler were treated was characterised in the judgment of 18 February 1972 as not only illegal but also harsh. However, the judgment does not describe the treatment in detail; it concentrates mainly on reciting the evidence tendered by the witnesses and indicates that the judge rejected that given on behalf of the defence. The Compton Committee for its part considered that, although the exercises which detainees had been made to do involved some degree of compulsion and must have caused hardship, they were the result of lack of judgment rather than an intention to hurt or degrade. To sum up, the RUC and the army followed at Ballykinler a practice which was discreditable and reprehensible but the Court does not consider that they infringed Article 3 (art. 3). (b) Miscellaneous places 182. There remain the various other places referred to by the Irish Government (see paragraphs 119-122 and 127-132 above). The information before the Court concerning these places - for example the large number of cases in which compensation was paid by the British authorities and the many criminal or disciplinary sanctions imposed on members of the security forces (see paragraphs 140-143 above) - suggests that there must have been individual violations of Article 3 (art. 3) in Northern Ireland over and above the breaches already noted by the Court (see paragraphs 167, 170 and 174 above). However, the Commission did not regard this information, which it had obtained by using a method accepted by the Parties (see paragraph 93 above), as being sufficient to disclose a practice or practices in breach of Article 3 (art. 3). The Court shares this view. Admittedly, the evidence before the Court bears out the Commission ’ s opinion on the cases of T 16, T 7 and T 11 which the respondent Government do not contest (see paragraphs 120, 128 and 129 above). However, these were incidents insufficiently numerous and inter-connected to amount to a practice, even if one were to add the contested case of T 5 (St. Genevieve ’ s School, Belfast, 13 August 1972, paragraph 130 above), on which the applicant Government are no longer seeking a specific finding (see paragraph 158 above). 183. The Irish Government stress, inter alia, that interrogations at Palace Barracks and Girdwood Park were conducted by the same members of the RUC on a rotating system (see paragraph 108 above). The Government regard it as improbable that these men observed Article 3 (art. 3) in the second of these centres when they contravened it in the first. There is some force in this argument, but it is only a presumption and so cannot be taken as conclusive on its own. 184. The Court would be empowered to obtain, if necessary proprio motu, additional evidence (Rule 38 of the Rules of Court). However, such a course would oblige the Court to select a series of further "illustrative" cases and to hear a substantial number of further witnesses, failing which it might well, as the delegates of the Commission emphasised, arrive at extremely tenuous conclusions. It is not essential to re-open the investigation in this way in the present case. Indeed, the preventive measures taken by the United Kingdom (see paragraphs 133-136 above) at first sight render hardly plausible, especially as regards the period after the introduction of direct rule (30 March 1972), if not the suggestion of individual violations of Article 3 (art. 3) - on which the Court does not have to give a specific ruling (see paragraph 157 above), at least the suggestion of the continuation or commencement of a practice or practices in breach of that Article (art. 3). Furthermore, anyone claiming to be the victim of a breach of Article 3 (art. 3) in Northern Ireland is entitled to exercise the domestic remedies open to him (Article 26 the Convention) (art. 26) and subsequently, if need be, to apply to the Commission whose competence to receive "individual" petitions has been recognised by the United Kingdom (Article 25) (art. 25); this in fact often happened. Finally, the findings made in connection with the five techniques and Palace Barracks, henceforth embodied in a binding judgment of the Court, provide a far from negligible guarantee against a return to the serious errors of former times. In these circumstances, the interests protected by the Convention do not compel the Court to undertake lengthy researches that would delay the Court ’ s decision. 185. In conclusion, the Court does not find, as regards the places concerned, any practice in breach of Article 3 (art. 3). 4. The Irish request for a consequential order 186. In a letter dated 5 January 1977, the applicant Government requested the Court to order that the respondent Government - refrain from reintroducing the five techniques, as a method of interrogation or otherwise; - proceed as appropriate, under the criminal law of the United Kingdom and the relevant disciplinary code, against those members of the security forces who have committed acts in breach of Article 3 (art. 3) referred to in the Commission ’ s findings and conclusions, and against those who condoned or tolerated them. At the hearings, the applicant Government withdrew the first request following the solemn undertaking given on behalf of the United Kingdom Government on 8 February 1977 (see paragraph 153 above); on the other hand, the second request was maintained. 187. The Court does not have to consider in these proceedings whether its functions extend, in certain circumstances, to addressing consequential orders to Contracting States. In the present case, the Court finds that the sanctions available to it do not include the power to direct one of those States to institute criminal or disciplinary proceedings in accordance with its domestic law. II. ON ARTICLE 5 (art. 5) 188. The substance of the Irish Government ’ s allegations is that - the various powers relating to extrajudicial deprivation of liberty which were used in the six counties from 9 August 1971 to March 1975 did not satisfy the conditions prescribed by Article 5 (art. 5); - those powers violated Article 5 (art. 5) since they failed to meet in full the requirements of Article 15 (art. 15); - those powers were furthermore exercised with discrimination and consequently also violated Article 14 taken together with Article 5 (art. 14+5). 189. The applicant Government are not asking the Court to give a ruling on the legislation subsequent to March 1975, the date of the final hearings of the Parties before the Commission. However, the Emergency Provisions Amendment Act, certain of whose provisions reintroduced the principle of detention by order of the Secretary of State for Northern Ireland, did not enter into force until 21 August 1975 (see paragraph 90 above). An ex officio examination of those provisions is not called for: the information made available to the Court suggests that they have not been used since 5 December 1975 (see paragraph 91 above) and, besides, does not indicate that resort was ever had to them before that date. 190. The legislation prior to March 1975 (see paragraphs 80-89 above) is criticised by the Irish Government as regards both its terms and its application. However, the first aspect is a matter for, and must be dealt with under, Articles 1 and 24 (art. 1, art. 24) (see paragraphs 236-243 below). Only the second aspect is relevant under Article 5 (art. 5), taken alone or together with Articles 15 and 14 (art. 15+5, art. 14+5). In addition, the scope of the Court ’ s review extends to the application of that legislation between 9 August 1971 and March 1975 only as a practice and not in a given individual case; this is clear from the documents before the Court read as a whole and, in particular, from the decision of 1 October 1972 on the admissibility of the original application of 16 December 1971. 191. It will, of course, be necessary to have regard to Article 15 (art. 15) in deciding whether any derogation from Article 5 (art. 5) were, in the circumstances of the case, compatible with the Convention, but the Court considers that it should ascertain in what respects the measures complained of derogated from Article 5 (art. 5) before assessing them under Article 15 (art. 15). A. Paragraphs 1 to 4 of Article 5 (art. 5-1, art. 5-2, art. 5-3, art. 5-4), taken alone 192. Paragraphs 1 to 4 of Article 5 (art. 5-1, art. 5-2, art. 5-3, art. 5-4) read as follows: "1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a) the lawful detention of a person after conviction by a competent court; (b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law; (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; (d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority; (e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants; (f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition. 2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him. 3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article (art. 5-1-c) shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial. 4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful." 193. In the Commission ’ s opinion, the powers at issue - as exercised by the competent authorities - did not comply with paragraphs 1 to 4 of Article 5 (art. 5-1, art. 5-2, art. 5-3, art. 5-4) on a number of points. The applicant Government agree with this conclusion; the respondent Government do not contest it but indicate that they do not necessarily accept all of the reasons. 1. Paragraph 1 (art. 5-1) 194. Paragraph 1 of Article 5 (art. 5-1) contains a list of the cases in which it is permissible under the Convention to deprive someone of his liberty. Subject to Article 15 (art. 15) - and without prejudice to Article 1 of Protocol No. 4 (P4-1) which the United Kingdom has not ratified -, that list is exhaustive: this appears from the words "save in the following cases" and is confirmed by Article 17 (art. 17). 195. The different forms of deprivation of liberty in this case clearly did not fall under sub-paragraphs (a), (d), (e) and (f) of paragraph 1 (art. 5-1-a, art. 5-1-d, art. 5-1-e, art. 5-1-f). Neither were such deprivations covered by sub-paragraph (b) (art. 5-1-b), since they had no connection whatsoever with a "non-compliance with the ... order of a court" and were not designed to "secure the fulfilment of any obligation prescribed by law" (Lawless judgment of 1 July 1961, Series A no. 3, p. 51, para. 12; Engel and others judgment of 8 June 1976, Series A no. 22, p. 28, para. 69, third sub-paragraph). 196. At first sight, the different forms of deprivation of liberty may appear to bear some resemblance to the cases contemplated by sub-paragraph (c) (art. 5-1-c). However, a "suspicion" of an "offence" was not required before a person could be arrested under Regulation 10, nor did it have to be "considered necessary to prevent his committing an offence or fleeing after having done so"; arrest had merely to be "for the preservation of the peace and maintenance of order" and was sometimes used to interrogate the person concerned about the activities of others (see paragraph 81 above). On the other hand, the other three Regulations complained of by the Irish Government did require a suspicion. While Regulations 11 (1) (arrest) and 11 (2) (detention) spoke both of an "offence" and of activity "prejudicial to the preservation of the peace or maintenance of order" (see paragraphs 82 and 83 above), and while this latter concept alone appeared in Regulation 12 (1) (internment, paragraph 84 above), section 2 (4) of the Special Powers Act made such activity an offence. The Terrorists Order (interim custody and detention) and the Emergency Provisions Act (arrest, interim custody and detention), for their part, were applicable only to individuals suspected of having been concerned in the commission or attempted commission of any act of terrorism, that is the use of violence for political ends, or in the organisation of persons for the purpose of terrorism; these criteria were well in keeping with the idea of an offence (see paragraphs 85-88 above). Irrespective of whether extrajudicial deprivation of liberty was or was not founded in the majority of cases on suspicions of a kind that would render detention on remand justifiable under the Convention, such detention is permissible under Article 5 para. 1 (c) (art. 5-1-c) only if it is "effected for the purpose of bringing [the detainee] before the competent legal authority". Yet this condition – if interpreted, as must be done, in the light of paragraph 3 of Article 5 (art. 5-3) (Lawless judgment of 1 July 1961, Series A no. 3, pp. 51-53, para. 14) - was not fulfilled; the Court refers, in this connection, to paragraph 199 below. 2. Paragraphs 2 to 4 197. Paragraphs 2 to 4 of Article 5 (art. 5-2, art. 5-3, art. 5-4) place the Contracting States under an obligation to provide several guarantees in cases where someone is deprived of his liberty. 198. Under paragraph 2 (art. 5-2), "everyone who is arrested shall be informed promptly ... of the reasons for his arrest and of any charge against him". However, there was no such provision either in Regulations 10 and 11 (1) or in section 10 of the Emergency Provisions Act. In point of fact, the persons concerned were not normally informed why they were being arrested; in general, they were simply told that the arrest was made pursuant to the emergency legislation and they were given no further details (see paragraphs 81 and 82 above). This practice originated in instructions issued to the military police in May 1970 and it continued at least until it was declared unlawful by the courts (see the McElduff case, judgment of 12 October 1971, and the Kelly case, judgment of 11 January 1973, on Regulation 11 (1); the Moore case, judgment of 18 February 1972, on Regulation 10). 199. As for paragraph 3 (art. 5-3), taken together with paragraph 1 (c) (art. 5-1-c) (see paragraph 196 above), the Court finds that the impugned measures were not effected for the purpose of bringing the persons concerned "promptly" before "the competent legal authority", namely "a judge or other officer authorised by law to exercise judicial power". Persons originally detained under, for example, Regulation 11 (2) were, in fact, sometimes brought before the ordinary courts (see paragraph 83 above), but paragraphs 1 (c) and 3 of Article 5 (art. 5-1-c, art. 5-3) of the Convention are not satisfied by an appearance "before the competent legal authority" in some cases since such appearance is obligatory in every single case governed by those paragraphs. For its part, the advisory committee before which were brought - on the occasions when they so consented – individuals interned under Regulation 12 (1) did not have power to order their release and accordingly did not constitute a "competent legal authority" (see paragraph 84 above). On the other hand, such a power was vested by the Terrorists Order and, subsequently, by the Emergency Provisions Act in the commissioners who adjudicated on cases of persons subjected to interim custody orders made by the Secretary of State for Northern Ireland. However, even if such a commissioner is regarded as a judicial authority ("officer"," magistrat "), appearance before him did not take place" aussitôt ", or even "promptly" (see paragraphs 86-88 above). A person "arrested or detained" pursuant to one of the provisions complained of was even less entitled to "trial within a reasonable time" or to "release pending trial" conditioned, if need be, by "guarantees to appear for trial", within the meaning of Article 5 para. 3 (art. 5-3). Quite the contrary: the reason for the existence of those provisions and of the related practice was the fact that the circumstances prevailing at the time made it difficult, subject to exceptions, to institute criminal proceedings which would in principle have led to a judicial hearing ("audience") and to a "[decision] on the merits" (Lawless judgment of 1 July 1961, Series A no. 3, p. 52, first sub-paragraph). 200. There remains paragraph 4 (art. 5-4) which is applicable to "everyone who is deprived of his liberty", whether lawfully or not (De Wilde, Ooms and Versyp judgment of 18 June 1971, Series A no. 12, pp. 39-40, para. 73). Under Regulations 10, 11 (1) and 11 (2) there was no entitlement to "take proceedings by which the lawfulness of [the] detention [would] be decided speedily by a court" and "release ordered if the detention" proved to be "not lawful" (see paragraphs 81-83 above). As regards Regulation 12 (1), the advisory committee to which internees had the possibility of making representations could at most recommend, as opposed to order, release, as the Court has already noted (see paragraphs 84 and 199 above). Moreover, the committee ’ s procedure did not afford the fundamental guarantees inherent in the notion of "court" as used in Article 5 para. 4 (art. 5-4) (De Wilde, Ooms and Versyp judgment of 18 June 1971, Series A no. 12, pp. 40-42, para. 76, second and third sub-paragraphs, and para. 78; paragraph 84 above). The last remark also applies, mutatis mutandis, to the commissioners and to the appeal tribunal entrusted with supervisory functions by the Terrorists Order and, subsequently, by the Emergency Provisions Act (see paragraphs 87-88 above). Here again, the Court does not consider it indispensable to enquire further into the matter. In fact, only the Chief Constable and, in certain circumstances, the Secretary of State were empowered to refer to a commissioner the case of a person detained under an interim custody order (see paragraphs 86-88 above). The detainee himself was not entitled to "take proceedings" in respect of an interim custody order; he had no means of contesting the "lawfulness" of his detention, either during its initial twenty-eight day period or during its extension pending the commissioner ’ s adjudication (see paragraphs 86 and 88 above). When that adjudication resulted in a detention order, the individual could challenge the order before the appeal tribunal; in general, however, that tribunal did not give its decision "speedily", at least if, as must be done, the length of the earlier proceedings before the commissioner is also taken into account (see paragraphs 86-88 above). Accordingly, the commissioners and the appeal tribunal did not meet each of the requirements of Article 5 para. 4 (art. 5-4). The respondent Government maintain that habeas corpus proceedings, on the other hand, fully satisfied those requirements. The Court has, in fact, cognisance of a judgment delivered by a court before whom an individual had challenged under common law his deprivation of liberty pursuant to Regulations 11 (1) and 11 (2) (the McElduff case, judgment of 12 October 1971). However, the courts considered that their powers did not go beyond the limits indicated in paragraphs 81-84 above. The judicial review of the lawfulness of the measures in issue was thus not sufficiently wide in scope, taking into account the purpose and object of Article 5 para. 4 (art. 5-4) of the Convention. 201. On paragraphs 1 to 4 of Article 5 (art. 5-1, art. 5-2, art. 5-3, art. 5-4), taken alone, the Court therefore arrives at conclusions in line with those of the Commission. B. On Article 5 taken together with Article 15 (art. 15+5) 202. The applicant Government maintain that the powers relating to extrajudicial deprivation of liberty which were applied in Northern Ireland from 9 August 1971 to March 1975 were not in complete conformity with Article 15 (art. 15) and, accordingly, violated Article 5 (art. 5). The Commission is unanimous in not accepting this claim and it is disputed by the respondent Government. 203. Article 15 (art. 15) provides: "1. In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law. 2. No derogation from Article 2 (art. 2), except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4 (paragraph 1) and 7 (art. 3, art. 4-1, art. 7) shall be made under this provision. 3. Any High Contracting Party availing itself of this right of derogation shall keep the Secretary-General of the Council of Europe fully informed of the measures which it has taken and the reasons therefore. It shall also inform the Secretary-General of the Council of Europe when such measures have ceased to operate and the provisions of the Convention are again being fully executed." 204. Article 5 (art. 5) does not appear amongst the entrenched provisions listed in paragraph 2 of Article 15 (art. 15-2) and is therefore one of the Articles subject to the "right of derogation" reserved by the Contracting States, the exercise of which is regulated by paragraphs 1 and 3 (art. 15-1, art. 15-3). 1. On the "public emergency threatening the life of the nation" 205. Article 15 (art. 15) comes into play only "in time of war or other public emergency threatening the life of the nation". The existence of such an emergency is perfectly clear from the facts summarised above (paragraphs 12 and 29-75) and was not questioned by anyone before either the Commission or the Court. The crisis experienced at the time by the six counties therefore comes within the ambit of Article 15 (art. 15). 2. On the "extent strictly required" 206. The Contracting States may make use of their right of derogation only "to the extent strictly required by the exigencies of the situation". The Irish Government consider the "extent strictly required" to have been exceeded, whereas the British Government and the Commission assert the contrary. (a) The role of the Court 207. The limits on the Court ’ s powers of review (see judgment of 23 July 1968 on the merits of the "Belgian Linguistic" case, Series A no. 6, p. 35, para. 10 in fine; Handyside judgment of 7 December 1976, Series A no. 24, p. 22, para. 48) are particularly apparent where Article 15 (art. 15) is concerned. It falls in the first place to each Contracting State, with its responsibility for "the life of [its] nation", to determine whether that life is threatened by a "public emergency" and, if so, how far it is necessary to go in attempting to overcome the emergency. By reason of their direct and continuous contact with the pressing needs of the moment, the national authorities are in principle in a better position than the international judge to decide both on the presence of such an emergency and on the nature and scope of derogations necessary to avert it. In this matter Article 15 para. 1 (art. 15-1) leaves those authorities a wide margin of appreciation. Nevertheless, the States do not enjoy an unlimited power in this respect. The Court, which, with the Commission, is responsible for ensuring the observance of the States ’ engagements (Article 19) (art. 19), is empowered to rule on whether the States have gone beyond the "extent strictly required by the exigencies" of the crisis (Lawless judgment of 1 July 1961, Series A no. 3, p. 55, para. 22, and pp. 57-59, paras. 36-38). The domestic margin of appreciation is thus accompanied by a European supervision. (b) Questions of evidence 208. The Irish Government ask the Court to exclude from its examination the following material: - by reason of their origin, the Diplock report (see paragraphs 58-59 above), statements made before the Commission by the representatives of the United Kingdom and the memorandum by the Northern Ireland Office, annexed to the British memorial to the Court; - for the reasons given in paragraph 210 below, the oral evidence obtained by the Commission under Article 14 (art. 14), including that of the witnesses G 1, G 2 and G 3, who were heard in London on 20 February 1975 (see paragraph 146 above). 209. The Court is not bound, under the Convention or under the general principles applicable to international tribunals, by strict rules of evidence. In order to satisfy itself, the Court is entitled to rely on evidence of every kind, including, insofar as it deems them relevant, documents or statements emanating from governments, be they respondent or applicant, or from their institutions or officials. Here, there can scarcely be any question as to the relevance of the evidence which the Irish Government challenge. In particular, the fact that some of it was given in connection with Article 14 (art. 14) rather than Article 15 (art. 15) is of little moment. 210. The hearing of the evidence of G 1, G 2 and G 3 gives rise to rather complex questions. The applicant Government invite the Court not to take account of that evidence because it was heard in the absence of the Parties and without cross-examination, as a result of the wishes of the respondent Government who thereby allegedly failed in their obligation to cooperate in establishing the truth (Article 28, sub-paragraph (a) in fine, of the Convention) (art. 28-a). The Court finds in the first place that it does not have jurisdiction to rule on the correctness of the procedure followed at that hearing. The Commission, with its independence from the Court when carrying out its fact-finding role (Lawless judgment of 14 November 1960, Series A no. 1, p. 11, second sub-paragraph), is master of its procedure and of the interpretation of its Rules of Procedure - in this case Rule 34 para. 2 - which it draws up under Article 36 (art. 36) of the Convention. On the other hand, the Court, being master of its own procedure and of its own rules (Article 55 of the Convention) (art. 55), has complete freedom in assessing not only the admissibility and the relevance but also the probative value of each item of evidence before it. It cannot attach to the evidence of G 1, G 2 and G 3 as much weight as to the evidence of witnesses who have been cross-examined. The Court looks upon the evidence of G 1, G 2 and G 3 as no more than one source of information amongst others and one which, being evidence coming from senior British officials, falls into a similar category to the respective statements made by the representatives of the two Governments to the Commission and the Court. Although that evidence was given on oath, it was obtained under conditions which reduce its weight. Besides, its importance was not over-estimated by the Commission which bore the absence of cross-examination in mind; the delegates took care to emphasise this. (c) Questions concerning the merits 211. The Court has to decide whether the United Kingdom went beyond the "extent strictly required". For this purpose the Court must, as in the Lawless case (judgment of 1 July 1961, Series A no. 3, pp. 57-59, paras. 36-37), enquire into the necessity for, on the one hand, deprivation of liberty contrary to paragraph 1 of Article 5 (art. 5-1) and, on the other hand, the failure of guarantees to attain the level fixed by paragraphs 2 to 4 (art. 5-2, art. 5-3, art. 5-4). (i) On the necessity for derogation from paragraph 1 of Article 5 (art. 5-1) by extrajudicial deprivation of liberty 212. Unquestionably, the exercise of the special powers was mainly, and before 5 February 1973 even exclusively, directed against the IRA as an underground military force. The intention was to combat an organisation which had played a considerable subversive role throughout the recent history of Ireland and which was creating, in August 1971 and thereafter, a particularly far-reaching and acute danger for the territorial integrity of the United Kingdom, the institutions of the six counties and the lives of the province ’ s inhabitants (see paragraphs 16, 17, 20, 28-32, 35-42, 44, 47-48, 54-55, 58, 61, 63 and 67 above). Being confronted with a massive wave of violence and intimidation, the Northern Ireland Government and then, after the introduction of direct rule (30 March 1972), the British Government were reasonably entitled to consider that normal legislation offered insufficient resources for the campaign against terrorism and that recourse to measures outside the scope of the ordinary law, in the shape of extrajudicial deprivation of liberty, was called for. When the Irish Republic was faced with a serious crisis in 1957, it adopted the same approach and the Court did not conclude that the "extent strictly required" had been exceeded (Lawless judgment of 1 July 1961, Series A no. 3, pp. 35-36, para. 14, and pp. 57-58, para. 36). However, under one of the provisions complained of, namely Regulation 10, a person who was in no way suspected of a crime or offence or of activities prejudicial to peace and order could be arrested for the sole purpose of obtaining from him information about others - and this sometimes occurred (see paragraphs 38 and 81 above). This sort of arrest can be justifiable only in a very exceptional situation, but the circumstances prevailing in Northern Ireland did fall into such a category. Many witnesses could not give evidence freely without running the greatest risks (see paragraphs 36, 53, 58-59 and 74 above); the competent authorities were entitled to take the view, without exceeding their margin of appreciation, that it was indispensable to arrest such witnesses so that they could be questioned in conditions of relative security and not be exposed to reprisals. Moreover and above all, Regulation 10 authorised deprivation of liberty only for a maximum of forty-eight hours. 213. From 9 August 1971 to 5 February 1973, the measures involving deprivation of liberty taken by the respondent State were used only against Republican terrorism even though as early as this period outrages, at first sporadic but later constantly more numerous, were attributable to Loyalist terrorism; even after 5 February 1973, the measures were applied against Republican terrorism to a much greater extent than against Loyalist terrorism despite the latter ’ s organisation and extensive development shortly after 30 March 1972. The Court will examine below (paragraphs 228-232) whether the difference of treatment between the two types of terrorism was such as to violate Article 14 (art. 14) of the Convention. This issue apart, it appears to the Court that the extrajudicial measures brought into operation could, in the situation described above, reasonably have been considered strictly required for the protection of public security and that, in the context of Article 15 (art. 15), their intrinsic necessity, once recognised, could not be affected by the restriction of their field of application. 214. The Irish Government submit that experience shows extrajudicial deprivation of liberty to have been ineffectual. They contend that the policy introduced on 9 August 1971 not only failed to put a brake on terrorism but also had the result of increasing it (see paragraphs 42, 44 and 47-48 above). Consequently, the British Government, after attenuating the policy in varying degrees following the introduction of direct rule (see paragraphs 50, 57 and 64 above), abandoned it on 5 December 1975: since then, it appears that no one has been detained in the six counties under the emergency legislation, despite the persistence of an intense campaign of violence and even though the Emergency Provisions Amendment Act has remained in force (see paragraphs 76 and 91 above). This, claim the applicant Government, confirms that extrajudicial deprivation of liberty was not an absolute necessity. The Court cannot accept this argument. It is certainly not the Court ’ s function to substitute for the British Government ’ s assessment any other assessment of what might be the most prudent or most expedient policy to combat terrorism. The Court must do no more than review the lawfulness, under the Convention, of the measures adopted by that Government from 9 August 1971 onwards. For this purpose the Court must arrive at its decision in the light, not of a purely retrospective examination of the efficacy of those measures, but of the conditions and circumstances reigning when they were originally taken and subsequently applied. Adopting, as it must, this approach, the Court accepts that the limits of the margin of appreciation left to the Contracting States by Article 15 para. 1 (art. 15-1) were not overstepped by the United Kingdom when it formed the opinion that extrajudicial deprivation of liberty was necessary from August 1971 to March 1975. (ii) On the necessity for derogation from the guarantees under paragraphs 2 to 4 of Article 5 (art. 5-2, art. 5-3, art. 5-4) 215. The Court must now examine under Article 15 para. 1 (art. 15-1) the necessity for the far-reaching derogations found by it to have been made from paragraphs 2 to 4 of Article 5 (art. 5-2, art. 5-3, art. 5-4) (see paragraphs 198-200 above). 216. Neither Regulations 10 and 11 (1) nor section 10 of the Emergency Provisions Act afforded any remedy, judicial or administrative, against arrests effected there under. Although persons arrested under Regulation 11 (1) could, before 7 November 1972, apply to the Civil Authority for release on bail, the Terrorists Order deprived them of this right by revoking Regulation 11 (4) under which it arose. However, the duration of such arrests never exceeded forty-eight hours as regards Regulation 10, seventy-two hours as regards section 10 of the Emergency Provisions Act and, in practice, seventy-two hours as regards Regulation 11 (1) (see paragraphs 81-82 and 88 above). 217. Similarly, Regulation 11 (2), Article 4 of the Terrorists Order and paragraph 11 of Schedule 1 to the Emergency Provisions Act did not provide for any remedy. Detention under Regulation 11 (2) sometimes continued for longer than twenty-eight days, but it was never to be for an indefinite period and the detainee could, if the administrative authority agreed, apply to the courts for release on bail (Regulation 11 (4) and the McElduff case, judgment of 12 October 1971). On the other hand, interim custody imposed under Article 4 of the Terrorists Order, or subsequently under paragraph 11 of Schedule 1 to the Emergency Provisions Act, continued until adjudication by the commissioner; the Chief Constable invariably referred the case to him within the initial twenty-eight day time-limit but the commissioner gave his decision after several weeks or even after six months (see paragraphs 83, 86 and 88 above). 218. Individuals deprived of their liberty under Regulation 12 (1), Article 5 of the Terrorists Order or paragraph 24 of Schedule 1 to the Emergency Provisions Act were in many cases interned or detained for some years. Nevertheless, the advisory committee set up by Regulation 12 (1) afforded, notwithstanding its non-judicial character, a certain measure of protection that cannot be discounted. By establishing commissioners and an appeal tribunal, the Terrorists Order brought further safeguards which were somewhat strengthened by the Emergency Provisions Act (see paragraphs 84, 87 and 88 above). 219. There was in addition the valuable, if limited, review effected by the courts, when the opportunity arose, by virtue of the common law (see, for example, the McElduff case, judgment of 12 October 1971 on Regulations 11 (1) and 11 (2), the Moore case, judgment of 18 February 1972 on Regulation 10 and the Kelly case, judgment of 11 January 1973 on Regulations 11 (1), 11 (2) and 12 (1); paragraphs 81-84 above). 220. An overall examination of the legislation and practice at issue reveals that they evolved in the direction of increasing respect for individual liberty. The incorporation right from the start of more satisfactory judicial, or at least administrative, guarantees would certainly have been desirable, especially as Regulations 10 to 12 (1) dated back to 1956-1957 and were made under an Act of 1922, but it would be unrealistic to isolate the first from the later phases. When a State is struggling against a public emergency threatening the life of the nation, it would be rendered defenceless if it were required to accomplish everything at once, to furnish from the outset each of its chosen means of action with each of the safeguards reconcilable with the priority requirements for the proper functioning of the authorities and for restoring peace within the community. The interpretation of Article 15 (art. 15) must leave a place for progressive adaptations. The Northern Ireland Government sought in the first place - unsuccessfully - to meet the most pressing problem, to stem the wave of violence that was sweeping the region. After assuming direct responsibility for the future of the province, the British Government and Parliament lost little time in moderating in certain respects the severity of the laws applied in the early days. The Court asked itself whether those laws should not have been attenuated even more, especially as regards interim custody (see paragraph 217 above), but does not consider that it can give an affirmative answer. It must not be forgotten that the crisis experienced at the time by the six counties was serious and, hence, of a kind that justified far-reaching derogations from paragraphs 2 to 4 of Article 5 (art. 5-2, art. 5-3, art. 5-4). In view of the Contracting States ’ margin of appreciation, the Court does not find it established that the United Kingdom exceeded in this respect the "extent strictly required" referred to in Article 15 para. 1 (art. 15-1). 221. According to the applicant Government, the non-contested violations of Article 3 (art. 3) are relevant under Articles 5 and 15 (art. 15+5) taken together. They claim that deprivation of liberty was sometimes imposed on the strength of information extracted in conditions contrary to Article 3 (art. 3) and was thereby rendered unlawful under Article 15 (art. 15). The Irish argument is also said to be confirmed by the existence of those violations since they would probably have been prevented by the impugned legislation if it had afforded genuine guarantees to the persons concerned. The Court emphasises, as do the respondent Government and the Commission that Articles 3 and 5 (art. 3, art. 5) embody quite separate obligations. Moreover, the violations of Article 3 (art. 3) found in the present judgment fail to show that it was not necessary to apply the extrajudicial powers in force. 3. On the "other obligations under international law" 222. Article 15 para. 1 (art. 15-1) in fine prohibits any derogation inconsistent "with other obligations under international law". There is nothing in the data before the Court to suggest that the United Kingdom disregarded such obligations in this case; in particular, the Irish Government never supplied to the Commission or the Court precise details on the claim formulated or outlined on this point in their application of 16 December 1971. 4. On the observance of paragraph 3 of Article 15 (art. 15-3) 223. The Court finds proprio motu, in the light of its Lawless judgment of 1 July 1961 (Series A no. 3, pp. 61-62, para. 47), that the British notices of derogation dated 20 August 1971, 23 January 1973 and 16 August 1973 (see paragraphs 80, 85 and 88 above) fulfilled the requirements of Article 15 para. 3 (art. 15-3). 5. Conclusion 224. The Court has accordingly come to the conclusion that, since the requirements of Article 15 (art. 15) were met, the derogations from Article 5 (art. 5) were not, in the circumstances of the case, in breach of the Convention. C. On Article 14 taken together with Article 5 (art. 14+5) 225. Article 14 (art. 14) provides: "The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status." Before 5 February 1973, the extrajudicial powers were employed only against persons suspected of engaging in, or of possessing information about, IRA terrorism; later on, they were also utilised, but to a far lesser extent, against supposed Loyalist terrorists. According to the applicant Government, the circumstances of the case show that the United Kingdom thereby followed a policy or practice of discrimination. 226. The principal submission of the Irish Government is that it would not be correct to apply here the criteria used by the Court, in the field of Article 14 (art. 14) since its judgment of 23 July 1968 on the merits of the "Belgian Linguistic" case (Series A no. 6, pp. 34-35, para. 10). The Government ’ s argument runs as follows: those criteria are applicable only where a respondent State admits having introduced a difference of treatment and where that difference is expressly permitted by legislation; however, the British Government pleaded before the Commission not the existence of an "objective and reasonable justification" but rather the complete absence of such a difference, and the inequalities found in the report of 25 January 1976 arose from the mere application of laws which themselves created no inequalities; therefore the Commission was in error in applying those criteria; the Court should depart therefrom and rely on a number of inferences which, in the applicant Government ’ s view, indicate that those inequalities were discriminatory. The Court ’ s case-law does not, in fact, make the distinctions which the Irish Government seek to draw therefrom. That case-law was confirmed by the Court when, for example, it examined under Article 14 (art. 14) claims relating, like those in the present case, to the mere application of a law (Swedish Engine Drivers ’ Union judgment of 6 February 1976, Series A no. 20, p. 17, paras. 45 in fine and 46; Schmidt and Dahlström judgment of 6 February 1976, Series A no. 21, p. 17, paras. 39 in fine and 40; Engel and others judgment of 8 June 1976, Series A no. 22, p. 42, paras. 102 in fine, and 103 in fine; Handyside judgment of 7 December 1976, Series A no. 24, pp. 30-31, para. 66). The Court sees no reason for departing from that case-law on this occasion. 227. The applicant Government submits, in the alternative, that the difference of treatment in question lacked an "objective and reasonable justification". 228. Before ruling on this submission, the Court must examine why, as early as 1971, Loyalist terrorism was not fought with the same weapons as Republican terrorism (see paragraphs 37-38 above). The Court finds that there were profound differences between Loyalist and Republican terrorism. At the time in question, the vast majority of murders, explosions and other outrages were attributable to Republicans. Although Loyalists had begun towards 1963 to perpetrate acts of violence, reaching a high level in 1969 when the IRA was scarcely in evidence (see paragraphs 20-28 above), since 1970 the scale of their activities had been minute in comparison with those of the IRA (see paragraphs 29-32, 37, 45 and 47 above). In the second place, the IRA, with its far more structured organisation, constituted a far more serious menace than the Loyalist terrorists. In 1970 and 1971 the Protestant community included political pressure groups with extremist tendencies, but apparently concealed within its ranks no underground military force akin to the IRA. At that time Loyalist terrorism was seen by the authorities as the sporadic work of individuals or isolated factions (see paragraph 37 above). Lastly, it was as a general rule easier to institute criminal proceedings against Loyalist terrorists than against their Republican counterparts and the former were frequently brought before the courts. Accordingly, although Loyalist terrorists were not extra judicially deprived of their liberty, they do not seem to have been able to act with impunity. 229. The later period ( 30 March 1972 - 4 February 1973 ) gives rise to delicate questions. When assuming direct rule of the province (30 March 1972), the United Kingdom Government and Parliament wished, amongst other things, to combat the discrimination long prevalent there in the area of electoral rights, employment, housing, etc., in the hope of reaching an equitable solution to the Northern Ireland problem (see paragraphs 50, 60 and 77 above). However, this approach did not have a consequence which might have been expected, namely a complete equality of treatment between the two categories of terrorists in the exercise of the special powers. Shortly after 30 March 1972, there was a spectacular increase in Loyalist terrorism. Furthermore, the UVF proved to have increased its membership, expanded its holding of arms and improved its organisation. Towards the middle of the year, the police as a general rule had reasonably good intelligence as to the identity of violent elements on the Protestant side but there were cases in which it was impossible to procure sufficient evidence to bring them before the courts. Nevertheless, about ten months elapsed before the first two Loyalists were extra judicially deprived of their liberty (see paragraphs 52-53, 57, 61-62 and 66 above). Several explanations for what is at first sight a surprising time-lag are advanced by the respondent Government and the Commission, for example the three combined facts that it had been decided to attempt the phasing-out of internment, that the IRA were still responsible for the great majority of serious acts of terrorism and that, broadly speaking, the ordinary criminal processes remained far more suited to the campaign against the Loyalist terrorists than to that against their Republican opponents (see paragraphs 50, 54-58, 61 and 63 above). The cause or causes behind the conduct of the Government and the security forces at the time cannot be determined with certainty from the evidence, but it seems beyond doubt that the reasons that had been influential before 30 March 1972 became less and less valid as time went on. However, the Court considers it unrealistic to carve into clear-cut phases a situation that was inherently changing and constantly evolving. The Court can understand the authorities ’ hesitating about the course to take, feeling their way and needing a certain time to try to adapt themselves to the successive demands of an ugly crisis. On the basis of the data before it, and bearing in mind the limits on its powers of review, the Court cannot affirm that, during the period under consideration, the United Kingdom violated Article 14, taken together with Article 5 (art. 14+5), by employing the emergency powers against the IRA alone. 230. To sump up, the aim pursued until 5 February 1973 – the elimination of the most formidable organisation first of all – could be regarded as legitimate and the means employed do not appear disproportionate. 231. 5 February 1973 marked a turning-point. Thereafter, extrajudicial deprivation of liberty was used to combat terrorism as such, as defined a few months previously by the 1972 Order, and no longer just a given organisation. In point of fact, the measures were not applied against Loyalist terrorists to anything like the same extent as against the IRA (see paragraph 69 above), but the IRA were still committing the majority of the acts of terrorism (see paragraph 67 above). Furthermore, Loyalist terrorists could still be brought before the courts more easily than their Republican counterparts. Criminal proceedings were opened against many of the former and often led to convictions, above all in one particular field – sectarian assassinations (see paragraphs 67, 70 and 76 above). The Court cannot reproach the United Kingdom for having attempted to avail itself as far as possible of this procedure under the ordinary law. Taking into account, as it must, the full range of the processes of the law applied in the campaign against the two categories of terrorists, the Court finds that the initial difference of treatment did not continue during the last period considered. 232. Accordingly, no discrimination contrary to Articles 14 and 5 (art. 14+5) taken together is established. III. ON ARTICLE 6 (art. 6) 233. The substance of further claims made by the applicant Government is that - the various powers concerning extrajudicial deprivation of liberty which were used in Northern Ireland from 9 August 1971 to March 1975 did not satisfy the conditions prescribed by Article 6 (art. 6); - those powers violated Article 6 (art. 6) since they were not in full conformity with the requirements of Article 15 (art. 15); - those powers were furthermore implemented with discrimination and consequently also violated Article 14 taken together with Article 6 (art. 14+6). 234. Article 6 (art. 6) provides as follows: "1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice. 2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. 3. Everyone charged with a criminal offence has the following minimum rights: (a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; (b) to have adequate time and facilities for the preparation of his defence; (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; (e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court." 235. The applicability of Article 6 (art. 6) to the present case is a subject of controversy before the Court and is disputed by the respondent Government and the Commission. Argument has centred on whether there is room for the cumulative application of Articles 5 and 6 (art. 5, art. 6), whether the right to liberty is a "civil right" and whether the function of the commissioners and the appeal tribunal, under the Terrorists Order and the Emergency Provisions Act, was the "determination" of a "criminal charge". The Court does not consider it necessary to give a decision on this point. The applicant Government are complaining here of the same measures as under Article 5 (art. 5). However, assuming Article 6 (art. 6) to be material, the derogations from the guarantees of a judicial nature afforded by Article 5 (art. 5) perforce involved derogating from those afforded by Article 6 (art. 6). The Court has already held that the derogations from Article 5 (art. 5) met the requirements of Article 15 (art. 15) (see paragraph 224 above); in the circumstances of the case, it arrives at the same conclusion as regards the derogations from Article 6 (art. 6). In addition, the Court has held that no discrimination contrary to Articles 14 and 5 (art. 14+5) taken together is established (see paragraph 232 above); it likewise finds no discrimination with respect to Article 6 (art. 6). IV. ON ARTICLE 1 (art. 1) 236. The Irish Government ’ s submission is as follows: the laws in force in the six counties did not in terms prohibit violations of the rights and freedoms protected by Articles 3, 5, 6 and 14 (art. 3, art. 5, art. 6, art. 14); several of those laws, as well as certain administrative practices, even authorised or permitted such violations; the United Kingdom was thereby in breach, in respect of each of those Articles (art. 3, art. 5, art. 6, art. 14), of an inter-State obligation separate from its obligations towards individuals and arising from Article 1 (art. 1) which provides: "The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of [the] Convention." Neither the British Government nor the Commission in its report concur with this argument. They consider, briefly, that Article 1 (art. 1) cannot be the subject of a separate breach since it grants no rights in addition to those mentioned in Section I. 237. In their memorial of 26 October 1976, the respondent Government also stressed that the Commission had accepted only one of the two issues raised by this claim, namely the issue concerning administrative practices. The applicant Government replied that the issue of the legislative measures was also referred to in paragraph 7 of the reasons for the decision of 1 October 1972, that the operative provisions of that decision had not declared that issue inadmissible and that the Commission had examined it on the merits. The delegates expressed a similar opinion. At the hearings in February 1977, the British Government withdrew this preliminary plea in the light, inter alia, of the Handyside judgment of 7 December 1976 (Series A no. 24, pp. 19-20, para. 41). The Court takes note of this withdrawal; it does not consider that it has to give a ruling on a question which does not concern public order ( ordre public), which apparently was not raised before the Commission (De Wilde, Ooms and Versyp judgment of 18 June 1971, Series A no. 12, p. 30, para. 54) and which, anyway, appears to have been overtaken by events. 238. Article 1 (art. 1), together with Articles 14, 2 to 13 and 63 (art. 14, art. 2, art. 3, art. 4, art. 5, art. 6, art. 7, art. 8, art. 9, art. 10, art. 11, art. 12, art. 13, art. 63), demarcates the scope of the Convention ratione personae, materiae and loci; it is also one of the many Articles that attest the binding character of the Convention. Article 1 (art. 1) is drafted by reference to the provisions contained in Section I and thus comes into operation only when taken in conjunction with them; a violation of Article 1 (art. 1) follows automatically from, but adds nothing to, a breach of those provisions; hitherto, when the Court has found such a breach, it has never held that Article 1 (art. 1) has been violated ( Neumeister judgment of 27 June 1968, Series A no. 8, p. 41, para. 15, and p. 44; judgment of 23 July 1968 on the merits of the "Belgian Linguistic" case, Series A no. 6, pp. 70 in fine and 87, para. 1; Stögmüller judgment of 10 November 1969, Series A no. 9, p. 45; De Wilde, Ooms and Versyp judgment of 18 June 1971, Series A no. 12, p. 43, para. 80, and p. 47, para. 4; Ringeisen judgment of 16 July 1971, Series A no. 13, p. 45, para. 109 in fine, and p. 46, paras. 5-6; Golder judgment of 21 February 1975, Series A no. 18, p. 20, para. 40 in fine, p. 22, para. 45 in fine, and p. 23, paras. 1-2; Engel and others judgment of 8 June 1976, Series A no. 22, p. 29, para. 69 in fine, p. 37, para. 89 in fine, and p. 45, paras. 4, 5 and 11). 239. However, the Irish Government ’ s argument prompts the Court to clarify the nature of the engagements placed under its supervision. Unlike international treaties of the classic kind, the Convention comprises more than mere reciprocal engagements between contracting States. It creates, over and above a network of mutual, bilateral undertakings, objective obligations which, in the words of the Preamble, benefit from a "collective enforcement". By virtue of Article 24 (art. 24), the Convention allows Contracting States to require the observance of those obligations without having to justify an interest deriving, for example, from the fact that a measure they complain of has prejudiced one of their own nationals. By substituting the words "shall secure" for the words "undertake to secure" in the text of Article 1 (art. 1), the drafters of the Convention also intended to make it clear that the rights and freedoms set out in Section I would be directly secured to anyone within the jurisdiction of the Contracting States (document H (61) 4, pp. 664, 703, 733 and 927). That intention finds a particularly faithful reflection in those instances where the Convention has been incorporated into domestic law (De Wilde, Ooms and Versyp judgment of 18 June 1971, Series A no. 12, p. 43, para. 82; Swedish Engine Drivers ’ Union judgment of 6 February 1976, Series A no. 20, p. 18, para. 50). The Convention does not merely oblige the higher authorities of the Contracting States to respect for their own part the rights and freedoms it embodies; as is shown by Article 14 (art. 14) and the English text of Article 1 (art. 1) ("shall secure"), the Convention also has the consequence that, in order to secure the enjoyment of those rights and freedoms, those authorities must prevent or remedy any breach at subordinate levels. 240. The problem in the present case is essentially whether a Contracting State is entitled to challenge under the Convention a law in abstracto. The answer to this problem is to be found much less in Article 1 (art. 1) than in Article 24 (art. 24). Whereas, in order to be able to lodge a valid petition, a "person, non-governmental organisation or group of individuals" must, under Article 25 (art. 25), claim "to be the victim of a violation ... of the rights set forth", Article 24 (art. 24) enables each Contracting State to refer to the Commission "any alleged breach of [any of] the provisions of the Convention by another [State]". Such a "breach" results from the mere existence of a law which introduces, directs or authorises measures incompatible with the rights and freedoms safeguarded; this is confirmed unequivocally by the travaux préparatoires (document H (61) 4, pp. 384, 502, 703 and 706). Nevertheless, the institutions established by the Convention may find a breach of this kind only if the law challenged pursuant to Article 24 (art. 24) is couched in terms sufficiently clear and precise to make the breach immediately apparent; otherwise, the decision of the Convention institutions must be arrived at by reference to the manner in which the respondent State interprets and applies in concreto the impugned text or texts. The absence of a law expressly prohibiting this or that violation does not suffice to establish a breach since such a prohibition does not represent the sole method of securing the enjoyment of the rights and freedoms guaranteed. 241. In the present case, the Court has found two practices in breach of Article 3 (art. 3) (see paragraphs 168 and 174 above). Those practices automatically infringed Article 1 (art. 1) as well, but this is a finding which adds nothing to the previous finding (see paragraph 238 above) and which there is no reason to include in the operative provisions of this judgment. Examination in abstracto of the legislation in force at the relevant time in Northern Ireland reveals that it never introduced, directed or authorised recourse to torture or to inhuman or degrading treatment. On the contrary, it forbade any such ill-treatment in increasingly clear terms (see paragraphs 134-136 above). More generally, as from the end of August 1971 the higher authorities in the United Kingdom took a number of appropriate steps to prevent or remedy the individual violations of Article 3 (art. 3) (see paragraphs 99-101, 133 and 137-143 above). 242. With regard to Article 14 taken together with Articles 15, 5 and 6 (art. 14+15, art. 14+5, art. 14+6), the applicant Government do not challenge the legislation as such. Moreover, it did not introduce, direct or authorise any discrimination in the exercise of the extrajudicial powers. The claim concerns only the legislation ’ s application, in respect of which the Court has not found any violation (see paragraphs 228-232 and 235 above). 243. As for Article 15 taken together with Articles 5 and 6 (art. 15+5, art. 15+6), on the other hand, the legislation itself is criticised by the Irish Government. Certain aspects of the legislation do give rise to doubts. Neither Regulations 11 (1) and 11 (2), nor Article 4 of the Terrorists Order, nor paragraph 11 of Schedule 1 to Emergency Provisions Act set any limit on the duration of the deprivation of liberty they authorised. Furthermore, they did not afford to the persons concerned any judicial or administrative remedy beyond the restricted right to apply for bail, a right that was moreover abolished on 7 November 1972 with the revocation of Regulation 11 (4) (see paragraphs 82, 83 and 85 above). These provisions differed, on the first point, from Regulation 10 (forty-eight hours) and section 10 of the Emergency Provisions Act (seventy-two hours) and, on the second, from Regulation 12 (1) (advisory committee), Article 6 of the Terrorists Order (appeal tribunal) and paragraphs 26 to 34 of Schedule 1 to the Emergency Provisions Act (idem). The first-mentioned shortcoming resulted, however, from the mere silence of the legislation and was mitigated in practice (maximum of seventy-two hours for Regulation 11 (1) and, in general, twenty-eight days for Regulation 11 (2)). The second shortcoming appears more serious, especially as regards Regulation 11 (2), Article 4 of the Terrorists Order and paragraph 11 of Schedule 1 to the Emergency Provisions Act; preferably, it should have been avoided. However, the deficiency was in part made good by the ordinary courts of the province by virtue of the common law (the McElduff case, judgment of 12 October 1971, and the Kelly case, judgment of 11 January 1973, Regulations 11 (1) and (2)). Above all, one is dealing with special legislation designed to combat a public emergency threatening the life of the nation; such provisions cannot be torn out of context without leading to arbitrary results. It was hardly possible for this legislation to forecast in a rigid and inflexible manner the frontiers of the demands of an inherently fluid and changing situation; the massive scale of the outrages and the large number of the persons arrested, detained and interned prevented the provision of guarantees similar to those required by the Convention. In 1972 and 1973, the British authorities attenuated the severity of the original legislation, thereby demonstrating their concern not to go beyond the "extent strictly required by the exigencies" of the circumstances. On this, a question of fact rather than of law, the said authorities enjoyed a margin of appreciation which they do not seem to have exceeded. Here again, the Court considers that it would be unrealistic to isolate the first from the later phases (see paragraphs 220, first sub-paragraph, and 229, sixth sub-paragraph, above); as regards the legislation as such, the Court does not feel able to arrive at conclusions conflicting with its decision on the application of that legislation (see paragraphs 214 and 220 above). Accordingly, on this issue no breach of Articles 5, 6 (art. 5, art. 6) - assuming the latter Article (art. 6) to be applicable in this case (see paragraph 235 above) - and 15, taken together with Articles 1 and 24 (art. 15+1, art. 15+24), is found to be established. V. ON ARTICLE 50 (art. 50) 244. Under Article 50 (art. 50) of the Convention, if the Court finds, as in the present case, "that a decision or a measure taken" by any authority of a Contracting State "is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said [State] allows only partial reparation to be made for the consequences of this decision or measure", the Court "shall, if necessary, afford just satisfaction to the injured party". The Rules of Court specify that when the Court "finds that there is a breach of the Convention, it shall give in the same judgment a decision on the application of Article 50 (art. 50) of the Convention if that question, after being raised under Rule 47 bis, is ready for decision; if the question is not ready for decision, the [Court] shall reserve it in whole or in part and shall fix the further procedure" (Rule 50 para. 3, first sentence, read in conjunction with Rule 48 para. 3). 245. The President, acting on behalf of the Court, instructed the Registrar to ask the Agent of the Irish Government to indicate "as soon as possible whether it would be correct to assume, particularly in the light" of certain passages in the Commission ’ s decision on the admissibility of the application and in the verbatim report of the public hearings held in February 1977, "that [his] Government [were not inviting] the Court, should it find a violation of the Convention, to afford just satisfaction within the meaning of Article 50 (art. 50)". This the Registrar did by letter of 8 August 1977. On 14 October 1977, the Agent of the applicant Government replied as follows: "... the applicant Government, while not wishing to interfere with the de bene esse jurisdiction of the Court, have not as an object the obtaining of compensation for any individual person and do not invite the Court to afford just satisfaction under Article 50 (art. 50), of the nature of monetary compensation, to any individual victim of a breach of the Convention. ..." 246. The Court accordingly considers that it is not necessary to apply Article 50 (art. 50) in the present case. | The Court noted that in this matter Article 15 of the Convention left a wide margin of appreciation to States. It fell in the first place to each State, with its responsibility for "the life of [its] nation", to determine whether that life was threatened by a "public emergency" and, if so, how far it was necessary to go in attempting to overcome the emergency. By reason of their direct and continuous contact with the pressing needs of the moment, the national authorities were in principle in a better position than the international judge to decide both on the presence of such an emergency and on the nature and scope of derogations necessary to avert it. Nevertheless, the States did not enjoy an unlimited power in this respect and the Court thus had to ascertain whether they had gone beyond the "extent strictly required by the exigencies" of the crisis. In this case the Court did not find it established, having regard to the margin of appreciation afforded to Contracting States, that the United Kingdom had exceeded the "extent strictly required" by the exigencies of the situation, within the meaning of Article 15 § 1 de la Convention. |
690 | Apology of violence and incitement to hostility | II. relevant domestic law A. The criminal law The Prevention of Terrorism Act (Law no. 3713 of 12 April 1991) [1] 16. The relevant provisions of the Prevention of Terrorism Act 1991 read as follows: Section 6 “It shall be an offence, punishable by a fine of from five million to ten million Turkish liras, to announce, orally or in the form of a publication, that terrorist organisations will commit an offence against a specific person, whether or not that person’s ... identity is divulged, provided that it is done in such a manner that he or she may be identified, or to reveal the identity of civil servants who have participated in anti-terrorist operations or to designate any person as a target. It shall be an offence, punishable by a fine of from five million to ten million Turkish liras, to print or publish declarations or leaflets emanating from terrorist organisations. … Where the offences contemplated in the above paragraphs are committed through the medium of periodicals within the meaning of section 3 of the Press Act (Law no. 5680), the publisher shall also be liable to a fine equal to ninety per cent of the income from the average sales for the previous month if the periodical appears more frequently than monthly, or from the sales of the previous issue if the periodical appears monthly or less frequently, or from the average sales for the previous month of the daily newspaper with the largest circulation if the offence involves printed matter other than periodicals or if the periodical has just been launched. [2] However, the fine may not be less than fifty million Turkish liras. The editor of the periodical shall be ordered to pay a sum equal to half the fine imposed on the publisher.” B. The National Security Courts 17. The relevant provisions of domestic law governing the organisation and procedure of the National Security Court are quoted in paragraphs 32 ‑ 33 of the Sürek no. 1 v. Turkey judgment, which is being delivered on the same date as the present judgment. PROCEEDINGS BEFORE THE COMMISSION 18. Mr Kamil Tekin Sürek applied to the Commission on 9 March 1994. He complained that his conviction and sentence constituted an unjustified interference with his right to freedom of expression as guaranteed by Article 10 of the Convention and that his case had not been heard by an independent and impartial tribunal, in breach of Article 6 § 1 of the Convention. He also maintained that the criminal proceedings against him had not been concluded within a reasonable time, which gave rise to a separate violation of Article 6 § 1. 19. The Commission declared the application (no. 24122/94) admissible on 2 September 1996, with the exception of the applicant’s Article 6 § 1 complaint relating to the length of the criminal proceedings in his case. In its report of 13 January 1998 (former Article 31), it expressed the opinion that there had been no violation of Article 10 of the Convention (23 votes to 9) and that there had been a violation of Article 6 § 1 (31votes to 1). The full text of the Commission’s opinion and of the two separate opinions contained in the report is reproduced as an annex to this judgment [1]. FINAL SUBMISSIONS TO THE COURT 20. The applicant requested the Court to find the respondent State in breach of its obligations under Articles 6 § 1 and 10 of the Convention and to award him just satisfaction under Article 41. The Government for their part invited the Court to reject the applicant’s complaints. AS TO THE LAW I. alleged violation of article 10 oF THE CONVENTION 21. The applicant alleged that the authorities had unjustifiably interfered with his right to freedom of expression guaranteed under Article 10 of the Convention, which provides: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” 22. The Government maintained that the interference with the applicant’s right to freedom of expression was justified under the provisions of the second paragraph of Article 10. The Commission agreed with the Government on this point. A. Existence of an interference 23. The Court notes that it is clear, and this has not been disputed, that there has been an interference with the applicant’s right to freedom of expression on account of his conviction and sentence under section 6 of the Prevention of Terrorism Act 1991 (hereinafter “the 1991 Act”). B. Justification of the interference 24. The interference contravened Article 10 unless it was “prescribed by law”, had one or more of the legitimate aims referred to in paragraph 2 of Article 10 and was “necessary in a democratic society” for achieving such aim or aims. The Court will examine each of these criteria in turn. 1. “Prescribed by law” 25. It was not disputed that the interference had a legal basis in section 6 of the 1991 Act and was thus "prescribed by law" within the meaning of Article 10 § 2 of the Convention. The Court does not see any reason for arriving at a contrary conclusion. 2. Legitimate aim 26. The applicant did not dispute that the interference pursued a legitimate aim under the second paragraph of Article 10 of the Convention. 27. The Government submitted that the measures had been imposed in the interests of national security and territorial integrity. 28. The Commission was of the opinion that the applicant’s conviction and sentence for the disclosure of the identities of certain officials pursued the legitimate aim of protection of the rights of others. The Commission left it open whether other aims, such as the protection of national security and public safety, were relevant. 29. The Court, having regard to the sensitivity of the security situation in south-east Turkey (see the Zana v. Turkey judgment of 25 November 1997, Reports 1997-VII, p. 2547, §§ 19 and 50) and to the need for the authorities to take particular steps to protect public officials involved in the fight against terrorism from being targeted for terrorist attack, considers that the contested measures can be said to have been taken in the interest of national security and territorial integrity and for the protection of the rights of others, which are legitimate aims under Article 10 § 2 of the Convention. 3. “Necessary in a democratic society” (a) Arguments of those appearing before the Court ( i ) The applicant 30. The applicant complained that although he was the owner of the review with no editorial responsibility for its content, he had nonetheless been punished under section 6 of the 1991 Act for the disclosure of the names of the public officials in question. He submitted that the impugned data had formed part of an objective news report aimed at providing the public with information given at a press conference by a delegation of public figures, in the wake of certain tensions at Şırnak in 1992. The publication did not praise the PKK. Nor did the review or the applicant himself have any links with that organisation. Finally, he stressed that the press declaration at issue had already been reported in other newspapers and that the incriminated news report added nothing to these reports. (ii) The Government 31. The Government maintained that the news report published by the applicant had contained unfounded accusations which, by virtue of the disclosure of the identity of certain officials involved in the fight against terrorism, had put their lives at danger from terrorist attack. As the owner of the review the applicant had participated in the dissemination of separatist propaganda by publishing a news report which, by attempting in a veiled but nonetheless obvious manner to vindicate a terrorist organisation, threatened fundamental interests of the national community such as territorial integrity, national unity and security and the prevention of crime and disorder. In the Government's submission, separatist propaganda inevitably incites to violence and provokes hostility among the various groups in Turkish society, thus endangering human rights and democracy. In the Government’s view the measures taken against the applicant did were within the authorities’ margin of appreciation in relation to the type of activity which endangers the vital interests of the State and the taking of these measures in the instant case found its justification under paragraph 2 of Article 10. (iii) The Commission 32. The Commission observed that, bearing in mind the general tension and the level of terrorism and violence occurring in south-east Turkey, the officials engaged in State action against terrorist groups in that area were frequently exposed to serious risks and therefore a high degree of protection was required. According to the findings of the National Security Court, the disclosure of the identities of the officials concerned had made them possible targets of terrorist attack. In the Commission's opinion, the incriminated news report, which in itself might have contained information of public interest, could well have been published without disclosure of the identities of the two officials concerned. It concluded that there had been no violation of Article 10 in the circumstances of the case. (b) The Court’s assessment 33. The Court reiterates the fundamental principles underlying its judgments relating to Article 10, as set out in, for example, its Zana v. Turkey judgment (cited above, pp. 2547-48, § 51) and in its Fressoz and Roire v. France judgment of 21 January 1999 ( Reports 1999-, p. …, § 45). ( i ) Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no “democratic society”. As set forth in Article 10, this freedom is subject to exceptions, which must, however, be construed strictly, and the need for any restrictions must be established convincingly. (ii) The adjective “necessary”, within the meaning of Article 10 § 2, implies the existence of a “pressing social need”. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a “restriction” is reconcilable with freedom of expression as protected by Article 10. (iii) In exercising its supervisory jurisdiction, the Court must look at the interference in the light of the case as a whole, including the content of the impugned statements and the context in which they were made. In particular, it must determine whether the interference in issue was “proportionate to the legitimate aims pursued” and whether the reasons adduced by the national authorities to justify it are “relevant and sufficient”. In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they based themselves on an acceptable assessment of the relevant facts. 34. The Court further recalls that there is little scope under Article 10 § 2 of the Convention for restrictions on political speech or on debate on questions of public interest (see the Wingrove v. the United Kingdom judgment of 25 November 1996 Reports 1996-V, p. 1957, § 58). The dominant position which the government occupies makes it necessary for it to display restraint in resorting to criminal proceedings, particularly where other means are available for replying to the unjustified attacks and criticisms of its adversaries. Nevertheless, it certainly remains open to the competent State authorities to adopt, in their capacity as guarantors of public order, measures, even of a criminal-law nature, intended to react appropriately and without excess to such remarks (see the Incal v. Turkey judgment of 9 June 1998, Reports 1998-IV, p. 1567, § 54). Finally, where such remarks incite to violence against an individual or a public official or a sector of the population, the State authorities enjoy a wider margin of appreciation when examining the need for an interference with freedom of expression. 35. Since the applicant was convicted of disclosing the identity of certain public officials through the medium of the review of which he was the owner, the impugned interference must also be seen in the context of the essential role of the press in ensuring the proper functioning of a political democracy (see among many other authorities, the Lingens v. Austria judgment of 8 July 1986, Series A, no. 103, p. 26, § 41; and the above ‑ mentioned Fressoz and Roire judgment, p…., § 45). While the press must not overstep the bounds set, inter alia, for the protection of vital interests of the State such as national security or territorial integrity against the threat of violence or the prevention of disorder or crime, it is nevertheless incumbent on the press to impart information and ideas on political issues, including divisive ones. Not only has the press the task of imparting such information and ideas; the public has a right to receive them. Freedom of the press affords the public one of the best means of discovering and forming an opinion of the ideas and attitudes of political leaders (see the above-mentioned Lingens judgment, p. 26 §§ 41-42). 36. The Court notes that the applicant’s conviction and sentence had been imposed on the ground that his review had published a news report identifying certain officials with certain statements suggesting misconduct on their part. While it is true that the applicant did not personally associate himself with the information contained in the news report, the Court does not accept his argument that he should be exonerated from any criminal liability for their contents on account of the fact that he only had a commercial and not an editorial relationship with the review. He was an owner and as such had the power to shape the editorial direction of the review. For that reason, he was vicariously subject to the “duties and responsibilities” which the review’s editorial and journalist staff undertake in the collection and dissemination of information to the public and which assume an even greater importance in situations of conflict and tension. 37. The applicant's conviction and sentence related, in the first place, to the fact that his publication had reported the Governor of Şırnak to have affirmed that the Şırnak Chief of Police had given order to open fire against the people. Secondly, it had quoted Leyla Zana, a former parliamentarian, as having stated that a named Gendarme Commander had told Orhan Doğan, also a former parliamentarian, that "[y]our death would give us pleasure. Your blood would not quench my thirst" (see paragraph 10 above). Thus, the wording of the statements clearly implied serious misconduct on the part of the police and gendarme officers in question. Although the statements were not presented in a manner which could be regarded as incitement to violence against the officers concerned or the authorities, they were capable of exposing the officers to strong public contempt. Moreover, the news report was published in the context of the security situation in south-east Turkey, where since approximately 1985 serious disturbances have raged between the security forces and the members of the PKK involving a very heavy loss of life and the imposition of emergency rule in much of the region (see the above-mentioned Zana judgment, p. 2539, § 10). 38. In the light of the foregoing, the Court sees no reason to doubt that the applicant's conviction and sentence were supported by reasons which were relevant for the purposes of the necessity test under paragraph 2 of Article 10. 39. As regards the further question whether the reasons relied on could also be considered sufficient, the Court observes that the contested interference related to journalistic reporting of statements made by certain politicians to the press concerning their visit to an area of Turkey where tensions had occurred (see the Jersild v. Denmark judgment of 23 September 1994, Series A no. 298, p. 23, § 31). The impugned news report simply reiterated what a police officer and a gendarme officer were said to have ordered or affirmed on specific occasions. Assuming that the assertions were true, the Court considers that, in view of the seriousness of the misconduct in question, the public had a legitimate interest in knowing not only the nature of the conduct but also the identity of the officers. However, the defences of truth (see the Castells v. Spain judgment of 23 April 1992, Series A no. 236, p. 24, §§ 47-48) and public interest could not have been pleaded under the relevant Turkish law. 40. Furthermore, it is undisputed that the press declaration on which the news report was based had already been reported in other newspapers and that the incriminated news coverage added nothing to those reports. Nor has it been submitted that other newspapers were prosecuted in respect of publication of information derived from the said declaration (see the Weber v. Switzerland judgment of 22 May 1990, Series A no. 177, p. 23, § 51). At the time of the publication of the news report in the present case, the information in issue, identifying specific police and gendarme officers with serious misconduct, was already in the public domain. Thus, the interest in protecting the identity of the officers concerned had been substantially diminished and the potential damage which the restriction was aimed at preventing had already been done (see the Observer and Guardian and the Sunday Times (no. 2) judgments of 26 November 1991, respectively Series A no. 216, pp. 34-35, §§ 69-71; and Series A no. 217, pp. 30-31, §§ 54-56). 41. Finally, the Court considers that the conviction and sentence were capable of discouraging the contribution of the press to open discussion on matters of public concern. 42. In the light of the above, the Court does not find that the objective of the Government in protecting the officers in question against terrorist attack was sufficient to justify the restrictions placed on the applicant's right to freedom of expression under Article 10 of the Convention. In the absence of a fair balance between the interests in protecting the freedom of the press and those in protecting the identity of the public officials in question, the interference complained of was disproportionate to the legitimate aims pursued. There has therefore been a breach of Article 10 of the Convention in the present case. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION A. The Government's preliminary objection 43. In their memorial to the Court the Government maintained that the applicant, not having raised before the domestic courts his complaint that his case had not been heard by an independent and impartial tribunal, had failed to exhaust domestic remedies as required by Article 35 of the Convention. 44. The Court reiterates that it takes cognisance of preliminary objections in so far as the State in question has already raised them, at least in substance and with sufficient clarity, before the Commission, in principle at the stage of the initial examination of admissibility (see, for instance, the Aytekin v. Turkey judgment of 23 September 1998, Reports of Judgments and Decisions 1998-VII, p. § 77). However, it does not appear from the observations submitted by the Government to the Commission that they objected, on the ground of non-exhaustion, to the admissibility of the above ‑ mentioned complaint. Accordingly, they are estopped from raising their preliminary objection. B. The merits of the applicant's complaint 45. The applicant complained that he had been denied a fair hearing in breach of the Article 6 § 1 of the Convention on account of the presence of a military judge on the bench of the National Security Court which tried and convicted him. In so far as is relevant Article 6 § 1 provides: “In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law...” 46. The Government contested this allegation whereas the Commission accepted it. 47. In the applicant’s submission the military judges appointed to the National Security Courts such as the Istanbul National Security Court were dependent on the executive, being appointed by the joint decree of the Minister of Defence and the Prime Minister subject to the approval of the President of the Republic. He pointed to the fact that their professional assessment and promotion as well as their security of tenure were within the control of the executive branch and in turn the army. The ties which bound them to the executive and to the army made it impossible for military judges to discharge their functions on the bench in an independent and impartial manner. The applicant further stressed that the independence and impartiality of military judges and hence of the courts on which they sat were compromised since these judges were unable to take a position which might be contradictory to the views of their commanding officers. The applicant stated that these considerations impaired the independence and impartiality of the Istanbul National Security Court and prevented him from receiving a fair trial, in violation of Article 6 § 1. 48. The Government replied that the rules governing the appointment of military judges to the National Security Courts and the guarantees which they enjoy in the performance of their judicial functions on the bench were such as to ensure that these courts fully complied with the requirements ofindependence and impartiality within the meaning of Article 6 § 1. The Government disputed the applicant’s argument that military judges were accountable to their superior officers. In the first place, it was an offence under section 112 of the Military Code for a public official to attempt to influence the performance by a military judge of his judicial functions (see paragraph 17 above). Secondly, the assessment reports referred to by the applicant related only to conduct of a military judge’s non-judicial duties. Military judges had access to their assessment reports and were able to challenge their content before the Military Supreme Administrative Court ( ibidem ). When acting in a judicial capacity a military judge was assessed in exactly the same manner as a civilian judge. 49. The Government further averred that the fairness of the applicant’s trial had not been prejudiced by reason of the presence of a military judge on the bench. They claimed that neither the military judge’s hierarchical authorities nor the public authorities which had appointed him to the court had any interest in the proceedings or in the outcome of the case. The Istanbul National Security Court's judgment was later upheld on appeal by the Court of Cassation, a court whose independence and impartiality have not been impugned (see paragraphs 13-15 above). 50. The Government also impressed upon the Court the need to have particular regard to the security context in which the decision to establish National Security Courts was taken pursuant to Article 143 of the Constitution. In view of the experience of the armed forces in the anti ‑ terrorism campaign the authorities had considered it necessary to strengthen these courts by including a military judge in order to provide them with the necessary expertise and knowledge to deal with threats to the security and integrity of the State. 51. The Commission concluded that the Istanbul National Security Court could not be considered an independent and impartial tribunal for the purposes of Article 6 § 1 of the Convention. The Commission referred in this respect to its opinion in the Incal v. Turkey case in its Article 31 report adopted on 25 February 1997 and the reasons supporting that opinion. 52. The Court recalls that in its Incal v. Turkey judgment of 9 June 1998 (Reports 1998-IV, p. 1504) and in its Çiraklar v. Turkey judgment of 28 October 1998 (Reports 1998-, p. …) the Court had to address arguments similar to those raised by the Government in their pleadings in the instant case. In those judgments the Court noted that the status of military judges sitting as members of National Security Courts did provide certain guarantees of independence and impartiality (see the above-mentioned Incal judgment, p. 1571, § 65). On the other hand, the Court found that some aspects of these judges’ status made their independence and impartiality questionable ( ibidem, § 68): for example, the fact that they are servicemenwho still belong to the army, which in turn takes its orders from the executive; or that they remain subject to military discipline; and the fact that decisions pertaining to their appointment are to a great extent taken by the administrative authorities and the army (see paragraph 17 above). 53. As in its Incal judgment the Court considers that its task is not to determine in abstracto the necessity for the establishment of National Security Courts in the light of the justifications advanced by the Government. Its task is to ascertain whether the manner in which the Istanbul National Security Court functioned infringed Mr Sürek’s right to a fair trial, in particular whether, viewed objectively, he had a legitimate reason to fear that the court which tried him lacked independence and impartiality (see the above-mentioned Incal judgment, p. 1572, § 70; and the above-mentioned Çiraklar judgment, p. …, § 38). As to that question, the Court sees no reason to reach a conclusion different from that in the cases of Mr Incal and Mr Çiraklar, both of whom, like the present applicant, were civilians. It is understandable that the applicant – prosecuted in a National Security Court for disclosing the identity of officials involved in the fight against terrorism - should have been apprehensive about being tried by a bench which included a regular army officer, who was a member of the Military Legal Service (see paragraph 17 above). On that account he could legitimately fear that the Istanbul National Security Court might allow itself to be unduly influenced by considerations which had nothing to do with the nature of the case. In other words, the applicant’s fears as to that court’s lack of independence and impartiality can be regarded as objectively justified. The proceedings in the Court of Cassation were not able to dispel these fears since that court did not have full jurisdiction (see the above ‑ mentioned Incal judgment, p.1573, § 72 in fine ). 54. For these reasons the Court finds that there has been a breach of Article 6 § 1. III. Application of ARTICLE 41 OF THE CONVENTION 55. The applicant claimed compensation for pecuniary and non ‑ pecuniary damage as well as reimbursement of costs and expenses incurred in the domestic and Convention proceedings. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Pecuniary damage 56. The applicant claimed the sum of 100, 000 French francs (FRF) by way of compensation for the fine imposed on him and paid (see paragraph 13 above). The amount claimed included interest accrued, took account of the high rate of inflation in the respondent State and was calculated on the basis of an exchange rate from 1992. 57. The Government maintained that the sum claimed by the applicant was exorbitant having regard to the fact that the applicant was only fined 54,000,000 Turkish liras and he was allowed to pay the fine in monthly instalments. 58. The Delegate of the Commission did not comment. 59. The Court cannot speculate as to what the outcome of proceedings compatible with Article 6 § 1 would have been, but has found that the respondent State is in breach of Article 10 on account of the applicant’s conviction and sentence. Having regard to the rates of exchange during the relevant period, it considers that in the circumstances the applicant should be awarded FRF 13,000 in respect of pecuniary damage. B. Non-pecuniary damage 60. The applicant claimed that as a lawyer his career had been blighted on account of the fact that he has a conviction recorded against him for an offence of terrorism. He requested the Court to award him the sum of FRF 80,000 by way of compensation for moral damage. 61. The Government argued that if the Court were minded to find a violation in this case that finding would constitute in itself sufficient just satisfaction under this head. 62. The Delegate of the Commission did not comment on this limb of the applicant’s claim either. 63. The Court considers that the applicant may be taken to have suffered distress on account of the facts of the case. Making an assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards the applicant in compensation the sum of FRF 30,000 under this head. C. Costs and expenses 64. The applicant claimed the legal costs and expenses (translation, postal, communications and travel expenditure) which he incurred in the proceeding before the domestic courts and the Convention institutions. He assessed these at 50,000 FRF. As to the proceedings before the Commission and Court he stated that his lawyer’s fees were based on the Turkish Bar Association’s minimum rate scales. The applicant added that the total amount claimed took account of the high level of inflation in Turkey and was based on current exchange rates. 65. The Government stated that the amount claimed was exaggerated in comparison with fees earned by Turkish lawyers in the domestic courts and had not been properly justified. The case was simple and had not required much effort on the part of the applicant’s lawyer who had dealt with it throughout the proceedings in his own language. They cautioned against the making of an award which would only constitute a source of unjust enrichment having regard to the socio-economic situation in the respondent State. 66. The Delegate of the Commission did not comment. 67. The Court notes that the applicant’s lawyer has been associated with the preparation of other cases before the Court concerning complaints under Articles 6 and 10 of the Convention which are based on similar facts. Deciding on an equitable basis and according to the criteria laid down in its case-law (see, among many other authorities, the above-mentioned Nikolova v. Bulgaria judgment Reports 1999-... p. …, § 79), the Court awards the applicant the sum of FRF 15,000. D. Default interest 68. The Court deems it appropriate to adopt the statutory rate of interest applicable in France at the date of adoption of the present judgment which, according to the information available to it, is 3.47 % per annum. | The Court held that there had been no violation of Article 10 (freedom of expression). It noted that the impugned letters amounted to an appeal to bloody revenge and that one of them had identified persons by name, stirred up hatred for them and exposed them to the possible risk of physical violence. Although the applicant had not personally associated himself with the views contained in the letters, he had nevertheless provided their writers with an outlet for stirring up violence and hatred. The Court considered that, as the owner of the review, he had been vicariously subject to the duties and responsibilities which the review’s editorial and journalistic staff undertook in the collection and dissemination of information to the public, and which assumed even greater importance in situations of conflict and tension. |
911 | Tribunal established by law | RELEVANT LEGAL FRAMEWORK AND PRACTICE DOMESTIC LAW AND PRACTICEDomestic lawIcelandic Constitution Domestic lawIcelandic Constitution Icelandic Constitution Domestic lawIcelandic Constitution Icelandic Constitution Icelandic Constitution 101. The relevant provisions of the Icelandic Constitution ( Stjórnarskrá lýðveldisins Íslands ) read as follows: Article 2 “ Althingi and the President of Iceland jointly exercise legislative power. The President and other governmental authorities referred to in this Constitution and elsewhere in the law exercise executive power. Judges exercise judicial power.” Article 59 “The organisation of the judiciary can only be established by law.” Article 60 “Judges settle all disputes regarding the competence of the authorities. No one seeking a ruling thereon can, however, temporarily evade obeying an order from the authorities by submitting the matter for judicial decision.” Article 61 “In the performance of their official duties, judges shall be guided solely by the law. Those judges who do not also have administrative functions cannot be discharged from office except by a judicial decision, nor may they be transferred to another office against their will, except in the event of reorganisation of the judiciary ...” Article 70 “Everyone shall, for the determination of his rights and obligations or in the event of criminal charge against him, be entitled, following a fair trial and within a reasonable time, to the determination of an independent and impartial court of law. A hearing by a court of law shall take place in public, unless the judge decides otherwise as provided for by law in the interest of morals, public order, the security of the State or the interests of the parties. Everyone charged with criminal conduct shall be presumed innocent until proven guilty.” The Judiciary Acts (a) Act no. 92/1989 on the Separation of the Executive and the Judiciary at the District Level 102. Section 5 of Act no. 92/1989 on the Separation of the Executive and the Judiciary at the District Level ( Lög um framkvæmdarvald ríkisins í héraði ), which concerned the appointment of a committee to evaluate the competencies of candidates for posts of judge at District Courts, provided as follows: “... The Minister of Justice shall appoint a committee every four years, to evaluate the competencies of candidates for the post of District Court judge. The committee shall be composed of three members, one of whom shall be nominated by the Supreme Court and shall serve as chair of the committee. The Association of Judges shall nominate another member of the committee from amongst District Court judges and the Bar Association shall nominate the third from amongst practising lawyers. The same parties shall nominate reserve members of the committee. The committee shall give written and reasoned evaluations of the candidates to the Minister of Justice. The Minister of Justice shall set out more detailed rules on the work of the committee.” (b) Judiciary Act no. 15/1998 103. The relevant provisions of the former Judiciary Act ( Lög um dómstóla ), as amended by Act no. 45/2010, read as follows: Section 4a “The Minister shall appoint an Evaluation Committee of five members to examine the qualifications of candidates for the office of Supreme Court judge or District Court judge. Two members shall be nominated by the Supreme Court, of whom one shall serve as chair; at least one of the two shall not be in active service as a judge. The third member shall be appointed by the Judicial Council and the fourth by the Icelandic Bar Association. The fifth member shall be elected by Althingi. ... The Evaluation Committee shall provide the Minister with a written and reasoned report concerning candidates for the office of Supreme Court judge. The report of the Evaluation Committee shall state the board’s view as to which candidate is best qualified for the post; the board may rank two or more candidates equally. In other respects, the Minister shall establish further rules on the functions of the board. No candidate may be appointed to the office of judge whom the Evaluation Committee has not designated as the most qualified of the candidates, whether alone or equally ranked with others. However, derogation from this condition is permitted if Althingi adopts a motion of the Minister to appoint another named candidate who, in the opinion of the Evaluation Committee, meets all the requirements laid down in the second and third paragraphs of section 4. The Minister shall in such circumstances place the motion before Althingi within two weeks from the time of submission of the Evaluation Committee’s opinion or within two weeks from the time when Althingi is next convened following submission of the opinion; the motion must be approved within one month from the time when it is placed before Althingi, otherwise the Minister will be bound by the opinion of the Evaluation Committee.” Section 12 “3. The provisions of section 4a shall apply, mutatis mutandis, to appointments to District Court judge posts.” 104. As already noted in paragraph 14 above, the preparatory material in respect of Act no. 45/2010 indicates that the amendments to the judicial appointment system in Iceland had aimed to further ensure the independence of the judiciary, having regard to the significant role played by the judiciary in securing fair trial rights and maintaining the checks and balances inherent in the separation of powers. The preparatory material also provides the following information on the assessment of the work experience of candidates for judicial posts, in so far as relevant: “... When evaluating the competencies of candidates, several factors have to be taken into account, including experience of legal work, be it judicial work, litigation, other legal practice, academic work or work in the administration, but in general a candidate should possess a broad, general legal education and expertise. Other work undertaken by the candidates on the side should also be taken into account, such as membership of administrative committees or other related experience which will come into good use for a candidate. In general, it should be considered an asset for a candidate to have varied work experience, although that has to be assessed in each case. The committee should also look to and specifically seek out testimonials of a candidate’s work and whether he or she is efficient and hard-working, whether he or she has the ability to identify key issues and to present his or her opinion in an understandable way, both in writing and verbally. In this regard, it is possible to look to academic writing, a candidate’s experience with litigation or any judgments which a candidate may have written ...” (c) Judiciary Act no. 50/2016 105. The relevant provisions of the new Judiciary Act ( Lög um dómstóla ) read as follows: Section 11 Evaluation Committee on the Qualifications of Candidates for Posts as Judges “The Minister shall appoint five principal members and as many reserve members to an evaluation committee to examine the qualifications of applicants for the office of Supreme Court judge, Court of Appeal judge or District Court judge. One member shall be nominated by the Supreme Court and shall serve as chair of the committee. One member shall be nominated by the Court of Appeal. The third member, who shall not be a serving judge, shall be nominated by the Judicial Administration and the fourth member shall be nominated by the Icelandic Bar Association. The fifth member shall be elected by Althingi. Each nominating party shall nominate a man and a woman, both as member and as reserve member, but this may be deviated from if objective reasons prevent the nomination of both a man and a woman. The nominating party shall then substantiate such impossibility. The Minister shall, when appointing members to the committee, ensure compliance with the Equality Act’s provisions on appointment to councils and committees. The term of appointment to the evaluation committee is five years, with the proviso that the term of one member shall expire each year. The same member cannot be appointed as a principal member of the board for more than two consecutive terms. The evaluation committee shall be based on the premises of the Judicial Administration.” Section 12 The Evaluation Committee’s Opinion and the Appointment of Judges “The evaluation committee shall provide the Minister with a written and reasoned opinion concerning applicants for the office of judge. The opinion of the evaluation committee shall state the board’s position regarding which applicant is best qualified for the post; the board may rank two or more applicants equally. In other respects, the Minister shall establish further rules on the functions of the committee. No applicant may be appointed to the office of judge which the evaluation committee has not designated as the most qualified of the applicants, whether alone or equally ranked with others. However, derogation from this condition is permitted if Althingi accepts a proposal by the Minister to appoint another identified applicant, provided that, in the opinion of the evaluation committee, they meet all the requirements for appointment to the post. The Minister shall in such circumstances put the motion before Althingi within two weeks from the time of submission of the evaluation committee’s opinion or within two weeks from the time when Althingi is next convened following submission of the opinion; the motion must be approved within one month from the time when it is put before Althingi, otherwise the Minister will be bound by the opinion of the evaluation committee.” Section 21 General Qualification Requirements “The Court of Appeal shall be composed of 15 judges, appointed for an indefinite period of time by the President of Iceland as proposed by the Minister. Only a person who fulfils the following conditions may be appointed to the office of Court of Appeal judge; he or she must: 1. have attained the age of 35 years; 2. be an Icelandic national; 3. have the necessary mental and physical capacity; 4. be legally competent to manage his or her personal and financial affairs, and never have been deprived of the control of his or her finances. 5. have not committed any criminal act considered to be dishonourable in public opinion, or evinced any conduct detrimental to the trust that persons holding judicial office generally must enjoy; 6. have completed the can.jur. examination or B.A. examination in law together with a master’s degree; 7. have for a term of no less than three years been a district court judge, attorney before the Supreme Court, full professor or associate professor of law, commissioner of police, district commissioner, public prosecutor, permanent secretary of a ministry, director general of a department of the Minister or Althingi ’s Ombudsman, or have for such period discharged a similar function providing similar legal experience; 8. be deemed capable of holding the office in the light of his or her career and knowledge of law. A person who is, or has been, married to an Appeal Court judge already in office, or a person related to such judge by blood or marriage by ascent or descent, or to the level of second cousin, may not be appointed to the Court of Appeal.” Section 43 Independence of Judges “Judges are independent in their judicial work and shall perform such work under their own responsibility. In their resolution of a case they shall be guided solely by the law and never act under instructions from others. A judicial act will not be reviewed by others except through an appeal to a higher court. ...” Section IV (temporary provision) “Nomination of judges of the Court of Appeal shall be completed no later than 1 July 2017 and the judges shall be appointed to office with effect from 1 January 2018. As provided for in section 4a of Act no. 15/1998 on the Judiciary, a committee shall be established to investigate for the first time the qualifications of candidates for the office of judge of the Court of Appeal. The committee shall provide the Minister with its opinion about the candidates in conformity with the second subsection of the same section and of the regulation that applies to the committee. The Minister is not authorised to appoint an individual to the office of judge whom the Evaluation Committee has not deemed to be the most qualified amongst the candidates, either separately or among others. This provision may be departed from, however, if Althingi accepts a proposal by the Minister on an authorisation to appoint to the office of judge another named candidate who, in the opinion of the Evaluation Committee, meets all the conditions of the second and third paragraphs of section 21 hereof. When the Minister proposes appointments to the office of judge of the Court of Appeal for the first time, he/she shall submit her proposal regarding every appointment to Althingi for approval. If Althingi accepts the Minister’s proposals, he/she shall send them to the President of Iceland, who formally appoints the judges (see section 21). If Althingi does not accept the Minister’s proposal regarding a particular appointment, the Minister shall present a new proposal to Althingi for approval. ...” 106. The preparatory material regarding temporary provision IV provides the following, as relevant: “...Secondly, it is proposed that before the Minister appoints judges to the Court of Appeal for the first time, he/she should make a proposal regarding each appointment to Parliament for approval. In the light of the fact that 15 judges will be appointed simultaneously, it is natural to ensure the participation of more than one of the public powers in that process.” Minister of Justice’s Rules no. 620/2010 on the work of the Evaluation Committee 107. The relevant provisions of the Minister of Justice’s Rules no. 620/2010 on the work of the Evaluation Committee, which assesses the competencies of applicants for judicial posts ( Reglur um störf dómnefndar sem fjallar um hæfni umsækjenda um dómaraembætti ), read as follows: Section 3 “When the application deadline has expired the Minister examines whether the candidates fulfil all the general conditions of qualification for the judicial office which was published in accordance with the Judiciary Act no. 15/1998. Then the applications fulfilling the conditions are sent to the Evaluation Committee for assessment.” Section 4 “In its opinion the Committee shall decide who is/are the most qualified candidate/s to be appointed to the judicial office. The Committee shall make sure that in its evaluation equality is respected. The conclusion shall stem from an overall assessment based on objective considerations and on the candidates’ merits, taking account of the candidates’ education, experience, integrity, competence and professional efficiency, as described, inter alia, in more detail below: 1. Education, career, theoretical knowledge. When evaluating the candidate’s education, career and theoretical knowledge, the Committee shall lay emphasis on the fact of the candidate having a varied background in the fields of law such as experience as a judge, litigation or other type of legal practice work, work in administration or academic work. The candidate should have general and comprehensive legal knowledge and education. It should also be considered whether the candidate has undergone further education. 2. Secondary activities and social activities. The Committee shall also take into account the candidate’s secondary activities, such as activities in appeals committees or other activities which could be useful for a judge. The Committee can also take into account extensive participation in social activities. 3. General competence. The Committee shall take into account whether the candidate has shown independence, impartiality, initiative and efficiency in his or her work and whether the candidate can easily extrapolate upon the key issues. It is optimal for the candidate to have management experience. The candidate shall have good knowledge of the Icelandic language and ability to communicate easily both verbally and in writing. 4. Special competence. It is important for the candidate to have good knowledge of civil and criminal procedures and to follow the provisions of law when drafting judgments, which also requires good use of language. The candidate has to be able to conduct hearings firmly and fairly and process the cases he/she is assigned quickly and with confidence. 5. Mental capabilities. The candidate has to be able to communicate easily, both with colleagues and other people he/she encounters at work. The candidate must have a good reputation both from his or her previous work and from outside work and must be dependable.” Section 5 “The candidate’s application for the judicial office advertised, along with the rules that apply to it, shall be the basis upon which the Committee makes its evaluation. The Committee shall make sure that the matter is in all other aspects sufficiently investigated before giving its opinion on a candidate’s qualifications. In its evaluation, in accordance with section 4, the Committee can take into account all published works of the candidates, such as scholarly writing, judgments, decisions and the like, even where they have not been submitted with the application. The candidate does not need to be specifically notified in advance. The Committee can invite the candidates for an interview and request necessary documents in addition to those submitted with their application and the Committee can base its evaluation, under section 4, on the documents. The Committee can obtain knowledge of the candidate’s career from his/her former employer or others who have been in professional contact with him/her. The candidate shall have seven days to comment on the information that is collected.” Section 6 “The Committee shall submit a written and reasoned report on the candidates including the following: (a) reasoned opinion on each candidate’s qualification; (b) reasoned opinion as to which candidate/s the Committee considers the most qualified for the judicial office.” Section 7 “The Committee shall share its draft assessment report with the candidates and give them seven days to comment thereon. The candidates are bound by confidentiality as to the content of the draft report.” Section 8 “After the Committee has reviewed the candidates’ comments and amended the report, as appropriate, it finalises the report, signs it and sends it to the Minister along with the case documents. Furthermore, the Committee sends its report to the candidates. Three days after the Minister and the candidates have been sent a copy of the report it shall be published on the Ministry of Justice’s website.” Section 9 “The Committee shall submit a report on the candidates within six weeks after receiving the applications. This deadline can be extended under special circumstances such as in the event of a high number of candidates, etc. ...” Administrative Procedures Act 108. The relevant provision of the Administrative Procedures Act no. 37/1993 ( Stjórnsýslulög ) reads as follows: Section 10 Rule of investigation “An authority shall ensure that a case is sufficiently investigated before a decision thereon is reached.” Parliamentary Procedures Act 109. The relevant provisions of the Parliamentary Procedures Act no. 55/1991 ( Lög um þingsköp Alþingis ) read as follows: Section 45 “Motions for parliamentary resolutions shall take the form of resolutions. They shall be printed and distributed to Members at a sitting of Althingi. As a rule, motions for resolutions shall be accompanied by an explanation of their substance. Deliberations may not take place until at least two nights after the distribution of the motion. A resolution cannot pass until it has received two readings. However, motions of no confidence in the Government or a minister, motions on the appointment of committees under Article 39 of the Constitution and motions from committees submitted pursuant to section 26(2) shall be debated and brought to a conclusion in a single debate in accordance with the rules on second readings of parliamentary resolutions. The same applies to motions for adjournment of sittings of Althingi pursuant to the second sentence of Article 23 (1) of the Constitution. At the end of the first reading the motion will pass to the second reading and the committee proposed by the Speaker. However, a vote shall be taken at the request of any Member, and also if another motion is made regarding the committee to which the matter should be submitted. The second reading shall not take place until one night after the first reading or distribution of a committee report. At this reading, individual Articles of the proposal shall be debated along with amendments to such Articles. At the close of this reading a vote shall be taken on each Article of the proposal and any amendments thereto, and finally on the proposal in its entirety. However, if there are no motions to amend, the proposal may be put to the vote in its entirety. If Althingi receives a submission relating to a matter on which Althingi is required to take a position under the Constitution or by law, but the submission does not constitute parliamentary business pursuant to Chapter III, the Speaker shall report the submission at a sitting. The matter is then submitted without debate to a committee on the recommendation of the Speaker. When the committee has completed its examination of the matter, the committee shall express its opinion in a report, which shall be distributed at a sitting, together with a motion for a resolution, which shall be debated and brought to a conclusion in a single sitting pursuant to the rules on second readings of parliamentary resolutions. Parliamentary resolutions which are distributed after the end of November may not be placed on the agenda before the Christmas recess except with the consent of Althingi, obtained in compliance with section 74. Furthermore, parliamentary resolutions which are distributed later than 1 April may not be placed on the agenda before the summer recess except with the consent of Althingi, obtained in compliance with section 27. However, this consent can only be sought when five days have passed from the distribution of the resolution; derogation from this requirement is permitted with the support of three fifths of the Members voting on the resolution. Constitutional requirements pursuant to Article 103 of the Agreement on the European Economic Area shall be derogated from by a parliamentary resolution, whose presentation shall comply with rules established by the Speaker. The Prime Minister shall in October of each year submit to Althingi a report on the implementation of resolutions passed by Althingi in the preceding year and requiring action by a Minister or the government, unless a different form of reporting to Althingi is provided for by law. The report shall furthermore address the process of matters referred by Althingi to the Government or a Minister. When the report has been submitted, it shall be referred to the Constitutional and Supervisory Committee for discussion. The committee may submit to Althingi its opinion regarding the Minister’s report at its discretion and submit proposals to Althingi regarding individual matters in the report.” Criminal Procedure Act 110. The relevant provisions of the Criminal Procedure Act no. 88/2008 ( Lög um meðferð sakamála ) read as follows: Section 6 “A judge, including a lay judge, shall be disqualified from sitting as judge in a case where: (a) he is an accused, a victim or a representative thereof; (b) he has represented the interests of an accused or the victim in the case; (c) he has testified or been called as a witness in the case for legitimate reasons or has served as an assessor or examiner in the case [with regard to the charges in question]; (d) he is or has been the spouse of the accused or the victim, is related to them by blood or marriage in a direct line or to the level of second cousin, or related to them to the same degree by adoption; (e) he is related or has been connected to the representative of the accused or the victim, or counsel, in the manner stipulated in point (d); (f) he is connected or has been connected to a witness in the case, or to an assessor or examiner, in the manner stipulated in point (d); or (g) there are other circumstances or conditions that may justifiably raise questions about his impartiality.” 111. According to the Criminal Procedure Act, judicial proceedings can be reopened under certain conditions. Section 228 of the Act states that when a District Court judgment has not been appealed against or the time limit for appeal has passed, the Committee on Reopening of Judicial Proceedings ( Endurupptökunefnd ) can approve a request of a person, who considers that he or she has been wrongly convicted or convicted of a more serious offence than he or she committed, to reopen the judicial proceedings before the District Court, if certain conditions are fulfilled. The conditions are, inter alia, that new evidence has come to light which could have had great significance for the outcome of the case if it had been available before the judgment was announced (point (a)), or that there were serious defects in the processing of the case which affected its outcome (point (d)). The State Prosecutor can also request reopening for the benefit of the convicted person if he considers that the conditions in section 228(1) of the Act are fulfilled. In accordance with section 229 of the Act, the request for reopening shall be made in writing and sent to the Committee on Reopening of Judicial Proceedings. It shall include detailed reasoning as to how the conditions for reopening are considered to be fulfilled. Pursuant to section 231 of the Act, the Committee on Reopening of Judicial Proceedings decides whether proceedings will be reopened. If a request for reopening is approved the first judgment remains in force until a new judgment is delivered in the case. Section 232 of the Act states that the Committee on Reopening of Judicial Proceedings can accept a request for the reopening of a case which has been finally decided in the Court of Appeal or the Supreme Court and a new judgment will be delivered if the conditions of section 228 are fulfilled. A case will not be reopened in the Court of Appeal unless the time-limit to request leave to appeal to the Supreme Court has expired or the Supreme Court has rejected leave to appeal. 112. In a recent judgment it delivered on 21 May 2019, the Supreme Court held that neither section 228(1) (d) of the Criminal Procedure Act, nor any other laws, created an automatic right to reopening to persons whose criminal convictions had resulted in findings of a violation by the European Court of Human Rights and that each case would have to be assessed on its facts. The defendants in the relevant case had been convicted of tax offences, which the Court had found to be in violation of Article 4 of Protocol No. 7 to the Convention (see Jóhannesson and Others v. Iceland, no. 22007/11, 18 May 2017). Noting that the defendants had been heard by an independent and impartial tribunal and that their case was incomparable to those where fundamental fair trial principles had been breached, the Supreme Court found that their request did not fulfil the requirements for reopening under Section 228(1) (d) of the Criminal Procedure Act. Tort Act 113. Section 26(1) of the Tort Act no. 50/1993 ( Skaðabótalög ) reads: “A person who (a) deliberately or through gross negligence causes physical injury or (b) is responsible for unlawful injury against the freedom, peace, honour or person of another party, may be ordered to pay an amount in respect of non-pecuniary damage to the injured party.” Domestic practice 114. It is an unwritten general principle of Icelandic administrative law that, in the appointment of persons to public posts, the appointing party is under a duty to appoint the most qualified candidate. It is furthermore considered that such appointments must be based on objective considerations. This principle has been confirmed by the Supreme Court in many of its judgments, including the judgments dated 5 November 1998 and 14 April 2011 (see paragraph 69 above), and the judgments of 19 December 2017 concerning the candidates J.R.J. and Á.H. (see paragraphs 67-75 above). 115. As mentioned briefly in paragraph 13 above, the Supreme Court judgment of 14 April 2011 (no. 412/2010) concerned a dispute over the appointment of a District Court judge, where the Supreme Court had found the then ad hoc Minister of Justice and the Icelandic State liable for damages in relation to the appointment at issue. The appointment having been made prior to the introduction of Act no. 45/2010, at which time the Evaluation Committee’s recommendations on judicial appointments were not yet binding on the Minister of Justice, the latter had disregarded the recommendation of the Evaluation Committee and had proposed a candidate who had only been considered “qualified”, instead of one of the three who had been considered “very well qualified”. When one of the three candidates who were not appointed brought proceedings to claim damages for injury to his reputation and personal honour, the Supreme Court upheld that candidate’s claims on the basis of the following principles: “Under section 10 of the Administrative Procedures Act no. 37/1993, an authority making an appointment to a position or office of the State is required to ensure that issues of significance are sufficiently elucidated before a decision is made on the appointment. The previously applicable third and fourth paragraphs of section 12 of Act no. 15/1998 relieved the Minister of Justice ... to a significant extent of this duty of investigation when making appointments to positions of District Court judge, instead placing it in the hands of the Evaluation Committee, which was appointed with a view to ensuring that specialised expertise would be available there to assess the qualifications of applicants for a position as District Court judge ... Although the Evaluation Committee’s opinion was not binding on the Minister, ..., it must be kept particularly in mind that its investigation replaced by law an investigation which the Minister would otherwise have been obliged to carry out. As a result, if the Minister considered there to be a reason to deviate from the opinion of the Evaluation Committee when appointing a District Court judge, then his/her decision would have to be based on further investigation under section 10 of the Administrative Procedures Act, taking into account among other things his own instructions in Rules no. 693/1999 on matters relating to the assessment of the applicants’ qualifications, while at the same time ensuring that comparable expert knowledge was exercised as in the case of the Evaluation Committee’s work. In this regard, it needed also to be taken into consideration that when making an appointment to the office of judge, the Minister was not deciding on a post under the Minister’s own authority, but an office pertaining to another branch of government and subject to special rules on independence, as provided in the first sentence of Article 61 of the Constitution and section 24 of Act no. 15/1998.” 116. In his annual report for 2016, the Icelandic Parliamentary Ombudsman made the following remarks on the evaluation procedures followed by the authorities in appointments to public posts, as pertinent: 3.1.2 Matters concerning public servants “... According to an unwritten principle of administrative law, it is a general obligation to recruit the most competent candidate for a public post. Thus, an evaluation of candidates must be carried out on the basis of their professional competencies in the light of the legitimate criteria applicable, consideration being given to the law and to the nature of the post. The principle also entails that, in general, it is impermissible to take into account unrelated criteria such as political views or amity/animosity. In cases where public servants are to be recruited or appointed, authorities – or the recruitment companies they employ – increasingly appear to use a method whereby the criteria through which candidates are to be evaluated are enumerated and each criterion given a certain weight. Candidates are then awarded points for each criterion and their total score is calculated. The candidate who achieves the highest score is generally considered the most competent by the appointing authority. Deciding on the applicable criteria and their weight before evaluating candidates is in general in compliance with the appointing authority’s task to evaluate candidates based on their professional competencies. However, I have noticed in recent years that the above-described method is employed too strictly and absolutely, without properly assessing substantively the candidates’ knowledge and experience. Thus, the candidates’ experience is assessed only in terms of years, how many courses they have finished or how many academic articles they have published, without that experience apparently being substantively assessed, including as to how well the candidate has performed and how the experience will assist the candidate in the performance of the post in question. In other instances, the criteria have been divided into categories, i.e. different categories of professional experience, where each category can only give a certain maximum number of points. The result is often that the candidate who has done the highest number of jobs, and thus obtains points from the most categories, achieves a higher score than a candidate who has mastered a certain professional experience, without any substantive assessment as to whether the long experience of the latter candidate constitutes better preparation for the post than the varied experience of the former. While noting that it is not, in general, illegitimate to look for varied professional experience when recruiting candidates for a post, the above-described methods often seem automatically to lead to a lack of substantive comparison of the qualities of candidates and thus of their competencies. This results in genuine uncertainty about whether the most qualified candidate for a post obtained the highest score and thus is eliminated from consideration [ sic ]. In this regard, I emphasise that the evaluation procedures followed by the authorities should enable them to meaningfully and substantively evaluate candidates, in order to recruit the most qualified candidate for each post. In general, I believe that in the light of the evaluative nature of the choice of candidate for a public post and the criteria on which such a choice can be based, care should be taken when making that choice on the basis of points, as described above.” INTERNATIONAL MATERIALUnited Nations United Nations United Nations 117. The United Nations (UN) Basic Principles on the Independence of the Judiciary, adopted by the Seventh UN Congress on the Prevention of Crime and the Treatment of Offenders held at Milan from 26 August to 6 September 1985 and endorsed by General Assembly resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985, provide in their relevant part as follows: Qualifications, selection and training “10. Persons selected for judicial office shall be individuals of integrity and ability with appropriate training or qualifications in law. Any method of judicial selection shall safeguard against judicial appointments for improper motives.” 118. In its General Comment no. 32 on Article 14 of the International Covenant on Civil and Political Rights (ICCPR) – which was ratified by Iceland on 22 August 1979 – concerning the right to equality before courts and tribunals and to a fair trial (CCPR/C/GC/32 published on 23 August 2007), the UN Human Rights Committee stated as follows: “4. Article 14 contains guarantees that States parties must respect, regardless of their legal traditions and their domestic law. While they should report on how these guarantees are interpreted in relation to their respective legal systems, the Committee notes that it cannot be left to the sole discretion of domestic law to determine the essential content of Covenant guarantees. ... 19. The requirement of competence, independence and impartiality of a tribunal in the sense of article 14, paragraph 1, is an absolute right that is not subject to any exception. The requirement of independence refers, in particular, to the procedure and qualifications for the appointment of judges, and guarantees relating to their security of tenure until a mandatory retirement age or the expiry of their term of office, where such exist, the conditions governing promotion, transfer, suspension and cessation of their functions, and the actual independence of the judiciary from political interference by the executive branch and legislature. States should take specific measures guaranteeing the independence of the judiciary, protecting judges from any form of political influence in their decision-making through the constitution or adoption of laws establishing clear procedures and objective criteria for the appointment, remuneration, tenure, promotion, suspension and dismissal of the members of the judiciary and disciplinary sanctions taken against them. A situation where the functions and competencies of the judiciary and the executive are not clearly distinguishable or where the latter is able to control or direct the former is incompatible with the notion of an independent tribunal. It is necessary to protect judges against conflicts of interest and intimidation. In order to safeguard their independence, the status of judges, including their term of office, their independence, security, adequate remuneration, conditions of service, pensions and the age of retirement shall be adequately secured by law. 20. Judges may be dismissed only on serious grounds of misconduct or incompetence, in accordance with fair procedures ensuring objectivity and impartiality set out in the constitution or the law. The dismissal of judges by the executive, e.g. before the expiry of the term for which they have been appointed, without any specific reasons given to them and without effective judicial protection being available to contest the dismissal is incompatible with the independence of the judiciary. The same is true, for instance, for the dismissal by the executive of judges alleged to be corrupt, without following any of the procedures provided for by the law.” 119. The relevant parts of the thematic report by the UN Special Rapporteur on the Independence of Judges and Lawyers, Mr Leandro Despouy, on “Guarantees of judicial independence / Major developments in international justice” (UN Human Rights Council, document A/HRC/11/41 of 24 March 2009), read as follows: III. GUARANTEES OF JUDICIAL INDEPENDENCE A. Institutional independence: elements having an impact on the independence of the judiciary “17. In this chapter, the Special Rapporteur will analyse features having an impact on the independence of the judiciary as an institution. ... 3. Selection and appointment 23. The Basic Principles on the Independence of the Judiciary prescribe that judges be selected on the basis of integrity and ability and that any method of judicial selection should include safeguards against judicial appointments for improper motives [footnote: Principle 10]. This key principle is also established by a number of regional standards [Recommendation No. R (94) 12 of the Committee of Ministers of the Council of Europe, principle I (2) (c); Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, A (4) (h); Beijing Statement of Principles of the Independence of the Judiciary in the LAWASIA region, principles 11, 12 and 15]. Furthermore, the Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa highlight the importance of transparency and accountability in the selection and appointment procedures [footnote: Principles and Guidelines in Africa, A (4) (h)]. 24. The Special Rapporteur takes note of the variety of existing systems for the selection and appointment of judges worldwide. One can broadly distinguish political appointments (selection by the legislative or executive branches of power), appointments by popular elections, corporative appointments (by bodies composed of judges only), selection by judicial councils with plural representation, or a variety of mixed systems where the nominating body is of one type (e.g. judicial council) and the one in charge of appointments is of a different nature (e.g. a political appointing body) ... ... 30. In addition to the composition of the selecting body, it is also important to determine the extent of powers given to this organ, as this element has a great impact on the degree of independence of judges, not only from political power, but also from the selecting body itself ... In order to secure the independence of judges and the selection of the most suitable candidates, the Special Rapporteur highlights the importance of the establishment and application of objective criteria in the selection of judges. The principle of objective criteria was also highlighted by the Human Rights Committee and by the Committee against Torture. These objective criteria should relate particularly to qualifications, integrity, ability and efficiency. The Special Rapporteur emphasizes that selection of judges must be based on merit alone, a key principle also enshrined in Recommendation No. R (94) 1228 and the Statute of the Ibero-American Judge ... ... 33. Where an organ of the executive or legislative branch is the one formally appointing judges [footnote omitted] following their selection by an independent body, recommendations from such a body should only be rejected in exceptional cases and on the basis of well-established criteria that have been made public in advance. For such cases, there should be a specific procedure by which the executive body is required to substantiate in a written manner for which reasons it has not followed the recommendation of the above-mentioned independent body for the appointment of a proposed candidate. Furthermore, such written substantiation should be made accessible to the public. Such a procedure would help enhance transparency and accountability of selection and appointment.” 120. In accordance with its obligation under Article 40 of the ICCPR, the Government of Iceland submitted its fifth periodic report on the implementation of the ICCPR to the UN Human Rights Committee on 27 April 2010 (UN Doc. CCPR/C/ISL/5). The relevant parts of the report, concerning the procedure for the appointment of judges, read as follows: “130. In the recent years there has been growing concern that the rules relating to the selection and appointment of judges, both in the district courts and the Supreme Court, do not sufficiently guarantee the independence of the judiciary. This debate has centred on the role of the ministers, who have sole responsibility for appointing judges, and have on occasions disregard[ed] the recommendations of a special evaluation committee concerning the appointment of district court judges and the opinion of the Supreme Court concerning the appointment of Supreme Court Judges. A response has now been made to this criticism, and the Minister of Justice has submitted a bill to the Althingi on amendments to the Judiciary Act, No. 15/1998. Under the amendments proposed, the aim is that the Minister of Justice would appoint a five-man selection committee to examine the qualifications and competence of applicants for the position of both Supreme Court and district court judges ... This selection committee would submit to the Minister of Justice written and reasoned comments on applicants for positions as Supreme Court judges. In its comments, the committee would adopt a position as to which applicant was the best qualified to be appointed to the position, but would be able to name two or more as being equally well qualified. 131. The most significant element in these proposals is that the minister would not be able to appoint as a judge a person that the evaluation committee did not consider to be the best qualified, either absolutely or tying with one or more others, among the applicants. Exemptions could be made from this rule, however, if the Althingi approved an application by the Minister of Justice for permission to appoint to the position another applicant, whose name was specified, who in the opinion of the selection committee met all the [relevant] conditions ...” Council of EuropeCommittee of Ministers Committee of Ministers Committee of Ministers 121. The Recommendation adopted by the Committee of Ministers on 17 November 2010 (CM/Rec(2010)12) on “Judges: independence, efficiency and responsibilities” provides in its relevant parts as follows: Chapter I – General aspects Judicial independence and the level at which it should be safeguarded “3. The purpose of independence, as laid down in Article 6 of the Convention, is to guarantee every person the fundamental right to have their case decided in a fair trial, on legal grounds only and without any improper influence. 4. The independence of individual judges is safeguarded by the independence of the judiciary as a whole. As such, it is a fundamental aspect of the rule of law.” Chapter II − External independence “11. The external independence of judges is not a prerogative or privilege granted in judges’ own interest but in the interest of the rule of law and of persons seeking and expecting impartial justice. The independence of judges should be regarded as a guarantee of freedom, respect for human rights and impartial application of the law.” Chapter VI - Status of the judge Selection and career “44. Decisions concerning the selection and career of judges should be based on objective criteria pre ‑ established by law or by the competent authorities. Such decisions should be based on merit, having regard to the qualifications, skills and capacity required to adjudicate cases by applying the law while respecting human dignity. ... 46. The authority taking decisions on the selection and career of judges should be independent of the executive and legislative powers. With a view to guaranteeing its independence, at least half of the members of the authority should be judges chosen by their peers. 47. However, where the constitutional or other legal provisions prescribe that the head of state, the government or the legislative power take decisions concerning the selection and career of judges, an independent and competent authority drawn in substantial part from the judiciary (without prejudice to the rules applicable to councils for the judiciary contained in Chapter IV) should be authorised to make recommendations or express opinions which the relevant appointing authority follows in practice. 48. The membership of the independent authorities referred to in paragraphs 46 and 47 should ensure the widest possible representation. Their procedures should be transparent with reasons for decisions being made available to applicants on request. An unsuccessful candidate should have the right to challenge the decision, or at least the procedure under which the decision was made.” The Explanatory Memorandum to this recommendation further provides as follows: “13. The separation of powers is a fundamental guarantee of the independence of the judiciary whatever the legal traditions of the member states.” Venice Commission 122. In its Report on Judicial Appointments (CDL-AD(2007)028), adopted at its 70th Plenary Session (16-17 March 2007), the European Commission for Democracy Through Law (Venice Commission) held as follows (footnotes omitted): “3. International standards in this respect are more in favour of the extensive depolitisation of the [judicial appointment] process. However no single non-political “model” of appointment system exists, which could ideally comply with the principle of the separation of powers and secure full independence of the judiciary. ... 5. In some older democracies, systems exist in which the executive power has a strong influence on judicial appointments. Such systems may work well in practice and allow for an independent judiciary because the executive is restrained by legal culture and traditions, which have grown over a long time. 6. New democracies, however, did not yet have a chance to develop these traditions, which can prevent abuse. Therefore, at least in new democracies explicit constitutional provisions are needed as a safeguard to prevent political abuse by other state powers in the appointment of judges. 7. In Europe, methods of appointment vary greatly according to different countries and their legal systems; furthermore they can differ within the same legal system according to the type of judges to be appointed.” 123. The relevant extracts from the Rule of Law Checklist (CDL ‑ AD(2016)007), adopted by the Venice Commission at its 106th Plenary Session (11-12 March 2016) [8], read as follows: “45. A basic requirement of the Rule of Law is that the powers of the public authorities are defined by law. In so far as legality addresses the actions of public officials, it also requires that they have authorisation to act and that they subsequently act within the limits of the powers that have been conferred upon them, and consequently respect both procedural and substantive law [footnote omitted]. ... 53. Although full enforcement of the law is rarely possible, a fundamental requirement of the Rule of Law is that the law must be respected. This means in particular that State bodies must effectively implement laws. The very essence of the Rule of Law would be called in question if law appeared only in the books but were not duly applied and enforced [footnote omitted]. The duty to implement the law is threefold, since it implies obedience to the law by individuals, the duty reasonably to enforce the law by the State and the duty of public officials to act within the limits of their conferred powers. ... 66. Abuse of discretionary power should be controlled by judicial or other independent review. Available remedies should be clear and easily accessible. ... 68. The obligation to give reasons should also apply to administrative decisions [footnote omitted]. ... 74. The judiciary should be independent. Independence means that the judiciary is free from external pressure, and is not subject to political influence or manipulation, in particular by the executive branch. This requirement is an integral part of the fundamental democratic principle of the separation of powers. Judges should not be subject to political influence or manipulation. ... 79. It is important that the appointment and promotion of judges is not based upon political or personal considerations, and the system should be constantly monitored to ensure that this is so.” Consultative Council of European Judges 124. In its Opinion no. 1 (2001) on “standards concerning the independence of the judiciary and the irremovability of judges” the Consultative Council of European Judges (CCJE) made the following observations, the relevant parts of which read as follows (footnotes omitted): The rationales of judicial independence “10. Judicial independence is a pre-requisite to the rule of law and a fundamental guarantee of a fair trial ... Their [judges’] independence is not a prerogative or privilege in their own interests, but in the interests of the rule of law and of those seeking and expecting justice. 11. This independence must exist in relation to society generally and in relation to the particular parties to any dispute on which judges have to adjudicate. The judiciary is one of three basic and equal pillars in the modern democratic state. It has an important role and functions in relation to the other two pillars. It ensures that governments and the administration can be held to account for their actions, and, with regard to the legislature, it is involved in ensuring that duly enacted laws are enforced, and, to a greater or lesser extent, in ensuring that they comply with any relevant constitution or higher law ... To fulfil its role in these respects, the judiciary must be independent of these bodies, which involves freedom from inappropriate connections with and influence by these bodies. Independence thus serves as the guarantee of impartiality. This has implications, necessarily, for almost every aspect of a judge’s career: from training to appointment and promotion and to disciplining. 12. ... judicial independence is an elaboration of the fundamental principle that ‘no man may be judge in his own cause’. This principle also has significance well beyond that affecting the particular parties to any dispute. Not merely the parties to any particular dispute, but society as a whole must be able to trust the judiciary. A judge must thus not merely be free in fact from any inappropriate connection, bias or influence, he or she must also appear to a reasonable observer be free therefrom. Otherwise, confidence in the independence of the judiciary may be undermined. 13. The rationale of judicial independence, as stated above, provides a key by which to assess its practical implications – that is, the features which are necessary to secure it, and the mean by which it may be secured, at a constitutional or lower legal level, as well as in day-to-day practice, in individual states.” Basis of appointment or promotion “17. ... There is, therefore, general acceptance both that appointments should be made ‘on the merits’ based on ‘objective criteria’ and that political considerations should be inadmissible. ... 25. Any ‘objective criteria’, seeking to ensure that the selection and career of judges are ‘based on merit, having regard to qualifications, integrity, ability and efficiency’, are bound to be in general terms. Nonetheless, it is their actual content and effect in any particular state that is ultimately critical. The CCJE recommended that the authorities responsible in member States for making and advising on appointments and promotions should now introduce, publish and give effect to objective criteria, with the aim of ensuring that the selection and career of judges are ‘based on merit, having regard to qualifications, integrity, ability and efficiency’. Once this is done, those bodies or authorities responsible for any appointment or promotion will be obliged to act accordingly, and it will then at least be possible to scrutinize the content of the criteria adopted and their practical effect. ... 45. Even in legal systems where good standards have been observed by force of tradition and informal self-discipline, customarily under the scrutiny of a free media, there has been increasing recognition in recent years of a need for more objective and formal safeguards [regarding appointments and promotions of judges]. In other states, ..., the need is pressing ...” Tenure – irremovability and discipline “57. It is a fundamental tenet of judicial independence that tenure is guaranteed until a mandatory retirement age or the expiry of a fixed term of office: ...” 125. The Magna Carta of Judges (Fundamental Principles) was adopted by the CCJE in November 2010. The relevant paragraphs read as follows: “ Rule of law and justice 1. The judiciary is one of the three powers of any democratic state. Its mission is to guarantee the very existence of the Rule of Law and, thus, to ensure the proper application of the law in an impartial, just, fair and efficient manner. Judicial Independence 2. Judicial independence and impartiality are essential prerequisites for the operation of justice. 3. Judicial independence shall be statutory, functional and financial. It shall be guaranteed with regard to the other powers of the State, to those seeking justice, other judges and society in general, by means of national rules at the highest level. The State and each judge are responsible for promoting and protecting judicial independence. 4. Judicial independence shall be guaranteed in respect of judicial activities and in particular in respect of recruitment, Guarantees of independence 5. Decisions on selection, nomination and career shall be based on objective criteria and taken by the body in charge of guaranteeing independence. ... 8. Initial and in-service training is a right and a duty for judges. It shall be organised under the supervision of the judiciary. Training is an important element to safeguard the independence of judges as well as the quality and efficiency of the judicial system.” 126. In another opinion on the “Position of the judiciary and its relation with the other powers of state in a modern democracy” dated 16 October 2015 (Opinion no. 18/2015), the CCJE made findings, the relevant parts of which read as follows (footnotes omitted): III. Independence of the judiciary and separation of the powers “10. The judiciary must be independent to fulfil its role in relation to the other powers of the state, society in general, and the parties to litigations. The independence of judges is not a prerogative or privilege granted in their own interest, but in the interest of the rule of law and of all those who seek and expect justice. Judicial independence is the means by which judges’ impartiality is ensured. It is therefore the pre ‑ condition for the guarantee that all citizens (and the other powers of the state) will have equality before the courts. Judicial independence is an intrinsic element of its duty to decide cases impartially. Only an independent judiciary can implement effectively the rights of all members of society, especially those groups that are vulnerable or unpopular. Thus, independence is the fundamental requirement that enables the judiciary to safeguard democracy and human rights.” IV. The legitimacy of judicial power and its elements ... B. Different elements of legitimacy of judicial power ... (2) Constitutional or formal legitimacy of individual judges “14. In order to perform the judicial functions legitimised by the constitution, each judge needs to be appointed and thus become part of the judiciary. Each individual judge who is appointed in accordance with the constitution and other applicable rules thereby obtains his or her constitutional authority and legitimacy. It is implicit in this appointment in accordance with constitutional and legal rules that individual judges are thereby given the authority and appropriate powers to apply the law as created by the legislature or as formulated by other judges. The legitimacy conferred on an individual judge by his appointment in accordance with the constitution and other legal rules of a particular state constitutes an individual judge’s ‘constitutional or formal legitimacy’. 15. The CCJE has noted the different methods of appointment of judges in the member states of the Council of Europe. These include, for example: appointment by a council for the judiciary or another independent body, election by parliament and appointment by the executive. As the CCJE has pointed out, each system has advantages and disadvantages. It can be argued that appointment by vote of Parliament and, to a lesser degree, by the executive can be seen to give additional democratic legitimacy, although those methods of appointment carry with them a risk of politicisation and a dependence on those other powers. To counter those risks, the CCJE has recommended that every decision relating to a judge’s appointment or career should be based on objective criteria and be either taken by an independent authority or subject to guarantees to ensure that it is not taken other than on the basis of such criteria. The CCJE has also recommended the participation of an independent authority with substantial representation chosen democratically by other judges in decisions concerning the appointment or promotion of judges ...” 127. On 7 February 2018 the CCJE published a report on “Judicial independence and impartiality in the Council of Europe member States in 2017”. The relevant parts of this report read as follows (footnotes omitted): II. Overview of relevant European standards A. Functional independence: appointment and security of tenure of judges “13. The above-mentioned European and international documents underline that candidates for judicial office should be selected according to objective criteria based on merit, and that the selection should be undertaken by an independent body. If a person or body outside the judiciary, such as the head of state, has the authority to appoint judges, the proposal of the independent body should generally be followed by the appointing authority. 14. The independence of judges requires the absence of interference by other state powers, in particular the executive power, in the judicial sphere ... 15. The ECtHR and the CCJE have recognised the importance of institutions and procedures guaranteeing the independent appointment of judges. The CCJE has recommended that every decision relating to a judge’s appointment, career and disciplinary action should be regulated by law, based on objective criteria and be either taken by an independent authority or subject to guarantees, for example judicial review, to ensure that it is not taken other than on the basis of such criteria. Political considerations should be inadmissible irrespective of whether they are made within Councils for the Judiciary, the executive, or the legislature. 16. There are different appointment procedures of judges in the member States. These include, for example: appointment by a Council for the Judiciary or another independent body, election by parliament and appointment by the executive. Formal rules and Councils for the Judiciary have been introduced in the member States to safeguard the independence of judges and prosecutors. However, as welcome as such developments may be, formal rules alone do not guarantee that appointment decisions are taken impartially, according to objective criteria, and free from political influence. The influence of the executive and legislative powers on the appointment decisions should be limited in order to prevent appointments for political reasons ...” GRECO 128. At its 59th plenary meeting held from 18 to 22 March 2013 in Strasbourg, the Council of Europe Group of States Against Corruption (GRECO) adopted its Fourth Evaluation Report on Iceland, concerning corruption prevention in respect of members of parliament, judges and prosecutors (Greco Eval IV Rep (2012)8E). The report published on 28 March 2013 made the following relevant remarks on the appointment of judges: “75. Generally speaking, the GET [GRECO evaluation team] found the judiciary in Iceland to be of a high standard. Steps have been taken to address public criticism as regards appointment and recruitment to the judiciary, an area where misgivings have been expressed in the past as to appointments to office being politically motivated rather than based on merit ... The GET wishes to highlight that judges must not only be independent, but also seen to be independent. This is of particular relevance in Iceland where opinion polls in recent years have shown that only about 30% of the public expresses confidence in the judicial system as a whole [footnote: Sustainable Governance Indicators (SGI) (2011) Iceland Report by Bertelsmann Stiftung] – a striking figure, all the more so since the professionalism and competence of judges do not appear to be questioned by the population. Further consideration could be paid by the judiciary to the additional measures which could be developed to tackle this negative public perception and thereby strengthen public trust and confidence in this sector ... 76. The rules for the appointment of judges were changed in May 2010, pursuant to Act No. 45/2010 amending Act No. 15/1998 ... 77. Appointment criteria are examined for each applicant by an evaluation committee consisting of five members ... The most suitable candidate is then appointed as a judge by the Minister of the Interior ... No applicant may be appointed to the office of judge without the endorsement of the evaluation committee. However, the provisions allow an exception to this rule: the Minister of the Interior can appoint a candidate from the list of suitable candidates, who meets all the requirements but has not been ranked as the most suitable candidate by the evaluation committee, if the Althingi adopts, by simple majority, such a motion by the Minister. 78. However, the exception described above, which requires an appropriate justification by the Minister, has not applied since the new rules on judicial appointments came into force in 2010. The GET heard that, before the new system applied, the Minister was not bound to follow the advice of the relevant judicial bodies when appointing a person to judicial office and indeed it happened in the past that appointments were made arbitrarily raising criticism as to political influence having filtered in the process ... The GET was also told that the exception provided by law is meant to work more as a safety measure to ensure some sort of review mechanism for the decisions made by the evaluation committee (in the event, for example, of criticisms of corporatism). ... 82. The GET welcomes the measures taken in recent years to further regulate and strengthen the appointment and recruitment procedures in the judiciary (see paragraphs 77 and 78) to respond to concerns that had been raised previously in Iceland... The interlocutors met on-site agreed that the reforms undertaken in this field have provided greater safeguards against improper political influence and have decisively improved the general transparency of the system ...” The European Charter on the Statute for Judges 129. The relevant extract from the European Charter on the Statute for Judges of 8-10 July 1998 [9] reads as follows: 2. SELECTION, RECRUITMENT, INITIAL TRAINING “2.1. The rules of the statute relating to the selection and recruitment of judges by an independent body or panel, base the choice of candidates on their ability to assess freely and impartially the legal matters which will be referred to them, (...). 2.2. The statute makes provision for the conditions which guarantee, by requirements linked to educational qualifications or previous experience, the ability specifically to discharge judicial duties.” The European Charter on the Statute for Judges provides as follows in its Explanatory Memorandum: “1.1 The Charter endeavours to define the content of the statute for judges on the basis of the objectives to be attained: ensuring the competence, independence and impartiality which all members of the public are entitled to expect of the courts and judges entrusted with protecting their rights. The Charter is therefore not an end in itself but rather a means of guaranteeing that the individuals whose rights are to be protected by the courts and judges have the requisite safeguards on the effectiveness of such protection. These safeguards on individuals’ rights are ensured by judicial competence, in the sense of ability, independence and impartiality ...” European UnionThe European Commission The European Commission The European Commission 130. The European Commission’s 2011 Progress Report on Iceland published on 12 October 2011 (SEC(2011) 1202 final) made the following observations regarding the independence of the judiciary in Iceland: “The independence of the judiciary was strengthened. In May 2011, the process of appointing three judges in the Supreme Court took place according to the rules of the amended Judiciary Act. However, the implementation of the new rules on appointing judges and prosecutors still requires further monitoring.” Case-law of the European Union courts (a) Judgment of the General Court (Appeal Chamber) in the case of FV v Council dated 23 January 2018 (T ‑ 639/16 P, EU:T:2018:22) 131. The case concerned an appeal brought by F.V., an official of the Council of the European Union at the material time, against a judgment delivered on 28 June 2016 by the Civil Service Tribunal of the European Union. F.V. claimed, inter alia, that the judgment under appeal had been delivered by a Chamber which had been improperly constituted, having regard to the flaws in the procedure for the appointment of one of the judges on the bench. He complained, in particular, that the judge in question had been appointed to the Civil Service Tribunal through an appointment procedure that had been initiated to fill two other positions in that tribunal. 132. By a decision dated 23 January 2018, the General Court found that the Chamber of the Civil Service Tribunal which delivered the judgment in question had been improperly constituted. It held, in particular, that the Council had failed to comply with the legal framework laid down by the relevant public call for applications, because it had used the list of candidates drawn up following that call – which had been made for the appointment of two judges only – to fill a third post. As the constitution of the relevant Chamber of the Civil Service Tribunal was considered improper on this ground alone, the judgment under appeal was set aside in its entirety. The relevant parts of the General Court’s judgment read as follows: “65. ..., it is therefore necessary to examine whether the flaws in the procedure for the appointment of the judge at issue are such as to affect the proper composition of the Second Chamber of the Civil Service Tribunal which delivered the judgment under appeal. 66. In that context, it must be borne in mind that, according to the case-law of the Court, when the proper constitution of the court which delivered the judgment at first instance is contested and the challenge is not manifestly devoid of merit, the appeal court is required to verify that the court was properly constituted. A ground alleging the irregular constitution of the panel of judges is a ground involving a question of public policy, which must be examined by the appeal court of its own motion, even if this irregularity was not invoked at first instance (see, to that effect, judgments of 1 July 2008, Chronopost and La Poste v UFEX and Others, C ‑ 341/06 P and C ‑ 342/06 P, EU:C:2008:375, paragraphs 44 to 50). 67. As is apparent from the first sentence of the second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union, one of the requirements concerning the composition of the Chamber is that courts must be independent, impartial and previously established by law. 68. The principle of the lawful judge, the objective of which is to guarantee the independence of judicial power with respect to the executive, stems from that requirement, which must be interpreted as meaning that the composition of the court and its jurisdiction must be regulated beforehand by legal provisions (see, to that effect, judgment of 13 December 2012, Strack v Commission, T ‑ 199/11 P, EU:T:2012:691, paragraph 22). ... 72. According to the case-law of the European Court of Human Rights (‘the ECtHR’), the principle of the lawful judge enshrined in the first sentence of Article 6(1) of the ECHR reflects the principle of the rule of law, from which it follows that a judicial body must be set up in accordance with the intention of the legislature (see, to that effect, ECtHR, 27 October 2009, Pandjikidzé and Others v. Georgia, ..., paragraph 103, and 20 October 2009, Gorguiladzé v. Georgia, ..., Paragraph 67). 73. According to the ECtHR, a court must thus be established in accordance with the legal provisions on the establishment and competence of judicial bodies and with any other provision of national law that would render, if it is not complied with, the involvement of one or more judges in the examination of the case improper. This includes in particular provisions relating to the mandates, incompatibilities and disqualification of judges (see, to that effect, ECtHR, 27 October 2009, Pandjikidzé and Others v. Georgia, ..., paragraph 104, and 20 October 2009, Gorguiladzé v. Georgia, ..., paragraph 68). 74. As it is apparent from the case-law of the ECtHR, the principle of the lawful judge requires compliance with the provisions governing the procedure for the appointment of judges (see, to that effect, ECtHR, 9 July 2009, Ilatovskiy v. Russia, ..., paragraphs 40 and 41). 75. Indeed, it is not only essential that judges are independent and impartial, but also that the procedure for their appointment appears to be so. It is for that reason that the rules for the appointment of a judge must be strictly adhered to. Otherwise, the confidence of litigants and the public in the independence and impartiality of the courts might be eroded (see, to that effect, decision of the EFTA Court of 14 February 2017, Pascal Nobile v DAS Rechtsschutz-Versicherungs, E-21/16, paragraph 16). 76. The question whether the flaws in the procedure for the appointment of the judge at issue are such as to affect the proper composition of the Second Chamber of the Civil Service Tribunal which delivered the judgment under appeal must be considered in the light of those principles. 77. In that regard, it must be stated that it is apparent [...], that the Council was fully aware that the list of candidates at issue had not been established with a view to appointing a judge to the post held by Ms [R.P.]. It nevertheless decided to use the list for that purpose. It therefore follows from the appointment itself that the Council deliberately disregarded the legal framework laid down by the public call for applications of 3 December 2013 and the rules governing the appointment of judges to the Civil Service Tribunal. 78. Accordingly, having regard to the importance of compliance with the rules governing the appointment of a judge for the confidence of litigants and the public in the independence and impartiality of the courts, the judge at issue cannot be regarded as a lawful judge within the meaning of the first sentence of the second paragraph of Article 47 of the Charter of Fundamental Rights.” 133. The proposal for the review of this judgment made by the First Advocate General was dismissed by the Court of Justice (Reviewing Chamber) on 19 March 2018 (C-141/18 RX), as the formal conditions under the Statute of the Court of Justice of the European Union on whether a judgment should be reviewed were not met in this case. (b) Judgments of the General Court (Appeal Chamber) and the Court of Justice of the European Union (Grand Chamber) in the cases of Simpson v Council and HG v Commission (i) Judgment of the General Court (Appeal Chamber) dated 19 July 2018 (cases T-646/16 P and T ‑ 693/16 P) 134. The cases of Simpson v Council and HG v Commission concerned appeals lodged with the General Court in September 2016 against judgments delivered by the Civil Service Tribunal in respect of Mr Simpson and Mr H.G., staff members at the Council of the European Union and the European Commission, respectively, at the material time. Both judgments of the Civil Service Tribunal had been delivered by the same panel of judges whose composition had been considered to be irregular by the General Court in the judgment in FV. 135. Relying on its findings in the case of FV, on 19 July 2018 the General Court held that the judgments of the Civil Service Tribunal under review had to be set aside in their entirety on the grounds of infringement of the principle of the right to a judge assigned by law. 136. Upon a request from the First Advocate General, in a decision of 17 September 2018 (EU:C:2018:763) the Reviewing Chamber of the Court of Justice of the European Union (CJEU) decided that the General Court’s judgments in the cases of Simpson and HG should be reviewed, in order to determine whether, having regard, in particular, to the general principle of legal certainty, they affected the unity or consistency of European Union law. The Reviewing Chamber held as follows: “The review shall involve, in particular, the question whether, ..., the appointment of a judge may form the subject matter of a review of indirect legality or whether such a review of indirect legality is – by principle or after the passage of a certain period of time – excluded or limited to certain types of irregularity in order to ensure legal certainty and the force of res judicata.” (ii) Judgment of the Court of Justice of the European Union (Grand Chamber) dated 26 March 2020 (Joined Cases C ‑ 542/18 RX-II and C ‑ 543/18 RX-II, EU:C:2020:232) 137. On 26 March 2020 the Grand Chamber of the CJEU delivered its judgment in the cases of Simpson and HG. While the CJEU upheld the General Court’s finding regarding the irregularity in the judicial appointment procedure at issue, it disagreed with that court’s conclusion as to the effect of that irregularity on the parties’ right to a “tribunal established by law”. The relevant extracts from the judgment read as follows: “50 As regards the answer to the question to be reviewed in this case, it is necessary to begin by examining whether, having regard, in particular, to the general principle of legal certainty, the General Court erred in law by setting aside the contested decisions on the ground that the composition of the panel of judges of the Civil Service Tribunal which had delivered those decisions had been irregular because of an irregularity affecting the procedure for the appointment of one of the members of that panel of judges, leading to a breach of the principle of the lawful judge, laid down in the first sentence of the second paragraph of Article 47 of the Charter. 51 In the context of that examination, it is necessary to determine, first, in what circumstances the appointment of a judge may, like acts covered by Article 277 TFEU, form the subject matter of an incidental review of legality. Secondly, the Court must verify whether, in so far as the irregularity concerning the appointment procedure is established, as determined by the General Court, that irregularity did indeed lead to an infringement of the first sentence of the second paragraph of Article 47 of the Charter, justifying the setting aside of those decisions. ... 72 Since the first sentence of the second paragraph of Article 47 of the Charter corresponds to the first sentence of Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘ECHR’), its meaning and scope are, in accordance with Article 52(3) of the Charter, the same as those laid down by that convention. The Court must therefore ensure that the interpretation which it gives to the second paragraph of Article 47 of the Charter safeguards a level of protection which does not fall below the level of protection established in Article 6 ECHR, as interpreted by the European Court of Human Rights (judgment of 19 November 2019, A. K. and Others (Independence of the Disciplinary Chamber of the Supreme Court), C ‑ 585/18, C ‑ 624/18 and C ‑ 625/18, EU:C:2019:982, paragraph 118 and the case-law cited). 73 According to the settled case-law of the European Court of Human Rights, the reason for the introduction of the term ‘established by law’ in the first sentence of Article 6(1) ECHR is to ensure that the organisation of the judicial system does not depend on the discretion of the executive, but that it is regulated by law emanating from the legislature in compliance with the rules governing its jurisdiction. That phrase reflects, in particular, the principle of the rule of law and covers not only the legal basis for the very existence of a tribunal, but also the composition of the bench in each case and any other provision of domestic law which, if breached, would render the participation of one or more judges in the examination of a case irregular, including, in particular, provisions concerning the independence and impartiality of the members of the court concerned (see, to that effect, ECtHR, 8 July 2014, Biagioli v. San Marino, CE:ECHR:2014:0708DEC000816213, §§ 72 to 74, and ECtHR, 2 May 2019, Pasquini v. San Marino, CE:ECHR:2019:0502JUD005095616, §§ 100 and 101 and the case-law cited). 74 Likewise, the European Court of Human Rights has already had an opportunity to observe that the right to be judged by a tribunal ‘established by law’ within the meaning of Article 6(1) ECHR encompasses, by its very nature, the process of appointing judges (ECtHR, 12 March 2019, Ástráðsson v. Iceland, CE:ECHR:2019:0312JUD002637418, interim judgment, § 98). 75 It follows from the case-law cited in paragraphs 71 and 73 of the present judgment that an irregularity committed during the appointment of judges within the judicial system concerned entails an infringement of the first sentence of the second paragraph of Article 47 of the Charter, particularly when that irregularity is of such a kind and of such gravity as to create a real risk that other branches of the State, in particular the executive, could exercise undue discretion undermining the integrity of the outcome of the appointment process and thus give rise to a reasonable doubt in the minds of individuals as to the independence and the impartiality of the judge or judges concerned, which is the case when what is at issue are fundamental rules forming an integral part of the establishment and functioning of that judicial system. 76 It is in the light of those principles that the Court must examine whether the irregularity committed in the appointment procedure at issue resulted in this instance in an infringement of the parties’ right to a hearing by a tribunal previously established by law, as guaranteed by the first sentence of the second paragraph of Article 47 of the Charter. ... 79 In that context, the mere fact that the Council used the list drawn up following the public call for applications of 3 December 2013 to fill the third post is not sufficient to establish an infringement of a fundamental rule of the procedure for appointing judges to the Civil Service Tribunal that is of such a kind and of such gravity as to create a real risk that the Council made unjustified use of its powers, undermining the integrity of the outcome of the appointment process and thus giving rise to a reasonable doubt in the minds of individuals as to the independence and the impartiality of the judge appointed to the third post, or of the Chamber to which that judge was assigned. 80 In that respect, the irregularity in the appointment procedure at issue is distinguishable from that at issue in the decision of the EFTA Court of 14 February 2017, Pascal Nobile v DAS Rechtsschutz-Versicherungs (E ‑ 21/16), mentioned in paragraph 75 of the judgment of 23 January 2018, FV v Council (T ‑ 639/16 P, EU:T:2018:22). The latter irregularity consisted in the appointment of a judge to the EFTA Court for, exceptionally, a three-year term of office instead of a six-year term, and thus concerned, unlike the irregularity examined in the present cases, the infringement of a fundamental rule in relation to the duration of judges’ mandates at that court which was intended to protect their independence. 81 It follows from the foregoing that the Council’s disregard for the public call for applications of 3 December 2013 does not constitute an infringement of the fundamental rules of EU law applicable to the appointment of judges to the Civil Service Tribunal that entailed an infringement of the applicants’ right to a tribunal established by law, as guaranteed by the first sentence of the second paragraph of Article 47 of the Charter. 82 Consequently, and since the judgments under review do not contain anything else that might cast doubt on compliance with the first sentence of the second paragraph of Article 47 of the Charter, it must be held that the General Court made an error of law in ruling, in those judgments, that that provision had been infringed. The irregularity referred to in the preceding paragraph could not, therefore, by itself justify the setting aside of a judicial decision adopted by the panel of judges to which the judge appointed to the third post was assigned.” (c) Judgment of the Court of Justice of the European Union (Grand Chamber) dated 19 November 2019 (Joined Cases C ‑ 585/18, C-624/18, C-625/18, EU:C:2019:982) 138. On 19 November 2019 the Grand Chamber of the Court of Justice of the European Union delivered a preliminary ruling in response to requests from the Labour and Social Insurance Chamber of the Supreme Court of Poland. The requests mainly concerned the question whether the newly established Disciplinary Chamber of the Supreme Court of Poland satisfied, in the light of the circumstances in which it was formed and its members appointed, the requirements of independence and impartiality required under Article 47 of the Charter of Fundamental Rights of the European Union. Recalling that the interpretation of Article 47 of the Charter was borne out by the case-law of the European Court of Human Rights on Article 6 § 1 of the Convention, the Court of Justice underlined the following principles, as relevant: “120 [The] requirement that courts be independent, which is inherent in the task of adjudication, forms part of the essence of the right to effective judicial protection and the fundamental right to a fair trial, ... ... 123 Those guarantees of independence and impartiality require rules, particularly as regards the composition of the body and the appointment, length of service and grounds for abstention, rejection and dismissal of its members, in order to dispel any reasonable doubt in the minds of individuals as to the imperviousness of that body to external factors and its neutrality with respect to the interests before it ... 124 Moreover, in accordance with the principle of the separation of powers which characterises the operation of the rule of law, the independence of the judiciary must be ensured in relation to the legislature and the executive ... 125 In that regard, it is necessary that judges are protected from external intervention or pressure liable to jeopardise their independence. The rules set out in paragraph 123 above must, in particular, be such as to preclude not only any direct influence, in the form of instructions, but also types of influence which are more indirect and which are liable to have an effect on the decisions of the judges concerned ... ... 127 According to settled case-law of [the European Court of Human Rights], in order to establish whether a tribunal is ‘independent’ within the meaning of Article 6(1) of the ECHR, regard must be had, inter alia, to the mode of appointment of its members and their term of office, the existence of guarantees against outside pressures and the question whether the body at issue presents an appearance of independence (ECtHR, 6 November 2018, Ramos Nunes de Carvalho e Sá v. Portugal, CE:ECHR:2018:1106JUD005539113, § 144 and the case-law cited), it being added, in that connection, that what is at stake is the confidence which such tribunals must inspire in the public in a democratic society (see, to that effect, ECtHR, 21 June 2011, Fruni v. Slovakia, CE:ECHR:2011:0621JUD000801407, § 141). 128 As regards the condition of ‘impartiality’, within the meaning of Article 6(1) of the ECHR, impartiality can, according to equally settled case-law of the European Court of Human Rights, be tested in various ways, namely, according to a subjective test where regard must be had to the personal convictions and behaviour of a particular judge, that is, by examining whether the judge gave any indication of personal prejudice or bias in a given case; and also according to an objective test, that is to say by ascertaining whether the tribunal itself and, among other aspects, its composition, offered sufficient guarantees to exclude any legitimate doubt in respect of its impartiality. As to the objective test, it must be determined whether, quite apart from the judge’s conduct, there are ascertainable facts which may raise doubts as to his or her impartiality. In this connection, even appearances may be of a certain importance. Once again, what is at stake is the confidence which the courts in a democratic society must inspire in the public, and first and foremost in the parties to the proceedings (see, inter alia, ECtHR, 6 May 2003, Kleyn and Others v. Netherlands, CE:ECHR:2003:0506JUD003934398, § 191 and the case-law cited, and 6 November 2018, Ramos Nunes de Carvalho e Sá v. Portugal, CE:ECHR:2018:1106JUD005539113, §§ 145, 147 and 149 and the case-law cited). ... 133 In that regard, as far as concerns the circumstances in which the members of the Disciplinary Chamber were appointed, the Court points out, as a preliminary remark, that the mere fact that those judges were appointed by the President of the Republic does not give rise to a relationship of subordination of the former to the latter or to doubts as to the former’s impartiality, if, once appointed, they are free from influence or pressure when carrying out their role (see, to that effect, judgment of 31 January 2013, D. and A., C ‑ 175/11, EU:C:2013:45, paragraph 99, and ECtHR, 28 June 1984, Campbell and Fell v. United Kingdom, CE:ECHR:1984:0628JUD000781977, § 79; 2 June 2005, Zolotas v. Greece, CE:ECHR:2005:0602JUD003824002 §§ 24 and 25; 9 November 2006, Sacilor Lormines v. France, CE:ECHR:2006:1109JUD006541101, § 67; and 18 October 2018, Thiam v. France, CE:ECHR:2018:1018JUD008001812, § 80 and the case-law cited). 134 However, it is still necessary to ensure that the substantive conditions and detailed procedural rules governing the adoption of appointment decisions are such that they cannot give rise to reasonable doubts, in the minds of individuals, as to the imperviousness of the judges concerned to external factors and as to their neutrality with respect to the interests before them, once appointed as judges (see, by analogy, judgment of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C ‑ 619/18, EU:C:2019:531, paragraph 111). 135 In that perspective, it is important, inter alia, that those conditions and detailed procedural rules are drafted in a way which meets the requirements set out in paragraph 125 above.” (d) Judgment of the Court of Justice of the European Union (Grand Chamber) in the case of Commission v. Poland dated 24 June 2019 (Case C-619/18, EU:C:2019:531) 139. On 24 June 2019 the Grand Chamber of the CJEU delivered its judgment in the case of Commission v. Poland, which mainly concerned the lowering of the retirement age for Supreme Court judges to 65 and which applied to judges of the court appointed before the date on which the relevant law had entered into force. Under the law in question, it would be possible for Supreme Court judges to continue in active judicial service beyond the age of 65 subject to certain conditions, including an authorisation by the President of the Republic of Poland, who would not be bound by any criterion and whose decision would not be subject to any form of judicial review. After emphasising the cardinal importance of maintaining the independence of national courts in order to ensure effective judicial protection, the Court of Justice made the following remarks regarding the role played by the principle of irremovability of judges in guaranteeing the independence of the judiciary: “75 In particular, that freedom of the judges from all external intervention or pressure, which is essential, requires, as the Court has held on several occasions, certain guarantees appropriate for protecting the individuals who have the task of adjudicating in a dispute, such as guarantees against removal from office (see, to that effect, judgment of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice), C ‑ 216/18 PPU, EU:C:2018:586, paragraph 64 and the case-law cited). 76 The principle of irremovability requires, in particular, that judges may remain in post provided that they have not reached the obligatory retirement age or until the expiry of their mandate, where that mandate is for a fixed term. While it is not wholly absolute, there can be no exceptions to that principle unless they are warranted by legitimate and compelling grounds, subject to the principle of proportionality ... 78 In the present case, it must be held that the reform being challenged, which provides that the measure lowering the retirement age of judges of the Sąd Najwyższy (Supreme Court) is to apply to judges already serving on that court, results in those judges prematurely ceasing to carry out their judicial office and is therefore such as to raise reasonable concerns as regards compliance with the principle of the irremovability of judges. 79 In those circumstances, and having regard to the cardinal importance of that principle, recalled in paragraphs 75 to 77 above, such an application is acceptable only if it is justified by a legitimate objective, it is proportionate in the light of that objective and inasmuch as it is not such as to raise reasonable doubt in the minds of individuals as to the imperviousness of the court concerned to external factors and its neutrality with respect to the interests before it.” Following an examination of the facts at issue on the basis of the foregoing principles, the Court of Justice found that the application of the measure lowering the retirement age of the Supreme Court judges to the judges currently serving in that court had undermined the principle of irremovability of judges, which was essential to their independence. Court of Justice of the European Free Trade Association States (EFTA Court) 140. The Court of Appeal of the Principality of Liechtenstein requested an advisory opinion from the EFTA Court in respect of the Agreement on the European Economic Area (EEA Agreement) and the Solvency II Directive 2009/138/EC, and referred three questions to the EFTA Court in that regard. The third question, which was conditional on the entertainment of the first two questions by the EFTA Court after 16 January 2017, concerned the principle of loyalty laid down in Article 3 of the EEA Agreement and the possibility for the EFTA States to question the validity of the decisions of the EFTA Court. In essence the question raised the issue as to whether, from 17 January 2017, the EFTA Court would be lawfully composed in a manner that ensured its independence and impartiality. The reason for the question was that by an ESA/Court Committee Decision of 1 December 2016, the regular judge of the EFTA Court in respect of Norway had been reappointed for a three-year term of office as of 17 January 2017. However, Article 30 § 1 of the Agreement between the EFTA States, on the Establishment of a Surveillance Authority and Court of Justice (SCA), provided that the judges of the EFTA Court would be appointed for a term of six years. 141. On 13 January 2017 the ESA/Court Committee delivered a new decision, whereby it reappointed the judge in respect of Norway for a term of six years and repealed its first decision. 142. On 14 February 2017, in case no. E-21/16, the EFTA Court replied to the Court of Appeal’s third question, the relevant part of which reads as follows: “16. Any assessment of the lawfulness of the Court’s composition, particularly concerning its independence and impartiality, requires that due account is taken of several important factors. First, the principle of judicial independence is one of the fundamental values of the administration of justice. ... Second, it is vital not only that judges are independent and fair, they must also appear to be so. Third, maintaining judicial independence requires that the relevant rules for judicial appointment, as set out in Article 30 SCA, must be strictly observed. Any other approach could lead to the erosion of public confidence in the Court and thereby undermine its appearance of independence and impartiality.” 143. The EFTA Court concluded that it had to take into account the new decision repealing the previous decision and re-appointing the judge in respect of Norway for a term of six years. The new decision was unambiguous and provided for a term that was in accordance with Article 30 of the SCA. Therefore, there could be no doubt as to the lawfulness of the court’s composition as from 17 January 2017. The Inter-American Court of Human Rights 144. In the case of the Supreme Court of Justice (Quintana Coello et al.) v. Ecuador, judgment of 23 August 2013, concerning the removal of twenty-seven judges of the Supreme Court of Justice of Ecuador through a parliamentary resolution, the Inter-American Court of Human Rights made the following remarks on the independence of the judiciary: “144. In its case law, the Court has indicated that the scope of judicial guarantees and effective judicial protection for judges must be examined in relation to the standards on judicial independence. In the case of Reverón Trujillo v. Venezuela, the Court emphasized that judges, unlike other public officials, enjoy specific guarantees due to the independence required of the judiciary, which the Court has understood as ‘essential for the exercise of the judiciary.’ The Court has reiterated that one of the main objectives of the separation of public powers is to guarantee the independence of judges. The purpose of protection is to ensure that the judicial system in general, and its members in particular, are not subject to possible undue restrictions in the exercise their duties by bodies outside the Judiciary, or even by judges who exercise functions of review or appeal. In line with the case law of this Court and of the European Court of Human Rights, and in accordance with the United Nations Basic Principles on the Independence of the Judiciary (hereinafter ‘Basic Principles’), the following guarantees are derived from judicial independence: an appropriate process of appointment, guaranteed tenure and guarantees against external pressures. ... 154. Finally, the Court has emphasized that the State must guarantee the independent exercise of the judiciary, both in its institutional aspect, that is, in terms of the judicial branch as a system, and in its individual aspect, that is, in relation to a particular individual judge. The Court deems it pertinent to point out that the objective dimension is related to essential aspects for the Rule of Law, such as the principle of separation of powers, and the important role played by the judiciary in a democracy. Consequently, this objective dimension transcends the figure of the judge and collectively affects society as a whole ...” Other international texts 145. The Latimer House Guidelines for the Commonwealth on Parliamentary Supremacy and Judicial Independence, adopted on 19 June 1998 at a meeting of the representatives of the Commonwealth Parliamentary Association, the Commonwealth Magistrates and Judges Association, the Commonwealth Lawyers’ Association and the Commonwealth Legal Education Association, provided as follows: II. Preserving Judicial Independence 1. Judicial appointments “Jurisdictions should have an appropriate independent process in place for judicial appointments. Where no independent system already exists, appointments should be made by a judicial services commission ... or by an appropriate officer of state acting on the recommendation of such a commission. The appointment process, whether or not involving an appropriately constituted and representative judicial services commission, should be designed to guarantee the quality and independence of mind of those selected for appointment at all levels of the judiciary. Judicial appointments to all levels of the judiciary should be made on merit ...” 146. The Universal Charter of the Judge was approved by the International Association of Judges on 17 November 1999. Its Article 9 on appointments reads as follows: “The selection and each appointment of a judge must be carried out according to objective and transparent criteria based on proper professional qualification. Where this is not ensured in other ways, that are rooted in established and proven tradition, selection should be carried out by an independent body, that include substantial judicial representation.” 147. In May 2012 the General Assembly of the European Network of Councils for the Judiciary adopted a declaration (the Dublin Declaration), setting minimum standards regarding the recruitment, selection, appointment and promotion of members of the judiciary. The relevant extracts of the declaration read as follows: “1. Judicial appointments should only be based on merit and capability. There requires to be a clearly-defined and published set of selection competencies against which candidates for judicial appointment should be assessed at all stages of the appointment process. 2. Selection competencies should include intellectual and personal skills of a high quality, as well as a proper work ethic and the ability of the candidates to express themselves. ... 8. Diversity in the range of persons available for selection for appointment should be encouraged, avoiding all kinds of discrimination, although that does not necessarily imply the setting of quotas per se, adding that any attempt to achieve diversity in the selection and appointment of judges should not be made at the expense of the basic criterion of merit. 9. The entire appointment and selection process must be open to public scrutiny, since the public has a right to know how its judges are selected. 10. An unsuccessful candidate is entitled to know why he or she failed to secure an appointment; and there is a need for an independent complaints or challenge process to which any unsuccessful applicant may turn if he or she believes that he/she was unfairly treated in the appointment process. 11. If the Government or the Head of State plays a role in the ultimate appointment of members of the judiciary, the involvement of a Minister or the Head of State does not in itself contend against the principles of independence, fairness, openness and transparency if their role in the appointment is clearly defined and their decision-making processes clearly documented, and the involvement of the Government or the Head of State does not impact upon those principles if they give recognition to decisions taken in the context of an independent selection process. Besides, it was also defined as a Standard in this field that where whoever is responsible for making the ultimate appointment (the Government or Head of State) has the right to refuse to implement the appointment or recommendation made in the context of an independent selection process and is not prepared to implement the appointment or recommendation it should make known such a decision and state clearly the reason for the decision.” COMPARATIVE-LAW MATERIAL 148. The Court has considered it appropriate to conduct a comparative survey with regard to the domestic law and practice in forty States Parties to the Convention (namely Albania, Andorra, Austria, Azerbaijan, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, the Czech Republic, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Montenegro, North Macedonia, Norway, Poland, Portugal, Romania, Russia, Serbia, Slovakia, Slovenia, Spain, Sweden, Switzerland, Turkey, Ukraine and the United Kingdom) on the Convention requirement of a “tribunal established by law”. 149. According to the information available to the Court, the concept of a “tribunal established by law” is recognised in the legal systems of all States surveyed, although the terminology used to designate it and the methods of its recognition differ. For instance, while in some States the concept is explicitly recognised in basically identical terms, some other States use the concept of a “lawful” or a “natural” judge or court. 150. The scope of the requirement of a “tribunal established by law” differs amongst the member States surveyed: in almost all the States concerned, the “established by law” requirement clearly involves the question of the composition of a court or tribunal; in thirty-seven member States that requirement relates to the jurisdiction and competence of a court or tribunal to rule in a particular case (in Belgium, Luxembourg and Malta the “established by law” requirement does not seem to cover this matter specifically); and in twenty-nine member States, it specifically relates to the consideration as to whether there is a legal basis for the existence of a court or tribunal. 151. The Court notes, as particularly relevant to the present case, that in nineteen (out of forty) of the States surveyed (namely Andorra, Austria, Azerbaijan, Belgium, Bulgaria, Croatia, France, Georgia, Hungary, Ireland, Italy, Lithuania, Luxembourg, Malta, Montenegro, Norway, Russia, Sweden and the United Kingdom), it is sufficiently established in domestic law and/or practice that the requirement of a “tribunal established by law” also covers the consideration as to whether the legal procedure for the appointment – to the post of judge – of its judges was complied with. As for the remaining twenty-one member States, it appears that it is not sufficiently clear under their domestic law and practice whether the “established by law” requirement also extends to the process of the appointment of judges. 152. The Court further notes that in those nineteen States where the requirement of a “tribunal established by law” clearly extends to the rules relating to the appointment of judges, the legal consequences regarding a judgment given by (or with the participation of) a judge who was appointed in breach of the relevant rules vary. In most of those States, it is possible in certain circumstances to request the annulment or quashing of the judgments adopted by such a judge: nevertheless, in a number of States, such as Austria, Belgium, Georgia, Norway, and Sweden, it is clear from the case-law of the domestic courts that the breach of the domestic law at issue has to be of a particular gravity – the degree of which differs from State to State – for the relevant judgments to be annulled or quashed. Similarly, in certain States, such as Croatia, France, Italy and the United Kingdom, it appears from the domestic law and/or practice that if judicial appointments are quashed or annulled due to the irregularities in the appointment procedure, it would not necessarily mean that all acts or judgments adopted by the judge in question would be annulled or quashed. 153. Lastly, in almost all member States where the requirement of a “tribunal established by law” extends to the procedure for the appointment of judges (that is, nineteen out of forty States as mentioned in paragraph 151 above), the reopening of proceedings is a possibility, and in some instances an obligation, where a judgment has been annulled or quashed due to an irregularity in the appointment of a judge who participated in its delivery (see paragraph 152 above). THE LAW ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AS REGARDS THE RIGHT TO A TRIBUNAL ESTABLISHED BY LAW 154. The applicant complained under Article 6 § 1 of the Convention that one of the three judges on the bench of the newly constituted Court of Appeal which had upheld his criminal conviction, namely A.E., had not been appointed in accordance with the relevant domestic law and that, therefore, the criminal charges against him had not been determined by a “tribunal established by law”, within the meaning of that provision. The first sentence of Article 6 § 1 of the Convention reads as follows: “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.” The Chamber judgment 155. After reiterating the general principles under the Court’s case-law concerning the right to a “tribunal established by law”, the Chamber proceeded with its analysis on the premise that the concept of “establishment” in the first sentence of Article 6 § 1 of the Convention encompassed, by its very nature, the process of appointing judges within the domestic judicial system. According to the Chamber, the principle of the rule of law required that the judicial appointment process be conducted in compliance with the applicable rules of national law in force at the material time. 156. The Chamber further noted that the test of a “flagrant breach of domestic law”, which was ordinarily applied when examining whether national courts had correctly interpreted and applied the provisions of domestic law, should also apply where the alleged breach of domestic law was attributed to another branch of government and the breach had been acknowledged by the domestic courts. The Chamber held in this connection that only those breaches of applicable national rules in the establishment of a “tribunal” that were of a fundamental nature, and that formed an integral part of the establishment and functioning of the judicial system, could be considered to constitute a “flagrant breach of domestic law” in this context. 157. Having thus laid down the main principles that would guide its examination, the Chamber had to determine whether the breaches of the relevant national rules in the procedure for the appointment of certain judges – including A.E. – to the Court of Appeal, as already recognised by the Supreme Court of Iceland, had been “flagrant” and, therefore, had had the result of denying the applicant the right to a hearing before a “tribunal established by law”, having regard to the presence of Judge A.E. on the bench which upheld his conviction. 158. The Chamber noted in the first place that the Supreme Court, which had found that the applicant had enjoyed a fair trial before an independent and impartial “tribunal”, in spite of the irregularities in the appointment of one of the judges on the bench of the Court of Appeal, had not examined as such whether the appointment at issue had constituted a “flagrant” breach of the relevant domestic rules in the light of the Court’s case-law under Article 6 § 1. It noted secondly that, contrary to the argument of the respondent Government, a violation of the principle that a “tribunal” be established by law, as of the closely related principles under the same provision that a “tribunal” be independent and impartial, did not require a separate examination as to whether the breach of that principle had had the effect of rendering a trial unfair. The Chamber considered, thirdly, that having regard to their nature and gravity, the breaches of the national law in the instant case by the Minister of Justice had been of a fundamental nature, as they lay at the core of the appointment process. The Chamber moreover noted – in the light of the factual findings of the Supreme Court – that in addition to constituting a fundamental defect in objective terms, the breaches in question had also demonstrated the Minister’s manifest disregard for the applicable rules in force at the material time. The Chamber lastly noted that the failure of Parliament – as confirmed by the Supreme Court – to adhere to the rule of separate voting on each candidate had also amounted to a serious defect in the appointment procedure, given that the relevant rule had been introduced to minimise the risk of party-political interests unduly influencing the process of appointments to the newly established Court of Appeal. 159. In the light of the foregoing findings, and having particular regard to the importance of securing compliance with applicable rules of national law in a democratic society governed by the rule of law, the Chamber found that the infringements of the domestic law, on account of the executive’s exercise of undue discretion in the judicial appointment process, had amounted to a flagrant breach of the relevant rules applicable at the material time. It therefore concluded, by five votes to two, that there had been a violation of Article 6 § 1 of the Convention in respect of the applicant’s right to a “tribunal established by law” by reason of the unlawful presence of A.E. on the bench of the Court of Appeal which had upheld his criminal conviction (see paragraphs 97-123 of the Chamber judgment). Having regard to the conclusions reached in relation to the applicant’s right to a tribunal established by law, the Chamber further considered that it was not necessary to examine his complaint in relation to the absence of independence and impartiality of the Court of Appeal panel which heard his appeal (see paragraph 126 of the Chamber judgment). Submissions before the Grand ChamberThe parties The parties The parties (a) The applicant 160. The applicant invited the Grand Chamber to follow the approach of the majority in the Chamber and find a violation of Article 6 § 1 on the grounds that the criminal charges against him had not been determined by a “tribunal established by law” on account of A.E.’s presence on the bench of the Court of Appeal which had heard his case, in spite of the irregularities in the process of that judge’s appointment, as established by the domestic courts. 161. The applicant, at the outset, provided an overview of the history of the legislative developments in Iceland concerning the judicial appointment procedure, along the same lines as the information noted in paragraphs 11 ‑ 19 above, all of which, he argued, had sought to reinforce the independence of the courts of law vis-à-vis the executive and to combat political corruption and abuse of power in judicial appointments – examples of which had been seen in Iceland in the past – so as to enhance public confidence in the judiciary. He also submitted, however, that legislation designed to ensure an independent and impartial judiciary would be useless if that legislation was circumvented in the process of appointment of judges, which was precisely the issue in the instant case when the Minister of Justice had decided to disregard the conclusions of the Evaluation Committee. The applicant argued in this regard that despite the number of legislative reforms to counter political corruption in judicial appointments, the Minister of Justice had acted out of political considerations in the proposals that she had made regarding the appointments to the new Court of Appeal. 162. The applicant claimed that the Supreme Court judgment delivered on 24 May 2018, in response to his challenges against the composition of the Court of Appeal in his case, had been defective. This was because it not only contradicted the judgments adopted earlier by the Supreme Court on 19 December 2017, but also wrongly referred to the December 2017 judgments as stating that the deficiency in the voting procedure in Parliament had not been “significant”, whereas no such claim had been made by the Supreme Court in the judgments at issue. The judgment of 24 May 2018 had, moreover, failed to comprise any scrutiny as to whether the criteria established in the Court’s case-law in respect of the “tribunal established by law” requirement had been fulfilled in the present case, or even to examine independently whether the breaches at issue had been serious or not. The Supreme Court’s approach to the case suggested that there would be nothing to obstruct the Minister’s proposals, even if she wished to depart completely from the list prepared by the Evaluation Committee and to propose the fifteen least qualified candidates according to the Committee’s rankings. 163. The applicant attributed the Supreme Court’s unwillingness to duly assess the legal effects of A.E.’s presence on the bench of the Court of Appeal to the small size of the legal community in Iceland. He stated that all four judges who had been appointed to the Court of Appeal upon the proposal of the Minister of Justice, including A.E., had served as alternate judges at the Supreme Court during the period from 5 March to 25 May 2018, when the applicant’s case was pending before the Supreme Court, a situation which, he claimed, constituted a conflict of interest. The applicant added that the annulment of a judicial appointment by a court of law, by reason of irregularities in the appointment process, was unprecedented in Iceland. 164. In the applicant’s opinion, the breaches of the law in the appointment of judges to the Court of Appeal, as identified by the Supreme Court on numerous occasions, had been very serious in nature. He argued in this connection that despite the advice provided by her own legal staff and the clear precedent set by the Supreme Court judgment of 14 April 2011 (see paragraphs 36 and 115 above), the Minister of Justice, who was a lawyer herself, had ignored the legal obligations that had been incumbent on her in the process of judicial appointments to the Court of Appeal. The Supreme Court had similarly found in its judgments of 19 December 2017 that the Minister had acted “in complete disregard” of the obvious danger to the reputational interests of the plaintiffs – namely the two non-appointed candidates – in that case. The applicant contended, on the basis of the aforementioned elements, that the Minister had breached the relevant laws with intent or with such gross negligence, that it bordered on intent. Referring, once again, to his arguments regarding the close political relations between the Minister of Justice and A.E.’s husband B.N. (see paragraph 89 above), the applicant argued that the Minister’s decision had been motivated by political considerations and had amounted to abuse of power. He also argued in this connection that two of the candidates removed from the list by the Minister had been associated with left-wing parties in different capacities, and that candidate number 30 proposed by the Minister had been the husband of a friend and former colleague of hers. 165. The applicant further argued that the explanations provided by the Minister in support of her decision to depart from the Evaluation Committee’s list – which had allegedly been motivated by considerations of gender equality and judicial experience – were unconvincing. He claimed firstly that one of the rejected candidates was a District Court judge who had been ranked higher than all of the four District Court judges whom the Minister had chosen to appoint instead. Secondly, she had appointed a male District Court judge who had been ranked 30th on the Evaluation Committee’s list, but had chosen to ignore a female District Court judge ranked 22nd. In the applicant’s submission, these examples demonstrated that the Minister had not been justified in her decision and suggested an abuse of power. 166. As regards the breaches of the law committed by Parliament, the applicant stated that no plausible explanation had been given as to why Parliament had decided to contravene the clear and unequivocal letter of the law and to submit a single motion on all the candidates for acceptance or rejection. According to the applicant, this was a conscious decision on the part of Parliament, aimed at ensuring the approval of all four candidates who had not been on the Evaluation Committee’s list, and as such it had constituted a breach of a very serious nature. To illustrate his point, the applicant explained that if the proposals had not been put to a single vote, Parliament would then have had to take separate a vote to reject, for instance, the candidate ranked in 7th place in favour of a candidate ranked 30th, who was among the four proposed by the Minister. It was therefore evident that Parliament had failed to act as a check on executive power and had thus neglected a legal duty vested in it for these exact circumstances. The applicant further argued that the explanations given by Parliament to justify the single vote were not satisfactory, as parliamentary custom could not take precedence over statute law. Like any other institution, Parliament had to abide by the law, particularly when the law in question was specifically designed to ensure due process in the appointment of judges and to curb the powers of the executive in that regard by assigning a supervisory function to Parliament. 167. The President of Iceland had, moreover, “given his blessing” to the breach committed by Parliament by signing A.E.’s letter of appointment and declaring, without having procured any independent investigation or legal advice, that no error had been committed in the conduct of the relevant vote in Parliament. All the principal pillars of government had, therefore, failed during the process of the appointment of the Court of Appeal judges. 168. The applicant argued that the breaches in question could not be considered minor for the purposes of the “tribunal established by law” principle under Article 6 § 1. He stressed in this connection the nature of the laws breached, which were intended to ensure the independence of the judiciary through an objective appointment process, and the consequences of those breaches, which, as noted by the District Court in its judgments of 25 October 2018 (see paragraph 92 above), had resulted in a composition of the Court of Appeal including judges other than those who would have been appointed had the appointment process been conducted lawfully. To hold otherwise would render that principle ineffective for failure to afford any meaningful protection. 169. The applicant stressed that the central issue at stake in the present case was the continued meaningful protection of the right to a “tribunal established by law”, which he considered to be a requirement independent from the other rights protected under Article 6 § 1 and “probably the most important” amongst them. He contended that without any real protection of that principle, the rest of the rights under Article 6 § 1 would be “terminally undermined”. He added that the “established by law” principle must be understood not only to mean that a court is to be established by law in a strictly formal and narrow sense, but also – and possibly more importantly – to require that any acts undertaken in the course of establishing a court be lawful in the fullest relevant substantive sense. 170. He further argued that the principle of “legal certainty” would not apply when there had been a “flagrant breach” of the domestic law such as in the present case. He referred in this connection to the relevant paragraphs of the opinion delivered by Advocate General Sharpston in the cases of Simpson and HG (C-542/18 and C-543/18, see Opinion delivered by the Advocate General on 12 September 2019, EU:C:2019:977; see also paragraphs 134 ‑ 137 above for further details on the cases of Simpson and HG ). He also emphasised that the judgments of the Supreme Court dated 19 December 2017, which had established the irregularities in the appointment procedure, had been delivered some ten days prior to the date on which the appointments to the Court of Appeal had come into effect (see paragraphs 67-75 above). In other words, the Icelandic State had proceeded with the appointments notwithstanding the findings of the Supreme Court, which therefore prevented the Government from relying, in good faith, on legal certainty in the present case. 171. In response to an allegation by the Government that the Evaluation Committee had recently changed its assessment practice in a manner consistent with the Minister’s original request to that Committee (see paragraph 190 below), the applicant argued that that allegation had no basis. While the Evaluation Committee had effectively proposed three candidates for one advertised post at the Supreme Court, as argued by the Government, it had done so only because those three candidates had been found to be equally qualified, and not because it had changed its assessment practice. In any event, even if the Evaluation Committee were to be criticised for its assessment method, that would not justify the serious violations of the domestic law by the Minister and Parliament in the present case. 172. As to the Government’s argument that his allegations of a political deal between the Minister and A.E.’s husband B.N. did not make sense chronologically (see paragraph 191 below), the applicant stated that the chronological order did not matter and that the facts spoke for themselves; it was apparent in his view that the Minister had done B.N. a favour, which the latter had repaid four months later. (b) The Government 173. The Government of Iceland invited the Grand Chamber to reject the applicant’s complaints and the Chamber majority’s conclusion in relation to those complaints, and to follow the reasoning adopted in the dissenting opinion, according to which the breaches of some of the rules relating to the appointment of judges to the Court of Appeal were not such as to result in that court’s lacking the required legal basis to subsequently hear cases with the participation of one or more of the four judges proposed by the Minister of Justice. In the Government’s view, the majority judgment suffered from a number of fundamental errors, as indicated below. 174. They noted firstly that in the judgment the majority had disregarded one of the core principles of the Convention system, that is, the principle of subsidiarity, by setting aside the assessment of the highest domestic court of Iceland as to the scope of the relevant rules of domestic law on the lawfulness of a “tribunal”. The Government claimed, by reference to the Court’s relevant case-law, that the majority had failed to acknowledge that the consequences of a violation of domestic law was to be assessed by domestic courts and that it was open to the Court to take a different view only where it found that the domestic courts’ assessment of the law had been “manifestly unreasonable or arbitrary or blatantly inconsistent with fundamental principles of the Convention” (they referred to the example of Pla and Puncernau v. Andorra, no. 69498/01, § 46, ECHR 2004 ‑ VIII). 175. The Government argued, secondly, that the majority in the Chamber had disregarded the fact that the right to a “tribunal established by law” was a right to a competent “tribunal” established previously by law. It had instead treated the term “established by law” in Article 6 § 1 as having the same meaning as “in accordance with” any and all rules, as long as those rules only “related to” the establishment and competence of judicial organs, and regardless of whether the flaw was only procedural in nature with no legal effect on the competence of the “tribunal”. In the Government’s opinion, the difference between the two terms was significant: a defect in the procedure by which a judge had been appointed could mean that the appointment procedure had not been “in accordance with the law”. That did not, however, mean that the purported establishment of the tribunal itself was void; domestic law could still regard it as validly constituted notwithstanding the procedural non ‑ compliance with the appointment procedure. 176. Thirdly, the test of a “flagrant violation of domestic law” established by the majority as a test to be applied by the domestic courts was contrary to the Court’s case-law. The correct approach would have been to ask whether, as a matter of domestic law, the deficiencies in the selection process were such as to render the subsequent appointment of the individual judge invalid. If they were not, the “tribunal” would then be comprised of appointed judges, bound by their legal obligations as holders of judicial office, and would therefore be “established by law”. Under the Court’s previous case-law, the “flagrant violation” test would only allow it to override a domestic court’s finding that a “tribunal” was “established by law” when it was plain and obvious that it was not so established according to domestic law; whereas in the present case, the majority had held that the word “flagrant” related to the “nature and gravity of the alleged breach”, and not to the flagrance of any error in the domestic court’s analysis of domestic law. This approach was inconsistent with the Court’s settled case-law, and with the principle of subsidiarity, and the test proposed was too broad and vague. Moreover, the only cases cited by the majority in support of their approach had been cases of the EFTA Court and of the General Court of the European Union, which concerned very different procedural flaws in very different legal contexts, and raised no issues of subsidiarity. 177. The proposed “flagrant violation” test was also unworkable, in the Government’s opinion. Any violation, no matter what it involved or when it had taken place, would be subject to the test. Accordingly, the judgments delivered by a judge appointed even thirty years ago following a flawed procedure could be contested, if the flaws were considered serious enough by the Court. The Government argued on the basis of this example that the consequences of the proposed test would be worse than, and entirely disproportionate to, the deficiencies it purported to address. 178. Fourthly, while the majority had acknowledged that a test of “flagrant violation of domestic law” could only be met where the breach of law at issue was of a “fundamental nature ... [forming] an integral part of the establishment and functioning of the judicial system” (paragraph 102 of the Chamber judgment), they had failed to have regard to various factors which made it impossible to hold that a “flagrant” violation had taken place in the present circumstances. These factors included the fact that the Court of Appeal, as an institution, had been established by law; that A.E. had been found by the Evaluation Committee, the statutory body designated to make such assessments, to be fully qualified and eligible for appointment as a Court of Appeal judge; that in proposing candidates to Althingi for approval, the Minister of Justice was not required by law to follow the Evaluation Committee’s recommendations in all circumstances; that in taking the course she did, the Minister had acted in good faith at all times and had been driven by entirely legitimate considerations relating to judicial experience and gender balance; that the appointment of A.E., alongside the fourteen other judges, had been approved by Parliament, which had had occasion to scrutinise the Minister’s proposals before the CSC and subsequently in full session and which had not sought to hold individual votes on each candidate despite having the power to do so; that the President of Iceland had formally appointed A.E. as a judge; that from the time when A.E. had taken up office as a judge, she had also undertaken all legal obligations arising from her post pursuant to Article 61 of the Constitution and had enjoyed the Constitutional protection of irremovability from office – which effectively meant that the defects in the appointment process had no effect on the judicial powers or status of A.E. when she participated in the applicant’s case –; that there was no evidence that A.E. had ever acted in any way other than in an exemplary manner as a judge, in the applicant’s case or otherwise; and that the Supreme Court had expressly found that, as a matter of domestic law, such technical flaws as it had identified in the process leading up to A.E.’s presentation for parliamentary approval and subsequent appointment were insignificant and were not such as to invalidate her appointment. 179. At the hearing before the Grand Chamber, the Government advanced some further reasons as to why the breaches at issue could not be considered to be “flagrant”. They argued in particular that, having regard to the unprecedented nature of the appointment process, any errors subsequently identified were not likely to be easily characterised as “flagrant”, unless bad faith could be shown – which had not been the case; that in the proceedings brought by J.R.J. and Á.H., the District Court had not initially found a breach of the law, which showed that any error was less than flagrant; and that the domestic courts had made no finding of bad faith against the Minister. The Government emphasised in this regard that the Supreme Court’s finding in its judgments of 19 December 2017 regarding the danger to the reputation of J.R.J. and Á.H. had been taken out of its context in the Chamber judgment. Those findings were relevant to whether damages should be awarded by reference to conventional questions of foreseeability and remoteness of loss, and they did not concern any deliberate breach of the law. On the contrary, the Supreme Court had stated explicitly in its judgments that it was not finding that the Minister had deliberately set out to harm anyone’s reputation. 180. Fifthly, and lastly, the majority had failed to have regard to the far ‑ reaching implications of their approach. In this connection, the majority had found that any procedural deficiency at any stage of a judicial selection process, however technical or ancient, would be sufficient to render void any subsequent appointment, and any decision delivered by a judge so appointed, even where, as here, there had been express parliamentary approval for the appointment and the appointment had been formally made by the President, and even where everyone involved in the process had acted in good faith and the judge was manifestly qualified. Such an approach would have extremely adverse consequences for the rule of law, judicial independence and legal certainty, and was irreconcilable with the need for security of judicial tenure, which had not been taken into account in the Chamber judgment. Upholding the majority’s reasoning could have the consequence of invalidating not only every Court of Appeal decision involving A.E., but all Court of Appeal decisions, having regard to the critique of the single vote held in Parliament for all fifteen nominees. 181. The implications of such reasoning would, moreover, not be confined to Iceland; any technical deficiency in a judicial selection process would render court decisions susceptible to challenge across the Council of Europe States, regardless of any other safeguards accompanying the appointment process or the remoteness of the defect from the substantive decision under challenge, regardless of domestic court decisions declaring the validity of the appointment, and also regardless of the quality of the candidates appointed and the general safeguards in place for judicial competence and independence. In the Government’s opinion, a procedural deficiency in a judicial selection process should be taken to raise an issue under the “established by law” requirement only if the deficiency in question led to the appointment of an unqualified or ineligible person as a judge, which was not the case on the present facts. 182. In addition to these arguments, the Government contended that the appointment procedure had, overall, been open and transparent. They considered it important to stress that the initial proposal submitted by the Evaluation Committee had met with criticism in Parliament, both from the opposition and from the coalition parties. The criticism had been two-fold: first, it was considered that the Evaluation Committee’s proposal had disregarded gender equality, since of the fifteen candidates proposed, only five were women; second, it was considered that the Evaluation Committee had not given adequate weight to judicial experience. The list proposed by the Evaluation Committee would, therefore, have needed to be changed in any event and in her proposal to Parliament, the Minister of Justice had taken the relevant concerns into account. The Government further stressed that section 4 of the Minister of Justice’s Rules no. 620/2010 listed the objective factors on which the Committee was expected to base its assessment, but it did not say anything about the weight to be accorded to each assessment factor. The Committee had taken it upon itself to give judicial experience the same weight as litigation and administrative experience. The four candidates removed from the Evaluation Committee’s list by the Minister of Justice had received 0.5, 1.0, 3.5 and 5.5 for judicial experience according to the Committee’s assessment table, whereas the four candidates added to the list had received 9.5, 8.5, 7.0 and 6.0. A.E., who was among the female candidates proposed by the Minister, had a thirty-two year judicial career and had more judicial experience that any of the four candidates excluded from the list. That said, the proposal made by the Minister had not been based on objective numerical values; when she had proposed that more weight be given to judicial experience, this did not involve merely comparing the years of experience of the candidates, but also a subjective evaluation of their quality and capabilities. As to the gender equality considerations, the Government did not contest that such considerations only came into play under the Equality Act where candidates of different genders were “equally qualified”, but argued that, contrary to the findings of the Evaluation Committee, the Minister had considered more than fifteen candidates to be equally qualified for the post. 183. Having regard to the foregoing, the Government contended that the Minister’s approach had been entirely rational, even if it suffered from the technical flaws identified, and it had been subject to the safeguards provided by the requirements of parliamentary approval and Presidential appointment. While the requirements of the “sufficient investigation” rule under section 10 of the Administrative Procedures Act, which sought to ensure the factual accuracy of administrative decisions, applied strictly in the field of judicial appointments – given the importance of considerations such as the separation of powers and independence of judges – the Government argued that it was not absolutely certain what that requirement entailed in this specific field. In the present case, the Minister had provided reasoning for her proposals in good faith, yet that reasoning had been deemed insufficient by the Supreme Court. 184. A proper understanding of the Supreme Court judgment dated 24 May 2018 was essential in determining the correct approach to the present proceedings. It had been established in that judgment that A.E. was fully vested with legal office, that she had participated in the applicant’s case “in accordance with domestic law” and the Court of Appeal was, in determining that case, “established by law”. There was nothing arbitrary or manifestly unreasonable in the Supreme Court’s ruling that, even if there were shortcomings in the procedure preceding A.E.’s appointment, this did not entail that the Court of Appeal lacked competence to decide on the applicant’s case. It was therefore important not to confuse the legal effects of the procedural flaw in question regarding the other candidates (that is, the candidates who were removed from the list by the Minister of Justice) with the legal effects of the same flaw on the status of A.E. or on the applicant’s case. That procedural flaw was remote from the proceedings in that case. The Supreme Court had found that, as a matter of domestic law, A.E.’s status had been unaffected by the procedural flaws identified and that, therefore, the Court of Appeal did not lack competence to act as a “tribunal” as a result of A.E.’s presence. According to the Government, its competence in this sense was solely decided by the interpretation of domestic law. The Government argued that while the Chamber had accepted the Supreme Court’s conclusion as to the existence of flaws in the appointment procedure, it had disregarded the same court’s conclusion regarding the lack of any significant legal consequence of the flaw. The approach adopted by the majority implied that the legal effects of breaches of domestic law should not be assessed according to domestic law itself, but immediately and directly according to independent criteria laid down by the Chamber, and this would have the effect of detaching the violation of national law from its legal effects under national law. Referring in particular to the Supreme Court judgments concerning the candidates J.R.J. and Á.H., the Government stressed at the hearing before the Grand Chamber that A.E.’s appointment had been considered valid and effective as a matter of law. If the procedural defects identified had no implications or significance for A.E., then the logical conclusion was that they could not have any effect for the applicant either. 185. Contrary to the circumstances which had in the past led the Court to find a violation of the requirement of a “tribunal established by law”, the procedural rules that had been breached in the present case neither directly regulated the participation of Judge A.E. in the applicant’s case, nor had immediate effects for her presence on the bench. Therefore, A.E.’s participation in the examination of the applicant’s case had not been “irregular” according to the meaning given to that term in the Court’s case-law. The Government also underlined that the Supreme Court judgments of December 2017, on which the majority had relied so heavily, had not been delivered as part of the criminal proceedings against the applicant and had not concerned the question whether the Court of Appeal had been a “tribunal established by law”. 186. The Government further argued that, contrary to the majority’s finding, in its judgment of 24 May 2018 concerning the applicant the Supreme Court had not limited its examination to determining whether Judge A.E.’s appointment had been a “nullity” and whether the applicant’s trial had been fair despite the flaws in the procedure for the appointment of A.E., but had addressed all relevant matters, such as whether Judge A.E.’s appointment had been invalid and whether the applicant’s case had been heard by a “tribunal established by law”. Although the Supreme Court’s conclusion had been based on the Article 6 requirements of independence and impartiality, it no doubt also covered the “established by law” requirement under that provision. 187. The Government also explained, however, that while in theory it was possible for an Icelandic court to evaluate the lawfulness of a judicial appointment and to set aside a ruling in which an unlawfully appointed judge had participated, in practice the procedural flaws of the nature found in the present case would result in an award of damages to the candidates who had not been appointed as a result of the relevant flaws. There had not been a case in the past half-century which suggested that the flaws in question would or could lead to the invalidation of a judicial appointment. 188. In the Government’s view, the right to a “tribunal established by law” was distinct from the “right to an independent tribunal”, as it was a right specifically and directly related to domestic law. In contrast to the case-law relied upon by the majority in the Chamber, the present case was not about the assigning of a particular case to a particular judge – which could raise objective concerns of independence and impartiality – but concerned the general process of the appointment of a judge, with no link to any particular case. Unlike the other cases that the majority had cited, the procedural irregularities established by the Supreme Court here had happened long before the judge in question had taken part in the applicant’s case, they bore no connection with that case, and they carried no implications for the independence or the impartiality of the judge concerned. According to the case-law of the Court, a central issue in cases concerning the right to a “tribunal established by law” was whether the legal defect in any given case was relevant to any of the substantive protections of fairness, independence or impartiality in that case. 189. The Government argued moreover that, given the intervening role of Parliament, the relevant judicial organisation could not be said to have been dependent on the discretion of the executive. They explained in this connection that the special voting procedure before Parliament, as provided for under temporary provision IV, had sought to secure the credentials of the judges to be appointed and to seek consensus as to their appointment, in order to strengthen the legitimacy of those appointments and of the Court of Appeal as such. The legislative developments in the field of judicial appointments over recent decades had all sought to limit ministerial discretion in appointments, which had previously been a point of criticism in Iceland. While the Supreme Court had found that Parliament had failed to observe the voting procedure indicated in temporary provision IV, the Government contended that this was a matter of interpretation and that the flaw in question had not had any effect on the integrity of the process or on the results of the voting. The Government explained that the single vote held in Parliament had in any event been in accordance with the customary practice, and that no member of parliament had requested separate voting. There was, furthermore, no evidence to support the applicant’s allegation that the vote en bloc had been part of a conspiracy to force through the appointment of A.E., nor was there evidence to suggest that the result would have been any different had the proposals been voted on separately. 190. At the hearing before the Grand Chamber the Government put forward some additional arguments. They underlined that, as the Court of Appeal was a new court, there had been no established precedent at the material time as to the procedure to be followed when submitting proposals to Parliament for appointments to that court, or as to how Parliament would vote on such proposals. The Government further argued that recent developments in Iceland had shown that the Evaluation Committee had changed its assessment procedure since 2017 and had now adopted the practice of proposing more candidates than the number of advertised posts, which is what the Minister of Justice had requested from the Committee in the present case (see paragraphs 22 and 25 above). They referred in this connection to an assessment report delivered by the Evaluation Committee on 9 December 2019 in the context of an appointment to the office of Supreme Court judge, where the Committee had proposed three candidates as being the most qualified for one advertised post. 191. The Government also submitted affidavits from B.N. and the Minister to rebut the applicant’s allegations that the Minister’s decision had been driven by ulterior political motives. They argued, in particular, that the applicant’s unfounded allegations concerning the Minister and B.N. made no sense chronologically because at the time when the process for judicial appointments to the Court of Appeal was underway in May 2017, the next parliamentary elections were scheduled to be held in October 2020. It was only as a result of unforeseen developments that general elections were called on 15 September 2017, and that the elections were held prematurely in October 2017 – that is, some three years prior to the initially scheduled date. In these circumstances, it could not be argued that the Minister had proposed B.N.’s wife A.E. to the post of a Court of Appeal judge as part of a political deal to secure her Ministerial post in the new government. The Government added that not only was there a complete absence of material to support the applicant’s extraordinary allegations of bad faith against a wide range of persons and institutions, but also that none of those allegations had been made at the domestic level, which meant that the principle of exhaustion of domestic remedies prevented him from raising them before the Court now. 192. In response to a question put by the Court at the hearing as to the relationship of the right to a “tribunal established by law” with other requirements of a fair hearing, in particular with those of independence and impartiality, the Government submitted (as part of its written responses sent on 20 February 2020 – see paragraph 10 above) that there was a degree of relationship between all elements of a fair trial under Article 6 § 1. Accordingly, the “tribunal established by law” requirement was a facet of the overarching object of Article 6. In the Government’s view, the “established by law” requirement could be construed in one of two ways. Under the first approach, the function of the term “established by law” would be to emphasise that Article 6 required access to a body which had jurisdiction to take legally binding decisions, in that (i) the “tribunal” itself had a proper foundation in domestic law, and (ii) the bench trying a particular case was validly constituted as a matter of domestic law. Under the second approach, the term “established by law” would be construed as importing an additional requirement that there be no legal defect relating to a judge’s appointment that would “destroy the essence of the right to a fair hearing before an independent and impartial tribunal”. The Government argued that the first of these approaches was more consistent with the “ordinary meaning” interpretation rule under Article 31 of the Vienna Convention of 1969 on the Law of Treaties. The second approach, on the other hand, was not necessary in order to achieve the aims of Article 6: importing considerations of fairness, independence and impartiality into the “established by law” requirement would arguably duplicate protections provided elsewhere in Article 6, and obscure the specific function of that requirement. According to the Government, that function – reflected in the first approach identified above – was to ensure that the body hearing a case was legally competent to issue a binding determination in that particular case. 193. The Government lastly stated, in response to the comments received from third parties (see paragraphs 194-204 below), that the present case was wholly different from the kinds of situations mentioned in those interventions. In contrast to the alleged situation in Poland or Georgia, the approach of the Icelandic authorities in the present case had posed no conceivable threat to judicial independence. The third-party interveners (a) The Government of Poland 194. The Government of Poland stated at the outset that the case at issue concerned a matter of fundamental constitutional importance relating to the competence of State bodies in the context of judicial appointments. They argued that the practice of appointment of judges by the executive was widely accepted in Europe, and that such practice did not per se pose a problem under the case-law of the Court or that of the Court of Justice of the European Union. 195. The Government of Poland stressed the significance of the principle of subsidiarity in the Convention mechanism, and argued that the Chamber judgment had disregarded that principle and the margin of appreciation enjoyed by the respondent State’s authorities in implementing their relevant Convention obligations. They argued that the Court should not replace national authorities in determining the correct interpretation of national legislation, which is what the Chamber had done in the instant case by dismissing the findings of the Supreme Court of Iceland in respect of the applicant. The Chamber had, moreover, acted without due consideration for the enormous implications of its decision on the Icelandic judicial system, and on the judicial systems of other member States. They argued in this regard that in cases involving the right to a “tribunal established by law”, the Court’s practice had so far been limited to finding violations only where the breach of the domestic rules on judicial appointments had more serious consequences, such as where the bench had included a person who did not have the status of judge or who could not have been appointed to such office. (b) The Commissioner for Human Rights of the Republic of Poland 196. The Commissioner for Human Rights of the Republic of Poland (“the Polish Commissioner”), Mr Adam Bodnar, submitted that the expression “established by law” in Article 6 § 1 of the Convention should inevitably incorporate the process of judicial appointments. The Commissioner contended that not only should the legal basis, the jurisdiction and the composition of a tribunal be regulated in advance by law, but the law in question should also determine the criteria and the procedure for the appointment of judges, and the appointments should in turn be conducted in compliance with those provisions. Strict observance of such provisions was essential to prevent unlawful interference with the appointment procedure by other branches of government, in particular the executive, and thus to ensure the independence and impartiality of judges. Such strict compliance would also serve to build public trust in the administration of justice and thereby to enhance the democratic legitimacy of the judiciary. The Polish Commissioner considered that it was essential not only that judges be independent and impartial, but also that the procedure for their appointment appeared to be so. 197. The Polish Commissioner indicated his agreement with the Chamber that a flagrant breach of the domestic rules on the appointment of judges constituted a clear violation of Article 6 § 1 of the Convention. A finding of such flagrant breach would render redundant any further examination of the fair trial requirements under Article 6 § 1, since there could be no fair trial before an authority that lacked the attributes of a court of law. The Commissioner further supported the notion that instances of flagrant violation had to be fundamental in nature and form an integral part of the appointment process. Accordingly, only those breaches that had a substantial impact on the conduct and/or outcome of the process would pass the “flagrant breach” threshold. The intentional nature of the breach was also an important factor to be taken into consideration in this regard, as the European Union courts had also acknowledged. 198. The Polish Commissioner stressed that it fell to the Court in the present case to clarify the implications, from the perspective of legal certainty, of a finding that a domestic court had not been “established by law”. In the Commissioner’s view, the deliberate interference by the executive – or by the legislature, as the case may be – with the status of a judge in a manner incompatible with the Convention should override any arguments relating to the principle of legal certainty or irremovability of judges. This was particularly so if there was no mechanism available to review the lawfulness of a judicial appointment prior to the act of appointment. The Commissioner stated that acts aimed at intentionally circumventing or breaching applicable laws must not be rewarded by the acceptance of the situation thus created ( ex iniuria ius non oritur ). 199. As for the discussions concerning the principle of subsidiarity and the States’ margin of appreciation, the Polish Commissioner stated that the right to be tried by an independent and impartial tribunal established by law was an essential element of the right to a fair trial, and that the Convention standard in this regard was autonomous, in the sense of being independent from the relevant national standards established in respective member States. The Court therefore had the authority to assess whether that standard had been applied in a Convention compliant manner by the national authorities and courts, and such assessment did not per se contravene the principle of subsidiarity or the margin of appreciation doctrine. Denying the Court the authority to carry out its own review in this respect would render the very guarantee of Article 6 illusory. 200. The Polish Commissioner lastly submitted that the ruling of the Grand Chamber in the present case would be highly relevant for assessing the compliance of the current practice of judicial appointments in Poland with the Convention standards. The Commissioner drew the Court’s attention to the cases before the Court of Justice of the European Union in this regard, in particular to the judgment delivered by that Court on 19 November 2019 in the case of C ‑ 624/18 (noted in paragraph 138 above). The Commissioner informed the Court that relying on the findings in that judgment, the Polish Supreme Court (Chamber of Labour and Social Security) had found on 5 December 2019 that the National Council of the Judiciary – which had been tasked with making proposals to the President of the Republic for appointments to the Disciplinary Chamber of the Supreme Court – was not an independent and impartial body and that the Disciplinary Chamber could not be considered to be a “court”. In the Commissioner’s opinion, the judgment of the Court of Justice of the European Union had made it clear that the subsequent act of appointment by the President of Republic could not by itself repair a pre-existing deficiency in the appointment process, especially in the case of an ultra vires or improper exercise of authority, error of law, or manifest error of assessment. (c) The Public Defender (Ombudsman) of Georgia 201. The Public Defender of Georgia (“the Public Defender”), Ms Nino Lomjaria, provided an overview of the recent process for the selection and appointment of judges to the Supreme Court of Georgia, which had been subject to criticism both by her office and by various international bodies. The criticisms mainly centred around the lack of transparency of the appointment procedure and the absence of objective selection criteria, which seriously undermined the possibility of merit-based appointments. The Public Defender indicated that she had recently challenged the constitutionality of this process before the Constitutional Court of Georgia. While the Constitutional Court was yet to examine the merits of that claim, it had already confirmed that the right to a fair trial enshrined in the Constitution implied the right of a person to apply to a court composed in accordance with constitutional standards. 202. Referring to a number of international sources, and to the relevant case-law of the Court, the Public Defender stated that the method of selection and appointment of judges played a fundamental role in ascertaining the independence of a “tribunal”. She submitted that there could be no public trust in the judiciary when the judicial selection process was flawed, especially where such flaws called into question the independence of the judiciary. The Public Defender added that the requirement of a “tribunal established by law” would not be satisfied where the breach of the applicable domestic rules raised doubts as to whether a court would have been composed differently but for the breach at issue. The endorsement of these principles by the Grand Chamber was of crucial importance not only for the parties to the present case but for the Council of Europe member States as a whole. (d) Helsinki Foundation for Human Rights 203. The Helsinki Foundation for Human Rights (“the Helsinki Foundation”), a non-governmental organisation based in Poland, similarly submitted that the Grand Chamber’s ruling in the present case would have a considerable impact not only in Iceland, but also on other member States, including Poland. They referred in this connection to what they regarded as the “judiciary crisis” in Poland, which had arisen from the judicial reform procedure undertaken by the Polish Parliament between 2015 and 2018 and which had generated significant criticism at home and abroad, including before the Court of Justice of the European Union. 204. The Helsinki Foundation submitted that according to the Court’s case-law, as followed by the Court of Justice of the European Union, the manner in which judges were appointed was a factor which guided the assessment of judicial independence. Any violations of the rules of appointment, consisting in the increased involvement of political bodies in the judicial appointment process, could put the independence of the judiciary at risk. Such violations could, moreover, undermine the judiciary’s legitimacy, given that in a democratic State, the legitimacy of judges heavily depended on public confidence in their neutrality, objectivity and lack of political affiliation. Accordingly, violations of the rules on judicial appointments by the legislature and the executive seeking to achieve their political objectives could cause serious disruption to a national judicial system, as manifested by the recent developments in Poland. The Helsinki Foundation underlined that only strict adherence to the rules governing the judicial appointment process, in particular to those rules that sought to safeguard against improper political interference by other branches of the State, could ensure respect for the right to an independent and impartial “tribunal”. Tolerance for breaches of the rules on judicial appointment – such as on the ground that any flaws in the earlier stages of the appointment process could be cured subsequently by the official act of appointment – would risk paving the way for abuse of the process for political reasons and would be incompatible with the principle of the rule of law. The Court’s assessmentScope of the applicant’s complaint as regards the right to a “tribunal established by law” Scope of the applicant’s complaint as regards the right to a “tribunal established by law” Scope of the applicant’s complaint as regards the right to a “tribunal established by law” 205. The Grand Chamber considers that it must first determine the scope of the applicant’s complaint concerning the right to a “tribunal established by law”. 206. At the outset it should be pointed out that the present case does not raise an issue as to the lawful existence of the newly established Court of Appeal. It is indeed not disputed between the parties that the Court of Appeal was established by a law emanating from Parliament, namely the new Judiciary Act, the quality of which – in terms of its accessibility and foreseeability – has not been contested by the applicant. 207. The Grand Chamber is similarly not called upon to review the judicial appointment system that is in place in Iceland. As pointed out by the Venice Commission and the CCJE (see paragraphs 122 and 126 above), there are a variety of different systems in Europe for the selection and appointment of judges, rather than a single model that would apply to all countries. The Court reiterates in this connection that although the notion of the separation of powers between the political organs of government and the judiciary has assumed growing importance in its case-law, appointment of judges by the executive or the legislature is permissible under the Convention, provided that appointees are free from influence or pressure when carrying out their adjudicatory role (see Maktouf and Damjanović v. Bosnia and Herzegovina [GC], nos. 2312/08 and 34179/08, § 49, ECHR 2013). The question is always whether, in a given case, the requirements of the Convention are met (see Kleyn and Others v. the Netherlands [GC], nos. 39343/98 and 3 others, § 193, ECHR 2003 ‑ VI, and Henryk Urban and Ryszard Urban v. Poland, no. 23614/08, § 46, 30 November 2010). 208. Nor is there any need for the Grand Chamber to determine whether the relevant domestic law on judicial appointments had been contravened during the process of Judge A.E.’s appointment to the newly constituted Court of Appeal. It notes in this connection that, in two separate judgments delivered on 19 December 2017 (see paragraphs 67-75 above), the Supreme Court of Iceland has already established that the relevant law had not been complied with in so far as the appointment of the four judges proposed by the Minister, including A.E., was concerned. Firstly, by replacing four of the candidates – whom the Evaluation Committee had considered to be among the fifteen best qualified for appointment to the Court of Appeal – with four others – who had not made it to the top fifteen according to the Evaluation Committee’s assessment – without carrying out an independent evaluation of the facts or providing adequate reasons for her decision, the Minister of Justice had breached section 10 of the Administrative Procedures Act. In this connection, she had also disregarded the well-established general principle of Icelandic administrative law that only the most qualified candidates should be selected to public posts. Secondly, the Icelandic Parliament had not held a separate vote on each individual candidate proposed by the Minister of Justice, as required under temporary provision IV of the new Judiciary Act. These findings were, moreover, repeated in the judgment delivered subsequently by the Supreme Court in the applicant’s case (see paragraph 90 above). 209. Reiterating that it is primarily for the national authorities, in particular the courts, to interpret and assess compliance with domestic law (see, for instance, Ramos Nunes de Carvalho e Sá v. Portugal [GC], nos. 55391/13 and 2 others, § 186, 6 November 2018), the Court considers that there is no need to call into question the Supreme Court’s above-mentioned findings. The Grand Chamber should accordingly proceed on the basis that the process by which A.E. was appointed to the Court of Appeal breached some of the relevant rules of domestic law on judicial appointments. It otherwise notes that the legality of the appointments of the remaining eleven judges – who were considered the most qualified on the list submitted by the Evaluation Committee and were subsequently also included on the list of the Minister of Justice submitted before Parliament – is not at issue in the present case. 210. The task of the Grand Chamber in relation to the present complaint is, therefore, limited to determining the consequences of the above-mentioned breaches of domestic law for the purposes of Article 6 § 1, in other words to ascertaining whether Judge A.E.’s presence, in spite of the established irregularities in her appointment, on the bench of the Court of Appeal which heard the applicant’s appeal, deprived the applicant of the right to be tried by a “tribunal established by law”. Scope of the requirement of a “tribunal established by law” (a) General principles and overview of the Court’s existing case-law (i) The notion of a “tribunal established by law” 211. The Court reiterates that under Article 6 § 1 of the Convention, a court or tribunal must always be “established by law”. This expression reflects the principle of the rule of law which is inherent in the system of protection established by the Convention and the Protocols thereto, and which is expressly mentioned in the Preamble to the Convention (see, for example, Jorgic v. Germany, no. 74613/01, § 64, ECHR 2007-III). As the Court has previously held, a tribunal that is not established in conformity with the intentions of the legislature will necessarily lack the legitimacy required in a democratic society to resolve legal disputes (see Lavents v. Latvia, no. 58442/00, § 114, 28 November 2002). 212. The Court further reiterates that “law”, within the meaning of Article 6 § 1 of the Convention, comprises not only legislation providing for the establishment and competence of judicial organs, but also any other provision of domestic law which, if breached, would render the participation of one or more judges in the examination of a case irregular (see Gorguiladzé v. Georgia, no. 4313/04, § 68, 20 October 2009; Pandjikidzé and Others v. Georgia, no. 30323/02, § 104, 27 October 2009; and Kontalexis v. Greece, no. 59000/08, § 38, 31 May 2011). This includes, in particular, provisions concerning the independence of the members of a court, the length of their term of office and their impartiality (see, for example, Gurov v. Moldova, no. 36455/02, § 36, 11 July 2006; DMD GROUP, a.s., v. Slovakia, no. 19334/03, § 59, 5 October 2010; and Miracle Europe Kft v. Hungary, no. 57774/13, § 48, 12 January 2016). 213. In other words, the phrase “established by law” covers not only the legal basis for the very existence of a “tribunal” but also the compliance by that tribunal with the particular rules that govern it (see Sokurenko and Strygun v. Ukraine, nos. 29458/04 and 29465/04, § 24, 20 July 2006) and the composition of the bench in each case (see Richert v. Poland, no. 54809/07, § 43, 25 October 2011, and Ezgeta v. Croatia, no. 40562/12, § 38, 7 September 2017). (ii) The purpose of the requirement that a “tribunal” be “established by law” 214. The Court observes that under its case ‑ law, the object of the term “established by law” in Article 6 § 1 of the Convention is to ensure that the judicial organisation in a democratic society does not depend on the discretion of the executive, but that it is regulated by law emanating from Parliament (see Zand v. Austria, no. 7360/76, Commission’s report of 12 October 1978, Decisions and Reports 15, p. 70, § 69, and Miracle Europe Kft, cited above, § 51). 215. At the same time, although the Court has emphasised the growing importance attached to the notion of separation of powers and the importance of safeguarding the independence of the judiciary (see Baka v. Hungary [GC], no. 20261/12, § 165, 23 June 2016), it has also noted that neither Article 6 nor any other provision of the Convention requires States to comply with any theoretical constitutional concepts regarding the permissible limits of the powers’ interaction (see, for instance, Ramos Nunes de Carvalho e Sá, cited above, § 144). In the Court’s opinion, a certain interaction between the three branches of government is not only inevitable, but also necessary, to the extent that the respective powers do not unduly encroach upon one another’s functions and competences. The question is, once again, whether in a given case the requirements of the Convention are met (see Kleyn and Others, and Henryk Urban and Ryszard Urban, both cited above). (iii) Review of the Court’s case-law 216. The Court has held that, in principle, a violation by a “tribunal” of domestic legal provisions relating to the establishment and competence of judicial organs gives rise to a violation of Article 6 § 1 and that, therefore, it has jurisdiction to examine whether the domestic law has been complied with in this connection. However, having regard to the general principle that it is, in the first place, for the national courts themselves to interpret the provisions of domestic law, the Court has also found that it may not question their interpretation unless there has been a flagrant violation of domestic law (see, mutatis mutandis, Lavents, § 114, and Kontalexis, § 39, both cited above). 217. A review of the Court’s existing case-law reveals that compliance with the requirement of a “tribunal established by law” has so far been examined in a variety of contexts – under both the criminal and civil limbs of Article 6 § 1 – including, but not limited to, the following: (i) a court acting outside its jurisdiction (see Coëme and Others v. Belgium, nos. 32492/96 and 4 others, §§ 107-09, ECHR 2000 ‑ VII, and Sokurenko and Strygun, cited above, §§ 26-28); (ii) the assignment or reassignment of a case to a particular judge or court (see DMD GROUP, a.s.,, cited above, §§ 62-72; Richert, cited above, §§ 41 ‑ 57; Miracle Europe Kft, cited above, §§ 59-67; Chim and Przywieczerski v. Poland, nos. 36661/07 and 38433/07, §§ 138-42, 12 April 2018; and Pasquini v. San Marino, no. 50956/16, §§ 103 and 107, 2 May 2019); (iii) the replacement of a judge without providing an adequate reason as required under the domestic law (see Kontalexis, cited above, §§ 42-44); (iv) the tacit renewal of judges’ terms of office for an indefinite period after their statutory term of office had expired and pending their reappointment (see Gurov, cited above, § 37, and Oleksandr Volkov v. Ukraine, no. 21722/11, §§ 152-56, ECHR 2013); (v) trial by a court where some members of the bench were disqualified by law from sitting in the case (see Lavents, cited above, § 115, and Zeynalov v. Azerbaijan, no. 31848/07, § 31, 30 May 2013); (vi) trial by a bench the majority of which was composed of lay judges despite the absence of a legal basis in domestic law for the exercise of judicial functions as a lay judge (see Gorguiladzé, § 74, and Pandjikidzé and Others, § 110, both cited above); (vii) the participation of lay judges in hearings in contravention of the relevant domestic legislation on lay judges (see Posokhov v. Russia, no. 63486/00, §§ 39-44, ECHR 2003 ‑ IV); (viii) trial by lay judges who had not been appointed in compliance with the procedure established by the domestic law (see Ilatovskiy v. Russia, no. 6945/04, §§ 38-42, 9 July 2009); (ix) delivery of a judgment by a panel which had been composed of a smaller number of members than that provided for by law (see Momčilović v. Serbia, no. 23103/07, § 32, 2 April 2013, and Jenița Mocanu v. Romania, no. 11770/08, § 41, 17 December 2013); (x) conduct of court proceedings by a court administrator who was not authorised under the relevant domestic law to conduct such proceedings (see Ezgeta, cited above, § 44). (b) Refining the case-law principles 218. The instant case provides the Grand Chamber with an opportunity to refine and clarify the meaning to be given to the concept of a “tribunal established by law”, and to analyse its relationship with the other “institutional requirements” under Article 6 § 1 of the Convention, namely, those of independence and impartiality. The Court will therefore first analyse the individual components of that concept and discuss how the terms “tribunal”, “established” and “by law” should be interpreted so as to best reflect its purpose and, ultimately, to ensure that the protection it offers is truly effective. It will then examine the interaction between the requirement of a tribunal established by law and the conditions of independence and impartiality. (i) “Tribunal” 219. According to the Court’s settled case-law, a “tribunal” is characterised in the substantive sense of the term by its judicial function, that is to say, determining matters within its competence on the basis of legal rules and after proceedings conducted in a prescribed manner. It must also satisfy a series of further requirements, such as “independence, in particular of the executive; impartiality; duration of its members’ terms of office; ...” (see, for example, Belilos v. Switzerland, 29 April 1988, § 64, Series A no. 132). 220. In the Court’s view, in addition to the above, it is inherent in the very notion of a “tribunal” that it be composed of judges selected on the basis of merit – that is, judges who fulfil the requirements of technical competence and moral integrity to perform the judicial functions required of it in a State governed by the rule of law. 221. The Court notes, in this regard, the emphasis that is placed on these qualities of technical competence and moral integrity of judges in various prominent international texts as an aspect of the right to a fair trial before an independent and impartial “tribunal” established by law. It would refer in this connection to paragraph 25 of Opinion no. 1 (2001) of the CCJE, which recommends that “the authorities responsible in member States for making and advising on appointments and promotions should now introduce, publish and give effect to objective criteria, with the aim of ensuring that the selection and career of judges are ‘based on merit, having regard to qualifications, integrity, ability and efficiency’” (see paragraph 124 above). It further takes into account the international material cited in paragraphs 117, 129, and 145-147 above. 222. The Court is mindful that neither the characterisation of the Court of Appeal as a “tribunal”, nor the merits of the judges appointed to that court, are as such contested in the present case. It nevertheless emphasises the paramount importance of a rigorous process for the appointment of ordinary judges to ensure that the most qualified candidates – in terms of both technical competence and moral integrity – are appointed to judicial posts. It goes without saying that the higher a tribunal is placed in the judicial hierarchy, the more demanding the applicable selection criteria should be. It is further evident that non-professional judges could be subject to different selection criteria, particularly when it comes to the requisite technical competencies. In the Court’s view, such merit-based selection not only ensures the technical capacity of a judicial body to deliver justice as a “tribunal”, but it is also crucial in terms of ensuring public confidence in the judiciary and serves as a supplementary guarantee of the personal independence of judges [10]. (ii) “Established” 223. The Court reiterates that according to its settled case-law, the phrase “established by law” covers not only the legal basis for the very existence of a “tribunal” but also the compliance by the court or tribunal with the particular rules that govern it and the composition of the bench in each case (see the cases cited in paragraph 213 above). The scope of application of the requirement of a “tribunal established by law” may, therefore, not be confined to instances where a judicial body lacked the competence to act as a court or tribunal under domestic law, as argued by the Government in paragraph 175 above. 224. The Court further observes, as the Government have also indicated (see paragraphs 185 and 188 above), that its case-law on the requirement of a “tribunal established by law” has so far predominantly concerned breaches of domestic rules directly regulating the competence of a tribunal to rule on a particular case, or of those rules which had immediate effects on the composition of a tribunal hearing an applicant’s case. The question that needs to be answered for the purposes of the present case is whether breaches of domestic law that have occurred at the stage of the initial appointment of a judge to serve at a particular court may also be liable to violate the right to a “tribunal established by law”. 225. The Court notes in this connection that there is some precedent in its case-law pointing in that direction, such as the case of Ilatovskiy (cited above, §§ 39-42). That case concerned the conviction of an applicant (in 2002) by a district court composed of one professional judge and two lay judges, who had been appointed as lay judges in 1991 and 1999, respectively. Having established that the appointment of the lay judges in question had not been in compliance with the relevant domestic procedure in force at the material time, the Court concluded that the district court which had given the judgment against the applicant with those lay judges’ participation could not be regarded as a “tribunal established by law”. The judgment in Ilatovskiy, despite its differences from the present case, provides a clear example of a situation where irregularities in the appointment procedure may compromise the legitimacy of a court or tribunal, in which the appointed judges later participate, as one “established by law”. 226. This correlation between the procedure for the appointment of a judge and the “lawfulness” of the bench on which such a judge subsequently sits also finds support in the purpose of the “established by law” requirement, as explained in paragraph 214 above. That requirement reflects the principle of the rule of law and seeks to protect the judiciary against unlawful external influence, from the executive in particular (see paragraph 211 above), although it cannot be excluded that such unlawful interference may also emanate from the legislature or from within the judiciary itself. It moreover encompasses any provision of domestic law –including, in particular, provisions concerning the independence of the members of a court – which, if breached, would render the participation of one or more judges in the examination of a case “irregular” (see paragraph 212 above). The Court is aware that the process of appointment of judges may be open to such undue interference, and finds that it therefore calls for strict scrutiny; moreover, it is evident that breaches of the law regulating the judicial appointment process may render the participation of the relevant judge in the examination of a case “irregular”. 227. As the CCJE observed in an opinion issued in 2015, “[e]ach individual judge who is appointed in accordance with the constitution and other applicable rules thereby obtains his or her constitutional authority and legitimacy” (see paragraph 126 above), therefore suggesting that a judge appointed in contravention of the relevant rules may lack the legitimacy to serve as a judge. Having regard to its fundamental implications for the proper functioning and the legitimacy of the judiciary in a democratic State governed by the rule of law, the Court considers that the process of appointing judges necessarily constitutes an inherent element of the concept of “establishment” of a court or tribunal “by law”, and an interpretation to the contrary would defy the purpose of the relevant requirement. The Court reiterates in this connection that the Convention “is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective” (see, for instance, Coëme and Others, § 98, cited above). 228. The Court also emphasises in this connection that, according to the results of the comparative survey that it has carried out, nearly half of the States surveyed (that is, nineteen out of forty) interpret the requirement of a “tribunal established by law” as clearly encompassing the process of the initial appointment of a judge to office. There is, therefore, already a considerable consensus among the States surveyed in this regard and this cannot be overlooked by the Court. The results further show that in many other States this matter remains undetermined; it cannot, therefore, be excluded that if a similar question were to arise in those States as well, the domestic courts could, in principle, interpret the requirement of a “tribunal established by law” as covering the process of judicial appointment. The Court lastly refers in this connection to the judgment delivered on 26 March 2020 by the CJEU in the cases of Simpson and HG, where it was acknowledged (by reference to the Chamber judgment in the present case) that the right to a “tribunal established by law” encompassed the process of appointing judges (see paragraphs 74 and 75 of the CJEU judgment noted in paragraph 137 above). (iii) “By law” 229. The nature and scope of the cases that have so far come before the Court in respect of the “tribunal established by law” requirement have mostly called for a determination as to whether a court overseeing a case had any legal basis in domestic law and whether the requirements arising from the relevant domestic law had been complied with in the constitution and functioning of that court. The Court wishes to clarify in this connection that, contrary to the Government’s arguments (see paragraph 175 above), it has interpreted the requirement of a “tribunal established by law” also to mean a “tribunal established in accordance with the law” (see, mutatis mutandis, Ilatovskiy, § 39; Momčilović, § 29; and Jenița Mocanu, § 37, all cited above). It considers this interpretation to be consonant with the general object and purpose of the relevant requirement and sees no reason to depart from it. 230. The Court would also like to emphasise at this juncture that the requirement that a tribunal be established “by law” in no way seeks to impose uniformity in the judicial appointment practices of the member States. As indicated above (see paragraph 207), the Court is well aware that there are varying judicial appointment systems across Europe, and the mere fact that the executive, in particular, has decisive influence on appointments – as is the case in many States Parties, where the restraints on executive powers by legal culture and other accountability mechanisms, coupled with a long-standing practice of selecting highly qualified candidates with an independent state of mind, serve to preserve the independence and legitimacy of the judiciary – may not as such be considered to detract from the characterisation of a court or tribunal as one established “by law”. The concern here relates solely to ensuring that the relevant domestic law on judicial appointments is couched in unequivocal terms, to the extent possible, so as not to allow arbitrary interferences in the appointment process, including by the executive. (iv) Interrelationship between the requirements of “independence”, “impartiality” and “tribunal established by law” 231. Although the right to a “tribunal established by law” is a stand ‑ alone right under Article 6 § 1 of the Convention, a very close interrelationship has been formulated in the Court’s case-law between that specific right and the guarantees of “independence” and “impartiality”. 232. In this connection, and as stated above (see paragraph 219), the Court has held that a judicial body which does not satisfy the requirements of independence – in particular from the executive – and of impartiality may not even be characterised as a “tribunal” for the purposes of Article 6 § 1. Similarly, when determining whether a “tribunal” is “established by law”, the reference to “law” comprises any provision of domestic law – including, in particular, provisions concerning the independence of the members of a court – which, if breached, would render the participation of one or more judges in the examination of a case “irregular” (see paragraph 212 above). The Court moreover notes that in order to establish whether a court can be considered to be “independent” within the meaning of Article 6 § 1, regard must be had, inter alia, to the manner of appointment of its members (see, for instance, Ramos Nunes de Carvalho e Sá, cited above, § 144), which, as discussed above (see paragraphs 224-228), pertains to the domain of the establishment of a “tribunal”. 233. Accordingly, while they each serve specific purposes as distinct fair-trial guarantees, the Court discerns a common thread running through the institutional requirements of Article 6 § 1, in that they are guided by the aim of upholding the fundamental principles of the rule of law and the separation of powers. The Court notes that the need to maintain public confidence in the judiciary and to safeguard its independence vis-à-vis the other powers underlies each of those requirements (see in this regard the object of the right to a “tribunal established by law”, as noted in paragraphs 214 and 215 above). In the Court’s view, the recognition of this close connection and common purpose does not, as the Government have argued (see paragraph 192 above), lead to the obscuring of their specific functions or to their duplication, but serves only to reinforce their respective objects and effects. 234. The Court takes the view, against this background, that the examination under the “tribunal established by law” requirement must not lose sight of this common purpose and must systematically enquire whether the alleged irregularity in a given case was of such gravity as to undermine the above-mentioned fundamental principles and to compromise the independence of the court in question. “Independence” refers, in this connection, to the necessary personal and institutional independence that is required for impartial decision-making, and it is thus a prerequisite for impartiality. It characterises both (i) a state of mind, which denotes a judge’s imperviousness to external pressure as a matter of moral integrity and (ii) a set of institutional and operational arrangements – involving both a procedure by which judges can be appointed in a manner that ensures their independence and selection criteria based on merit – which must provide safeguards against undue influence and/or unfettered discretion of the other State powers, both at the initial stage of the appointment of a judge and during the exercise of his or her duties (see, mutatis mutandis, Khrykin v. Russia, no. 33186/08, §§ 28 ‑ 30, 19 April 2011). Whether the irregularities in the present case amounted to a violation of the right to a “tribunal established by law”: the threshold test 235. Having confirmed the scope of the right to a tribunal established by law, the requirements that follow from that right and its relationship to the principles of independence and impartiality, it now falls on the Court to determine whether the irregularities encountered in the judicial appointment procedure at issue had the effect of depriving the applicant of his right to a “tribunal established by law”. Examination of that matter in turn raises the basic question whether any form of irregularity in a judicial appointment process, however minor or technical that irregularity may be, and regardless of when the breach may have taken place, could automatically contravene that right. (a) Is there a need to set a threshold test? 236. The Court considers at the outset that, having regard to the potential implications of finding a violation, and to the important countervailing interests at stake, the right to a “tribunal established by law” should not be construed in an overly expansive manner, whereby any and all irregularities in a judicial appointment procedure would be liable to compromise that right. A degree of restraint should instead be exercised when dealing with this matter. 237. The Court reiterates in this regard that the right to a fair trial under Article 6 § 1 of the Convention must be interpreted in the light of the Preamble to the Convention, which, in its relevant part, declares the rule of law to be part of the common heritage of the Contracting States. As noted in paragraph 211 above, the right to “a tribunal established by law” is a reflection of this very principle of the rule of law and, as such, it plays an important role in upholding the separation of powers and the independence and legitimacy of the judiciary as required in a democratic society. That said, the principle of the rule of law also encompasses a number of other equally important principles, which, although interrelated and often complementary, may in some circumstances come into competition. 238. The Court firstly refers in this connection to the principle of legal certainty, which is implicit in all the Articles of the Convention (see Nejdet Şahin and Perihan Şahin v. Turkey [GC], no. 13279/05, § 56, 20 October 2011; see also the Rule of Law Checklist prepared by the Venice Commission, paragraph 123 above, where legal certainty is identified as one of the benchmarks of the rule of law). Under Convention law, the principle of legal certainty manifests itself in different forms and contexts, such as requiring the law to be clearly defined and foreseeable in its application (see, for instance, Medvedyev and Others v. France [GC], no. 3394/03, § 80, ECHR 2010, in the context of Article 5 of the Convention), or requiring that where the courts have finally determined an issue, their ruling should not be called into question (see, for instance, Brumărescu v. Romania [GC], no. 28342/95, § 61, ECHR 1999 ‑ VII). This latter aspect of legal certainty presupposes, in general, respect for the principle of res judicata, which, by safeguarding the finality of judgments and the rights of the parties to the domestic proceedings – including any persons involved as victims – serves to ensure the stability of the judicial system and contributes to public confidence in the courts. According to the Court’s settled case-law, while the requirements of the principle of legal certainty, and the force of res judicata, are not absolute (see, for an example in the criminal-law sphere, Moreira Ferreira v. Portugal (no. 2) [GC], no. 19867/12, § 62, 11 July 2017), a departure from that principle is justified only when made necessary by circumstances of a substantial and compelling character, such as the correction of fundamental defects or a miscarriage of justice (see, for instance, Ryabykh v. Russia, no. 52854/99, § 52, ECHR 2003 ‑ IX, and OOO Link Oil SPB v. Russia (dec.), no. 42600/05, 25 June 2009). These notions do not, however, lend themselves to precise definition; the Court has to decide, in each case, to what extent the departure from the principle of legal certainty is justified (see, for instance, Sutyazhnik v. Russia, no. 8269/02, § 35, 23 July 2009). 239. The Court secondly notes as relevant the principle of the irremovability of judges during their term of office. This principle is in general considered as a corollary of judges’ independence – which is a prerequisite to the rule of law – and thus included in the guarantees of Article 6 § 1 (see the principles on the irremovability of judges emerging from the Court’s case-law under Article 6 § 1 in Maktouf and Damjanović, cited above, § 49; Fruni v. Slovakia, no. 8014/07, § 145, 21 June 2011; and Henryk Urban and Ryszard Urban, cited above, § 53; see also paragraph 20 of General Comment no. 32 of the UN Human Rights Committee cited in paragraph 118 above; paragraph 57 of Opinion no. 1 (2001) of the CCJE, cited in paragraph 124 above; and Baka, cited above, §§ 72-87, for other relevant international material). However, as recently confirmed by the Grand Chamber of the CJEU in the case of Commission v. Poland (C ‑ 619/18), the principle of the irremovability of judges is similarly not absolute, although an exception to that principle would only be acceptable “if it is justified by a legitimate objective, it is proportionate in the light of that objective and inasmuch as it is not such as to raise reasonable doubt in the minds of individuals as to the imperviousness of the court concerned to external factors and its neutrality with respect to the interests before it” (see paragraph 139 above). 240. A finding that a court is not a “tribunal established by law” may, evidently, have considerable ramifications for the principles of legal certainty and irremovability of judges, principles which must be carefully observed having regard to the important purposes they serve. That said, upholding those principles at all costs, and at the expense of the requirements of “a tribunal established by law”, may in certain circumstances inflict even further harm on the rule of law and on public confidence in the judiciary. As in all cases where the fundamental principles of the Convention come into conflict, a balance must therefore be struck in such instances to determine whether there is a pressing need – of a substantial and compelling character – justifying a departure from the principle of legal certainty and the force of res judicata (see, for instance, Sutyazhnik, cited above, § 38) and from the principle of irremovability of judges, as relevant, in the particular circumstances of a case. 241. The Grand Chamber notes that, while it did not spell it out as such, the Chamber indeed attempted to strike such a balance by introducing a “flagrant breach” test, whereby only the gravest breaches of the judicial appointment rules would amount to a violation of the right to a tribunal established by law, thereby raising a high threshold before an infringement of such rules could give rise to a violation of Article 6 § 1 of the Convention (see paragraphs 101 et seq. of the Chamber judgment and paragraphs 156-159 above). 242. While the Grand Chamber endorses the logic and the general substance of the test introduced by the Chamber, which it will further develop below (see paragraphs 243-252 above), it should state at the outset that it will not apply the same “flagrant breach” concept here. It observes in this connection that the concept of a “flagrant breach” has so far been used by the Court in a variety of different contexts, including, as pertinent, to determine whether the Court may depart from a domestic court’s interpretation as to whether there had been a breach of the domestic law in the first place, as part of its assessment under the “tribunal established by law” requirement (see, for instance, Posokhov, §§ 39-44, and Kontalexis, § 44, both cited above). Transposing that concept to a context such as the present one – where the breach of the domestic law has already been established by domestic courts in an unequivocal manner – for the purpose of determining the consequences of that breach for the applicant’s right to a “tribunal established by law” may give rise to some ambiguity, as has been noted both in the dissenting opinion annexed to the Chamber judgment and in the Government’s submissions (see paragraph 176 above). (b) The threshold test developed by the Grand Chamber 243. The Court is mindful of the difficulties involved in devising a comprehensive balancing test to cater to the possible irregularities that may arise in the judicial appointment processes in different jurisdictions across Europe – all with their own rules and practices – and notes that many States have introduced various mechanisms or standards to deal with this complex matter domestically (see the findings of the comparative-law survey noted in paragraph 152-153 above). The Court further considers that the Contracting States should be afforded a certain margin of appreciation in this connection, since the national authorities are in principle better placed than the Court to assess how the interests of justice and the rule of law – with all its conflicting components – would be best served in a particular situation. It nevertheless considers that the following criteria, taken cumulatively, provide a solid basis to guide the Court – and ultimately the national courts – in an assessment of whether the irregularities in a given judicial appointment procedure were of such gravity as to entail a violation of the right to a tribunal established by law and of whether the balance between the competing principles has been struck fairly and proportionately by the relevant State authorities in the particular circumstances of a given case. (i) The first step of the test 244. The Court considers in the first place that there must, in principle, be a manifest breach of the domestic law, in the sense that the breach must be objectively and genuinely identifiable as such. The Court notes, as mentioned in paragraphs 209 and 216 above, that it will in general cede to the national courts’ interpretation as to whether there has been a breach of the domestic law, unless the breach is “flagrant” (see Lavents, cited above, § 114) – that is, unless the national courts’ findings can be regarded as arbitrary or manifestly unreasonable (see, mutatis mutandis, Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 149, 20 March 2018, and S., V. and A. v. Denmark [GC], nos. 35553/12 and 2 others, § 148, 22 October 2018). 245. The Court emphasises, however, that the absence of a manifest breach of the domestic rules on judicial appointments does not as such rule out the possibility of a violation of the right to a tribunal established by law. There may indeed be circumstances where a judicial appointment procedure that is seemingly in compliance with the relevant domestic rules nevertheless produces results that are incompatible with the object and purpose of that Convention right (see, mutatis mutandis, DMD GROUP, a.s.,, cited above, §§ 62-72). In such circumstances, the Court must pursue its examination under the second and third limbs of the test set out below, as applicable, in order to determine whether the results of the application of the relevant domestic rules were compatible with the specific requirements of the right to a “tribunal established by law” within the meaning of the Convention. (ii) The second step of the test 246. Secondly, the breach in question must be assessed in the light of the object and purpose of the requirement of a “tribunal established by law”, namely to ensure the ability of the judiciary to perform its duties free of undue interference and thereby to preserve the rule of law and the separation of powers. Accordingly, breaches of a purely technical nature that have no bearing on the legitimacy of the appointment process must be considered to fall below the relevant threshold. To the contrary, breaches that wholly disregard the most fundamental rules in the appointment procedure – such as, for instance, the appointment of a person as judge who did not fulfil the relevant eligibility criteria – or breaches that may otherwise undermine the purpose and effect of the “established by law” requirement, as interpreted by the Court, must be considered to contravene that requirement. 247. The Court accordingly takes the view that only those breaches that relate to the fundamental rules of the procedure for appointing judges – that is, breaches that affect the essence of the right to a “tribunal established by law” – are likely to result in a violation of that right (see paragraph 102 of the Chamber judgment). In particular, as the Chamber rightly pointed out, the Court “must look behind appearances and ascertain whether a breach of the applicable national rules on the appointment of judges created a real risk that the other organs of Government, in particular the executive, [could exercise] undue discretion undermining the integrity of the appointment process to an extent not envisaged by the national rules in force at the material time” (see paragraph 103 of the Chamber judgment). (iii) The third step of the test 248. Thirdly, the Court considers that the review conducted by national courts, if any, as to the legal consequences – in terms of an individual’s Convention rights – of a breach of a domestic rule on judicial appointments plays a significant role in determining whether such breach amounted to a violation of the right to a “tribunal established by law”, and thus forms part of the test itself. 249. The Court finds it noteworthy to emphasise that if, as argued by the Government (see paragraphs 176 and 184 above), the national courts’ findings were considered to be fully dispositive of the assessment under the “tribunal established by law” requirement, regardless of the nature, scope and quality of the review conducted by those courts – that is, if the Court was not entitled to assess for itself whether the consequences of the breach of the domestic judicial appointment rules were such as to violate Article 6 – then this autonomous Convention right would be devoid of any real protection in the present context. 250. In this connection, the Court is mindful of its fundamentally subsidiary role in the supervisory mechanism established by the Convention, whereby the Contracting Parties have the primary responsibility to secure the rights and freedoms defined in the Convention and the Protocols thereto (see, for instance, Garib v. the Netherlands [GC], no. 43494/09, § 137, 6 November 2017). It also notes, however, that the principle of subsidiarity imposes a shared responsibility between the States Parties and the Court, and that national authorities and courts must interpret and apply the domestic law in a manner that gives full effect to the Convention (see, in particular, the references to the İzmir and Brighton conferences and declarations in Burmych and Others v. Ukraine (striking out) [GC], nos. 46852/13 et al., §§ 120-22, 12 October 2017). It therefore follows that while it is primarily for the national authorities, notably the courts, to interpret and apply domestic law, it falls ultimately on the Court to determine whether the way in which that law is interpreted and applied produces consequences that are consistent with the principles of the Convention (see, for instance, Scordino v. Italy (no. 1) [GC], no. 36813/97, § 191, ECHR 2006 ‑ V, and Carbonara and Ventura v. Italy, no. 24638/94, § 68, ECHR 2000 ‑ VI). 251. Evidently, as mentioned in paragraph 244 above, when examining whether there has been a breach of the relevant domestic rules in a given case, the Court will in principle defer to the national courts’ interpretation and application of domestic law – unless their findings are arbitrary or manifestly unreasonable. However, once a breach of the relevant domestic rules has been established, the assessment by the national courts of the legal effects of such breach must be carried out on the basis of the relevant Convention case-law and the principles derived therefrom. Where the national courts have duly assessed the facts and the complaints in the light of the Convention standards, have adequately weighed in the balance the competing interests at stake and have drawn the necessary conclusions, the Court would need strong reasons to substitute its assessment for that of the national courts (see, mutatis mutandis, Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, § 107, ECHR 2012, and Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland [GC], no. 931/13, § 164, 27 June 2017). Accordingly, while the national courts have discretion in determining how to strike the relevant balance, as mentioned in paragraph 243 above, they are nevertheless required to comply with their obligations deriving from the Convention when they are carrying out that balancing exercise. 252. The Court lastly points out that while it is not within its competence to set a specific time-limit before which an irregularity in the appointment procedure could be challenged by an individual relying on the “tribunal established by law” right, it does not agree with the Government that the absence of such time-limit would in practice have the effect of rendering the appointments open to challenge indefinitely (see the Government’s argument in paragraph 180 above). This is because, with the passage of time, the preservation of legal certainty will carry increasing weight in relation to the individual litigant’s right to a “tribunal established by law” in the balancing exercise that must be carried out. Needless to say, account must also be taken of the evidential difficulties that would arise with the passage of time and of the relevant statutory time-limits that may be applicable in the domestic law of the Contracting Parties to challenges of such nature. (c) Application of the test to the circumstances of the present case 253. It now falls on the Court to determine whether the facts of the present case gave rise to a violation of the right to a “tribunal established by law”, in the light of the three-step test formulated above. (i) Whether there was a manifest breach of the domestic law 254. The Court observes, as already noted in paragraph 208 above, that the Supreme Court of Iceland found in its judgments of 19 December 2017 and 24 May 2018 that the domestic law had not been complied with in two respects during the process of appointment of the Court of Appeal judges: firstly, by reason of the Minister of Justice’s failure to carry out an independent evaluation of the facts or to provide adequate reasons for her departure from the Evaluation Committee’s proposal, which had been contrary to section 10 of the Administrative Procedures Act; and secondly, because of the non-compliance of Parliament with the special voting procedure set out in temporary provision IV of the new Judiciary Act. The Court reiterates its position that there is no reason to call into question the Supreme Court’s interpretation of the domestic law in this regard, which is also not disputed by the parties, and finds therefore that the first condition of the test is clearly satisfied. (ii) Whether the breaches of the domestic law pertained to a fundamental rule of the procedure for appointing judges 255. As noted in paragraph 246 above, when determining whether a particular defect in the judicial appointment process was of such gravity as to amount to a violation of the right to a “tribunal established by law”, regard must be had, inter alia, to the purpose of the law breached, that is, whether it sought to prevent any undue interference by the executive with the judiciary, and whether the breach in question undermined the very essence of the right to a “tribunal established by law”. With this in mind, the Court will commence its examination under this head by exploring the relevant legal framework in Iceland governing the judicial appointment procedure, with the aim of identifying its object and purpose. 256. A review of the legislative developments concerning the judicial appointment process in Iceland demonstrates that, following a number of reform procedures, an elaborate judicial appointment system was put in place progressively, whereby an Evaluation Committee – an administrative committee acting independently of the executive and composed of five [11] members appointed by the Minister of Justice – tasked with assessing the qualifications of the candidates and determining those most qualified for the post, played a central role. Under the latest legislative changes, the Evaluation Committee, which initially had advisory status only, was subsequently granted the power to issue binding recommendations for judicial appointments to courts at all three levels. While the law did allow the Minister, exceptionally, to deviate from the Committee’s assessment to a certain extent, use of such discretion was always subject to the control of Parliament (see paragraphs 19 and 105 above). 257. It appears from the preparatory material in respect of Act no. 92/1989 and Act no. 45/2010 (see paragraphs 11 and 14 above), as well as from the submissions of the parties before this Court and information obtained proprio motu from international sources (see paragraphs 161, 189, 120 and 128 above respectively), that the main aim behind the establishment of such mechanism was to limit the influence of the executive in the appointment of judges and thereby to strengthen the independence of the judiciary in Iceland. In their 2010 report submitted to the United Nations Human Rights Committee on the implementation of the ICCPR, the government of Iceland expressly stated that the relevant legislative changes had come about as a response to the growing concerns in that State that the rules governing the selection and appointment of judges did not sufficiently guarantee the independence of the judiciary, on account of the role played by ministers in the appointment process (see paragraph 120 above). Similarly, in its evaluation report on Iceland published in 2013, GRECO pointed out that “before the new [appointment] system applied, the Minister was not bound to follow the advice of the relevant judicial bodies when appointing a person to judicial office and indeed it happened in the past that appointments were made arbitrarily raising criticism as to political influence having filtered in the process” (see paragraph 128 above). 258. The Court notes that, as a supplementary guarantee against arbitrariness, the Supreme Court had made it clear as early as 2011 – at which point in time the Evaluation Committee enjoyed only an advisory role – that when using the statutory right to depart from the Committee’s assessment, the Minister of Justice had to base his or her decision on sufficient investigation and assessment, in accordance with the requirement under section 10 of the Administrative Procedures Act and the general principle of Icelandic administrative law calling for the appointment of the most qualified candidates to public posts (see paragraph 115 above). 259. In the light of the foregoing explanations, it now falls to the Grand Chamber to determine whether the breaches in the procedure for the appointment of the four judges proposed by the Minister, including A.E., were of such gravity as to impair the legitimacy of the appointment process and to undermine the very essence of the right to a “tribunal established by law”. (α) The breaches committed by the Minister 260. According to the explanations that she provided to Parliament (see paragraphs 44 and 47 above), the Minister’s decision to depart from the Evaluation Committee’s assessment was mainly motivated by the need to accord more weight to judicial experience in the assessment of the candidates – including subjective elements such as successful courtroom experience – and to achieve gender balance among the appointees. 261. The Court notes, by way of a preliminary remark, that the Evaluation Committee’s decision to accord the same weight to judicial experience as to litigation and administrative experience had been in line with the relevant legislation, which had highlighted the desirability of varied professional experience (see the relevant references in the preparatory material in respect of Act no. 45/2010 and section 21 of the new Judiciary Act in paragraphs 14 and 105 above), as well as with the continuous practice followed by the committee up to that date, for at least the past four years (see the remarks by the Chairman of the committee in paragraph 40 above). The Chairman had emphasised in this regard that changing the weightings after the submission of candidatures, for the benefit of particular candidates and to the disadvantage of others, had to be avoided (ibid.). 262. The Court further notes that the committee’s assessment method had also been in compliance with the gender balance requirements of the Equality Act (no. 10/2008). It observes in this connection that the Supreme Court of Iceland clearly stated in its judgments of 19 December 2017 that the Minister of Justice could not rely on considerations of gender under the Equality Act, as those were only applicable in cases where two candidates of different genders had been considered equally qualified, and that the inadequate investigation by the Minister was not such as to allow her to reach such a decision (see paragraph 73 above). 263. However, even supposing that the Evaluation Committee’s assessment had been flawed in these areas – or that the method used was too technical (see the Parliamentary Ombudsman’s report of 2016 cited in paragraph 116 above, which cautioned against the use of overly technical assessment methods in appointments to public posts in general) – and that, therefore, the Minister of Justice departed from the Committee’s opinion on legitimate grounds, the thrust of the Supreme Court’s finding in its December 2017 judgments was that the Minister had simply failed to explain why she had picked one candidate over another, as she was required to do under section 10 of the Administrative Procedures Act. The Minister’s disagreement with the Committee’s assessment method did not, therefore, absolve her from the obligation to provide solid reasons for her decision to depart from that neutral assessment. 264. The Court notes that the Government placed much emphasis in their observations on the argument that, according to the Committee’s assessment table, all four of the candidates introduced to the list by the Minister of Justice, including A.E., had scored more points in judicial experience than the four removed (see paragraph 182 above). While that is true, the Court agrees with the Supreme Court that this information alone does not suffice to explain why those four particular candidates were removed from the list, or why the other four particular candidates were added. It notes in this regard that in the original list prepared by the Evaluation Committee, there were candidates who had scored lower in judicial experience than the four removed – including two candidates who had not scored any points at all – who the Minister nevertheless decided to keep on the list. Similarly, among the eighteen candidates who had not been recommended by the Committee, there were those – including a female candidate – who had scored higher in judicial experience than some of the four eventually chosen by the Minister [12]. The Government explained that the Minister’s assessment had not been based on a purely mathematical exercise and that she had had regard to subjective factors such as the “success” of a candidate in his or her career. However, the absence of any further explanation as to how she had measured “success”, or any comparison of all the candidates from that perspective, calls into question the objectivity of the selection process. 265. In the Court’s opinion this uncertainty surrounding the Minister’s motives raises serious doubts of irregular interference by the Minister in the judiciary and thus taints the legitimacy of the whole procedure. This is particularly so considering that the Minister was a member of one of the political parties composing the majority in the coalition government, by whose votes alone her proposal was adopted in Parliament (see paragraph 53 above). Moreover, the Court cannot ignore, in this connection, the applicant’s allegations regarding the overall political context within which the Minister made her proposals (see paragraphs 46 and 89 above). While the Court would not affirm that the Minister acted out of political motives, as alleged by the applicant, it considers that the Minister’s actions were of such a nature as to prompt objectively justified concerns to that effect, and this is sufficient also to detract from the transparency of the selection process. 266. The Minister’s failure to comply with the relevant rules was all the more serious considering that she had been reminded of her legal obligations in this regard on a number of occasions, by her own legal advisers, the Chairman of the Evaluation Committee and the ad hoc Permanent Secretary of the Ministry of Justice (see paragraphs 36, 40-42 and 38 respectively above). The Court also refers in this connection to the Supreme Court’s finding in its December 2017 judgments that the Minister had acted “in complete disregard of [the] obvious danger” to the reputational interests of the shortlisted candidates whose names had been removed (see paragraph 75 above). It is therefore fair to conclude that the Minister’s actions seem to have been taken in full awareness of her obligations under the applicable domestic law. 267. Having regard to the breaches committed by the Minister of Justice, and to the circumstances in which they took place, the Court considers that they may not be downplayed as mere technical or procedural irregularities, as argued by the Government, but constitute grave irregularities that go to the essence of the right to a “tribunal established by law”. (β) The shortcomings in the procedure before Parliament 268. The Court observes that the former Judiciary Act, as amended by Act no. 45/2010, gave Parliament a key role in the procedure for the election of judges (see paragraphs 14 and 103 above). This role was further strengthened by the new Judiciary Act in the process of the first round of appointments of the new Court of Appeal judges, whereby Parliament was tasked with approving each of the fifteen candidates proposed by the Minister of Justice, regardless of whether the Minister had deviated from the Evaluation Committee’s proposals or not (see paragraphs 19 and 105 above). 269. In the instant case the Court considers, as also noted by the Supreme Court in its December 2017 judgments, that Parliament could have taken an informed position on the Minister’s proposal, and thus have performed a meaningful supervision of the appointment process, only if the Minister had given due reasons – based on adequate investigation and assessment – for her proposal to depart from the Evaluation Committee’s opinion, which she failed to do. However, contrary to the spirit of its statutory duty to safeguard the legitimacy of the appointment process, Parliament chose to overlook this important shortcoming. Consequently, “the deficiencies in the procedure before the Minister of Justice had in turn resulted in a flawed procedure before Parliament, as those deficiencies were not rectified when the matter came to a vote in Parliament” (see paragraph 74 above), as held by the Supreme Court. 270. The Court further notes that not only did Parliament fail to demand that the Minister provide objective reasons for her proposals to enable it to perform its duty effectively, but also – as the Supreme Court has acknowledged – it did not comply with the special voting rules set out in temporary provision IV of the new Judiciary Act by putting the Minister’s proposal to a vote en bloc, instead of voting on each candidate separately. Arguably, this failure on the part of Parliament would not, on its own, have amounted to a violation of the right to a “tribunal established by law”, particularly bearing in mind that the members of parliament had been offered the opportunity to request separate voting (see paragraphs 51-52 above; see also the Supreme Court’s finding noted in paragraph 70 above that the vote en bloc did not pose an irregularity in respect of the eleven candidates retained from the Committee’s original list). That said, the voting procedure surely compounded the grave breach already committed by the Minister of Justice in respect of the four candidates she had proposed and undermined Parliament’s role as a check against the exercise of undue executive discretion in judicial appointments. Accordingly, the applicant’s belief that Parliament’s decision was driven primarily by party political considerations may not be considered to be unwarranted. 271. The Court therefore considers that while the special parliamentary voting procedure provided for under the new Judiciary Act had sought to strengthen the legitimacy of the appointments to the newly established Court of Appeal (see the Government’s argument to this effect in paragraph 189 above), the intervention of Parliament did not produce the desired effect, on the instant facts – that is, Parliament did not fulfil its duty as the guarantor of the lawfulness of the appointments procedure as regards the four candidates in question. (γ) Concluding remarks under the second step of the test 272. In the light of the foregoing, the Court considers that there has been a grave breach of a fundamental rule of the procedure for appointing judges to the Court of Appeal in the instant case. The Court will therefore turn to the third step of the test, namely that of the review conducted by the domestic courts. (iii) Whether the allegations regarding the right to a “tribunal established by law” were effectively reviewed and remedied by the domestic courts (α) The review conducted by the Supreme Court in the applicant’s case 273. As noted in detail in paragraph 89 above, the applicant argued before the Supreme Court that he had been denied the right to a fair hearing before an independent and impartial “tribunal established by law” on account of the irregularities in the appointment of Judge A.E., who had sat on the bench of the Court of Appeal in his case. He maintained in this connection, inter alia, that the requirement both under the Icelandic Constitution and the Convention for a court to be established by law entailed “not only a mandatory condition that general rules on appointments to the judiciary must be clearly enshrined in statute law, but also, and no less importantly, a mandatory condition that the appointment of judges in each instance must be in compliance with the law”. Contrary to the Government’s allegations (noted in paragraph 191 above), the applicant also raised before the Supreme Court his concerns about the political motivations behind the Minister’s proposals, and expressly mentioned his suspicions regarding her involvement with B.N. (see paragraph 89 above). 274. The Court notes that the Supreme Court dismissed the applicant’s appeal following two main lines of argument (see paragraph 90 above). It first found that although the vote held in Parliament had not complied with the special voting procedure set out in temporary provision IV of the new Judiciary Act, this defect was not significant and the appointment process had otherwise been conducted in accordance with the formal procedures set out in that Act and that temporary provision. Bearing this in mind, and noting in addition that all thirty ‑ three candidates had fulfilled the legal requirements to hold the office of judge at the Court of Appeal, and that fifteen of those candidates had moreover been appointed to such office by letters signed by the President of Iceland and co-signed by the Minister of Justice, the Supreme Court held that it could not be concluded that the appointment of A.E. had constituted a “nullity” ( markleysa ) or that the judgments delivered with her participation had been a “dead letter”. 275. Secondly, the Supreme Court acknowledged that the procedure followed by the Minister of Justice in the appointment process had not complied with certain national rules on judicial appointments, as already established in its judgments of 19 December 2017. It held, nevertheless, that the appointment of all fifteen judges to the Court of Appeal, for an indefinite term, had “become a reality” upon the signing of the letters of appointment by the President, and from that time onwards, they had been under an obligation to follow only the law in the performance of their duties and to perform those duties independently. In those circumstances, the Supreme Court found no sufficient reason to justifiably doubt that the applicant had enjoyed a fair trial before independent and impartial judges, in spite of the flaws in the procedure attributable to the Minister of Justice. 276. In his observations submitted to the Court, the applicant argued that the judgment in question had been defective because the Supreme Court (i) had contradicted its earlier findings in the judgments of December 2017 and (ii) had failed to carry out a proper review of the Court of Appeal’s compliance with the “established by law” requirement in the light of the relevant principles established in the Court’s case-law, or to examine independently whether the breaches at issue had been “serious” or not (see paragraph 162 above). 277. The Government, for their part, stated that the Supreme Court had examined and addressed all relevant matters concerning A.E.’s appointment and the applicant’s right to be heard by a “tribunal established by law”. Following such examination, the Supreme Court had found that, as a matter of domestic law, A.E.’s status as a lawfully appointed judge had been unaffected by the procedural flaws identified and that, therefore, the Court of Appeal did not lack competence to act as a “tribunal” by virtue of A.E.’s presence on its bench. It was essential in this regard not to confuse the legal effects of the procedural flaw in question regarding the other candidates with the legal effects of the same flaw on the status of A.E. as a judge or on the applicant’s case. The Government contended that the principle of subsidiarity required the Court to follow the Supreme Court’s findings in this connection (see paragraphs 174, 184 and 186 above). (β) The Court’s analysis of the review conducted by the Supreme Court 278. The Court notes that the Supreme Court had the power to address and remedy the effects of the above-mentioned irregularities on the applicant’s fair-trial rights by declaring that he had not been tried by a “tribunal established by law” – on account of the participation of Judge A.E. in his case at the Court of Appeal level – and by quashing the relevant Court of Appeal judgment. It is uncontested that in its judgment of 24 May 2018 concerning the applicant, the Supreme Court endorsed its earlier findings regarding the breaches committed by the Minister and Parliament in the process of appointments to the Court of Appeal. The Court agrees with the applicant, however, that when subsequently examining the impact of those breaches on his right to a “tribunal established by law”, the Supreme Court appears to have failed to draw the necessary conclusions from its own findings and to assess the matter in a Convention-compliant manner. 279. In this connection, while the Government contest that finding (see paragraph 186 above), a review of the Supreme Court’s judgment strongly suggests that the Supreme Court limited its examination to finding (i) that the appointment of A.E. had not constituted a “nullity” under Icelandic law and (ii) that despite the flaws in the appointment procedure, the applicant had nevertheless enjoyed a fair trial before an independent and impartial “tribunal” (see paragraphs 113 and 114 of the Chamber judgment). In reaching these findings, the Supreme Court seems to have placed a great deal of emphasis on the mere fact that the appointments had become official upon signature by the President and that, from that point onwards, there was no reason to doubt that the fifteen Court of Appeal judges, all of whom had been found to be legally qualified for the post by the Evaluation Committee, would perform their tasks independently and in accordance with the law. 280. The Court has no reason to doubt that the appointments at issue did not, technically speaking, constitute a nullity ( markleysa ) under Icelandic law or that, once appointed, the individual judges would endeavour to observe the fair-trial requirements. However, none of those findings address as such the question whether the irregularities in the process leading to the appointment of A.E. had, by and of themselves, interfered with the applicant’s right to a “tribunal established by law” as a distinct Article 6 safeguard, as interpreted by the Court. 281. The Court observes, as noted in paragraphs 89 and 273 above, that the applicant had raised some very specific and highly pertinent arguments as to why he considered the breaches at issue to violate, inter alia, the requirement that he be tried by an independent and impartial tribunal and one “established by law”. The Supreme Court did not, however, respond to any of those allegations – including the allegations about political connections between the Minister of Justice and Judge A.E.’s husband, B.N. To the extent that the Government have argued that “the Supreme Court had examined all relevant matters concerning A.E.’s appointment and the applicant’s right to be heard by a tribunal established by law”, the Court notes that such examination is not reflected in the judgment, and as such it remains unknown what that examination entailed and on what legal and factual grounds the Supreme Court reached the conclusion that it did. In other words, it is not clear from the Supreme Court’s judgment why the procedural breaches it had identified in its earlier judgments (dated 19 December 2017) were not of such a nature as to compromise the lawfulness of the appointment of A.E. and, consequently, of her subsequent participation in the applicant’s case. 282. In the Court’s opinion, the way in which the Supreme Court’s judgment was constructed, and the particular emphasis on the fact that the appointments of the fifteen judges, including A.E., had “bec[o]me a reality upon the signing of their letters of appointment” (see paragraph 90 above), suggests an acceptance, or even a resignation, on the part of that court that it had no real say over the matter once the appointments had become official. This understanding in fact finds support in the Government’s submissions: it appears from their statement that, although, in theory, the Icelandic courts had the power to verify the lawfulness of judicial appointments and to quash judgments in which unlawfully appointed judges had participated, procedural breaches of the type encountered in the present case would, in practice, only result in an award of damages to the unsuccessful candidates. Thus there had “not been a case in the past half-century which suggested that the flaws in question would or could lead to the invalidation of a judicial appointment” (see paragraph 187 above). 283. The Court therefore notes that the restraint displayed by the Supreme Court in examining the applicant’s case – and the failure to strike the right balance between preserving, in particular, the principle of legal certainty on the one hand, and upholding respect for the law on the other – was not specific to the facts of the instant case, but it was the Supreme Court’s settled practice. The Court finds that this practice poses problems for two main reasons. It considers in the first place that it undermines the significant role played by the judiciary in maintaining the checks and balances inherent in the separation of powers. It notes secondly that, having regard to the significance and the implications of the breaches in question – as discussed above – and to the fundamentally important role played by the judiciary in a democratic State governed by the rule of law, the effects of such breaches may not justifiably be limited to the individual candidates who have been wronged by non-appointment, but necessarily concern the general public. The Court has on many occasions emphasised the special role in society of the judiciary, which, as the guarantor of justice, a fundamental value in a law-governed State, must enjoy public confidence if it is to be successful in carrying out its duties (see, for instance, Morice v. France [GC], no. 29369/10, § 128, ECHR 2015; Baka, cited above, § 164; and Denisov v. Ukraine [GC], no. 76639/11, § 63, 25 September 2018). The Court also refers in this connection to Opinion no. 1 (2001) of the CCJE, where it was stated that “[n]ot merely the parties to any particular dispute, but society as a whole must be able to trust the judiciary” (see paragraph 124 above). 284. As regards the balance that should have been struck by the Supreme Court between the competing interests at play, the Court deems it important to stress that while the passage of a certain period of time after an allegedly irregular judicial appointment process may in principle tip the balance in favour of “legal certainty” (as stated in paragraph 252 above), that was not the case on the present facts. It notes in this connection that as a result of the proceedings brought by two of the unsuccessful candidates in June 2017 (very shortly after the signing of the appointment letters by the President), the irregularities in the appointment procedure were established by the Supreme Court as early as 19 December 2017, barely two weeks prior to the date on which the fifteen selected candidates even took office. Moreover, the applicant in the present case requested the withdrawal of A.E. on 2 February 2018, that is only one month after she had begun serving, and the final judgment of the Supreme Court in his case was rendered on 24 May 2018, less than four months later. In other words, the appointment of A.E. and the other three candidates in question was contested at the national level immediately after the finalisation of the appointment procedure and the irregularities that vitiated their appointment had been established even before they took office. In these circumstances, the Court considers that the Government cannot reasonably rely on the principles of legal certainty or the security of judicial tenure to argue against a violation of the right to a “tribunal established by law” on the present facts. 285. On a related note, the Court also rejects the argument that the irregularities at issue were too “remote” from the applicant’s case to have had any impact on his right to a tribunal established by law. The Government claimed in this regard that the irregularities had occurred long before Judge A.E. had sat in the applicant’s case, bore no connection with his case and carried no implications for the independence or impartiality of A.E. (see paragraph 188 above). In the Court’s opinion the requisite “proximity” between the irregularities at issue and the applicant’s case was attained when, and only when, the irregularly appointed judge, A.E., sat on the bench of the Court of Appeal which heard his case. The Court notes that the applicant presumably had not had any legal interest, or standing, to contest A.E.’s appointment at an earlier stage. Moreover, the question whether the irregularities at issue had any actual implications for A.E.’s independence or impartiality, this being at the centre of the Supreme Court’s examination of the applicant’s case, did not as such have a direct bearing on the assessment of his separate complaint under the “tribunal established by law” requirement, as already noted in paragraph 280 above. 286. Having regard to the foregoing, the Court, as the ultimate authority on the application and interpretation of the Convention, cannot accept the review undertaken by the Supreme Court in the applicant’s case, as it had no regard to the question whether the object of the safeguard enshrined in the “established by law” concept had been achieved (for other examples where the Court rejected the domestic courts’ assessment regarding compliance with the “tribunal established by law” requirement, see, inter alia, Miracle Europe Kft, § 65, and Chim and Przywieczerski, §§ 138-42, both cited above). (iv) Overall conclusion as to whether there has been a breach of Article 6 § 1 of the Convention as regards the right to a tribunal established by law 287. Over the past decades, the legal framework in Iceland governing judicial appointments has seen a number of important changes aimed at limiting ministerial discretion in the appointments process and thereby strengthening the independence of the judiciary. Controls on ministerial power were further intensified in connection with the process for the appointment of the judges to the newly established Court of Appeal, where Parliament was tasked with approving every candidate proposed by the Minister of Justice, whether that proposal followed the Evaluation Committee’s assessment or not, in order to enhance the legitimacy of that new court. 288. However, as established by the Supreme Court of Iceland, that legal framework was breached during the process for the appointment of the new Court of Appeal judges, particularly by the Minister of Justice. While the Minister was authorised under the relevant law to depart from the Evaluation Committee’s proposal – subject to certain conditions – she had, on the present facts, disregarded a fundamental procedural rule that obliged her to base her decision on sufficient investigation and assessment. This procedural rule was an important safeguard to prevent the Minister from acting out of political or other undue motives that would undermine the independence and the legitimacy of the Court of Appeal, and its breach in the present circumstances was tantamount to restoring the discretionary powers previously held by her office in the context of judicial appointments, thereby neutralising the important gains and guarantees brought by successive legislative reforms. The Court notes that there were further legal guarantees in place to remedy the breach committed by the Minister, such as the procedure before Parliament and the ultimate safeguard of judicial review of the procedure before domestic courts; however, as discussed above, all those safeguards proved ineffective, and the discretion used by the Minister to depart from the Evaluation Committee’s assessment remained unfettered. 289. In the light of the foregoing and having regard to the three-step test set out above, the Court considers that the applicant has been denied his right to a “tribunal established by law”, on account of the participation in his trial of a judge whose appointment procedure was vitiated by grave irregularities that impaired the very essence of the right at issue. 290. The Court therefore concludes that there has been a violation of Article 6 § 1 of the Convention in this regard. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AS REGARDS the RIGHT TO AN INDEPENDENT AND IMPARTIAL TRIBUNAL 291. The applicant complained that he had been denied the right to an independent and impartial tribunal as provided for in Article 6 § 1 of the Convention, having regard to the presence of A.E. on the bench of the Court of Appeal which ruled on his case, in spite of the deficiencies in her appointment. The Chamber judgment 292. The Chamber declared this complaint admissible in its judgment of 12 March 2019, but did not deem it necessary to examine it separately on the merits, in view of the conclusion it had reached in respect of the applicant’s other complaint – concerning the right to a “tribunal established by law” – under the same provision (see paragraph 126 of the Chamber judgment). The parties’ submissions 293. The applicant mainly argued that, in assessing whether a tribunal satisfied the requirement of independence under Article 6 § 1, it was necessary to examine, inter alia, the manner of appointment of its members and to determine whether the tribunal presented an appearance of independence. Having regard to the irregularities in the procedure leading to the appointment of A.E., it could not be held that the Court of Appeal which ruled in his case had had the appearance of an independent and impartial tribunal. During the proceedings before the Grand Chamber, he supported this allegation with some supplementary arguments – such as the instrumental role allegedly played by the irregularly appointed judges in the election of the Court of Appeal’s current president, who enjoyed full discretion in the allocation of the cases within that court – which, in his opinion, further demonstrated the lack of independence and impartiality of the Court of Appeal. 294. The Government argued, by reference to the criteria for an independent and impartial tribunal as set out under the Court’s case-law, that neither the procedural flaw identified by the Supreme Court in the appointment process, nor any other aspect of her appointment, could be taken to cast doubt on A.E.’s independence or impartiality as a judge. They noted in this regard that A.E. was a professional judge who had been recognised by the Evaluation Committee to be eligible for appointment. They further noted that according to the Court’s settled case-law, the appointment of judges by the executive or the legislature was permissible, provided that appointees were free from influence or pressure when carrying out their adjudicatory role (see, for instance, Maktouf and Damjanović, cited above). The Court’s assessment 295. The Court notes that, in the present case, the complaints under the “tribunal established by law” and “independence and impartiality” requirements stem from the same underlying problem, that is, the irregularities in the appointment of A.E. as a judge of the Court of Appeal. As the Court has found above, the irregularities in question were of such gravity that they undermined the very essence of the right to be tried by a tribunal established in accordance with the law. Having made that finding, the Court concludes that the remaining question as to whether the same irregularities have also compromised the independence and impartiality of the same tribunal does not require further examination (see, mutatis mutandis, Zeynalov, § 28, and Miracle Europe Kft, §§ 57-67, both cited above). APPLICATION OF ARTICLES 41 AND 46 OF THE CONVENTION 296. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 297. Article 46 of the Convention provides: “1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties. 2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.” Article 41 of the ConventionDamage Damage Damage 298. Before the Chamber the applicant claimed 5,000 euros (EUR) in respect of non-pecuniary damage. The Government objected to that claim as excessively high, and argued that the finding of a violation would in itself constitute just satisfaction for any non-pecuniary damage sustained by the applicant. 299. The Chamber agreed with the Government that the finding of a violation of Article 6 § 1 of the Convention constituted in itself sufficient just satisfaction. 300. In the proceedings before the Grand Chamber the applicant did not alter his submissions under this head. The Government, for their part, did not comment on this point before the Grand Chamber. 301. The Grand Chamber considers that a finding of a violation can be regarded as sufficient just satisfaction in the present case, and thus rejects the applicant’s claim under this head. Costs and expenses 302. In the Chamber proceedings the applicant claimed EUR 26,795 for the costs and expenses incurred before the domestic courts, including the legal fees awarded by the Court of Appeal in the amount of approximately EUR 3,590. He also claimed EUR 20,150 for the costs and expenses incurred before the Court. The Government submitted in response that the legal fees awarded by the Court of Appeal had been paid by the Treasury in accordance with the Criminal Procedure Act and that the applicant had not submitted any invoice demonstrating that he had reimbursed the Treasury for that amount. The Government further asserted that the costs claimed before the domestic courts and the Court were excessively high. 303. The Chamber considered it reasonable to award the applicant the sum of EUR 15,000 covering costs under all heads. 304. Before the Grand Chamber the applicant repeated his claim for the costs and expenses incurred before the domestic courts (EUR 26,795). He also claimed EUR 95,472 for the costs and expenses incurred before the Court (that is, EUR 20,150 in respect of the Chamber proceedings and EUR 75,322 in respect of the Grand Chamber proceedings). The costs and expenses incurred before the Court included, in particular, lawyer’s fees in the amount of approximately EUR 86,200, as well as translation costs of approximately EUR 6,760 and travel expenses of approximately EUR 1,250. 305. In support of his claims, the applicant submitted invoices issued by his representative, showing that the latter had carried out a total of 387 hours’ work on the case (112 hours before the domestic instances and 275 hours on the application submitted to the Court, at an hourly rate of approximately EUR 255, plus 24% value-added tax), together with invoices documenting the translation and travel expenses. He did not, however, submit any proof to counter the Government’s earlier allegation that he had not reimbursed the Treasury for the legal fees awarded by the Court of Appeal. 306. The Government did not comment on the applicant’s claim for costs and expenses in the Grand Chamber proceedings. 307. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In accordance with Rule 60 § 2 of the Rules of Court, itemised particulars of all claims must be submitted, failing which the Court may reject the claim in whole or in part (see A, B and C v. Ireland [GC], no. 25579/05, § 281, ECHR 2010). 308. The Court notes at the outset that the applicant’s costs and expenses before the domestic courts were incurred only partially to prevent or rectify a violation of a Convention right in the instant case; it further notes that the costs before the Court of Appeal were met in part by the Treasury and that the costs before the District Court bore no relation to the violation found. The Court further finds that the number of hours claimed and the total amount of legal costs requested – both domestically and in connection with the proceedings before the Court – appear excessive (see, for instance, Karácsony and Others v. Hungary [GC], nos. 42461/13 and 44357/13, § 190, 17 May 2016). 309. In the light of the above considerations, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the applicant EUR 20,000 covering costs and expenses under all heads. Default interest 310. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. Article 46 of the Convention 311. The Court reiterates that under Article 46 of the Convention the Contracting Parties have undertaken to abide by the final judgments of the Court in any case to which they are parties, execution being supervised by the Committee of Ministers. It follows, inter alia, that a judgment in which the Court finds a breach of the Convention or the Protocols thereto imposes on the respondent State a legal obligation not just to pay those concerned the sums awarded by way of just satisfaction, but also to choose, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures to be adopted in its domestic legal order to put an end to the violation found by the Court and to redress as far as possible the effects (see Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 249, ECHR 2000 ‑ VIII, and Stanev v. Bulgaria [GC], no. 36760/06, § 254, ECHR 2012). 312. The Court further notes that its judgments are essentially declaratory in nature and that, in general, it is primarily for the State concerned to choose, subject to supervision by the Committee of Ministers, the means to be used in its domestic legal order in order to discharge its obligation under Article 46 of the Convention (see, for instance, Öcalan v. Turkey [GC], no. 46221/99, § 210, ECHR 2005 ‑ IV), provided that such means are compatible with the conclusions and spirit of the Court’s judgment (see, for instance, Scozzari and Giunta, cited above, § 249, and Ilgar Mammadov v. Azerbaijan (infringement proceedings) [GC], no. 15172/13, §§ 148-49, 29 May 2019). However, in certain special circumstances the Court has found it useful to indicate to a respondent State the type of measures that might be taken to put an end to the situation – often a systemic one – which has given rise to the finding of a violation (see, for instance, Ilgar Mammadov, cited above, § 153). 313. Turning to the facts before it, the Court notes that the applicant’s representative was expressly asked at the hearing whether the applicant would seek the reopening of the criminal proceedings against him in the event of a finding of a violation of Article 6 in the instant case, and the representative responded in the negative. While the applicant’s representative has subsequently requested – in his written response to the questions from judges at the hearing (see paragraph 10 above) – to retract that statement, the Court considers that this subsequent request may not be taken into account in the absence of sufficient justification to explain the change in the applicant’s previous position. 314. The Court further considers that in accordance with its obligations under Article 46 of the Convention, it falls upon the respondent State to draw the necessary conclusions from the present judgment and to take any general measures as appropriate in order to solve the problems that have led to the Court’s findings and to prevent similar violations from taking place in the future. That being said, the Court would emphasise that the finding of a violation in the present case may not as such be taken to impose on the respondent State an obligation under the Convention to reopen all similar cases that have since become res judicata in accordance with Icelandic law. | The Court held that there had been a violation of Article 6 § 1 of the Convention, finding that the applicant had been denied his right to a tribunal established by law on account of the participation in his trial of a judge whose appointment had been undermined by grave irregularities which had impaired the very essence of that right. In particular, given the potential implications of finding a violation and the important interests at stake, the Court took the view that the right to a tribunal established by law should not be construed too broadly such that any irregularity in a judicial appointment procedure would risk compromising that right. It thus formulated a three-step test to determine whether irregularities in a judicial appointment procedure were of such gravity as to entail a violation of the right to a tribunal established by law. It then proceeded to find as follows. Over the past decades, the legal framework in Iceland governing judicial appointments had seen some important changes aimed at limiting ministerial discretion in the appointments process and thereby strengthening the independence of the judiciary. Controls on ministerial power had been further intensified in connection with the appointment of judges to the newly established Court of Appeal, where Parliament had been tasked with approving every candidate proposed by the Minister of Justice, in order to enhance the legitimacy of this new court. However, as found by the Icelandic Supreme Court, this legal framework had been breached, particularly by the Minister of Justice, when four of the new Court of Appeal judges had been appointed. While the Minister had been authorised by law to depart from the Evaluation Committee’s proposal, subject to certain conditions, she had disregarded a fundamental procedural rule that obliged her to base her decision on sufficient investigation and assessment. This rule was an important safeguard to prevent the Minister from acting out of political or other undue motives that would undermine the independence and legitimacy of the Court of Appeal, and its breach had been tantamount to restoring the discretionary powers previously held by her office in the context of judicial appointments, thereby neutralising the important gains and guarantees of the legislative reforms. Lastly, the Court recalled that here had been further legal guarantees in place to remedy the breach committed by the Minister, such as the parliamentary procedure and the ultimate safeguard of judicial review before domestic courts, but all those safeguards had proved ineffective, and the discretion used by the Minister to depart from the Evaluation Committee’s assessment had remained unfettered. |
921 | Absence of outside influence | II. DOMESTIC LAW AND PRACTICE A. Prison discipline 1. Disciplinary offences and sanctions 26. The control over and responsibility for prisons and prisoners in England and Wales is vested by the Prison Act 1952 in the Home Secretary. He is empowered by section 47 (1) of that Act to make rules "for the regulation and management of prisons ... and for the classification, treatment, employment, discipline and control of persons required to be detained therein". Such rules are contained in statutory instruments laid before Parliament and made in accordance with the negative resolution procedure, that is, they come into operation unless Parliament otherwise resolves. The rules made by the Home Secretary and currently in force are the Prison Rules 1964, as amended. 27. Rule 47 creates a total of twenty-one disciplinary offences of varying degrees of seriousness. So far as relevant to the present case, it provides that "A prisoner shall be guilty of an offence against discipline if he (1) mutinies or incites another prisoner to mutiny; (2) does gross personal violence to an officer". These acts are classified as "especially grave offences". 28. The Rules list the "awards" which may be made for an offence against discipline; they range from a caution upwards and include: (a) forfeiture of certain privileges; (b) exclusion from associated work; (c) stoppage of earnings; (d) cellular confinement; (e) forfeiture of remission of sentence. In the case of an "especially grave offence", the sanctions mentioned at (b), (c) and (d) above may not be imposed for a period exceeding 56 days but there is no limit as regards those mentioned at (a) and (e) (Rules 51 and 52). Where more than one offence has been committed, the respective awards may be ordered to run consecutively, although there is no provision in the Rules on this point. 29. Section 25 (1) of the Prison Act 1952 provides: "Rules made under section 47 of this Act may make provision whereby, in such circumstances as may be prescribed by the rules, a person serving a sentence of imprisonment for such a term as may be so prescribed may be granted remission of such part of that sentence as may be so prescribed on the ground of his industry and good conduct, and on the discharge of a person from prison in pursuance of any such remission as aforesaid his sentence shall expire." Under Rule 5 (made pursuant to this section), a prisoner serving a sentence of imprisonment other than for life "may ... be granted remission" not exceeding one-third of his sentence. This therefore represents the maximum period that may be forfeited under a disciplinary award. Under both the Prison Act and the Rules, remission - which is seen by the authorities as part of the process for encouraging the reform of prisoners - is a discretionary measure. In practice, at the outset of his sentence every prisoner is given an estimated date for release, calculated by reference to the maximum possible remission, and he will be released on that date unless remission has been forfeited in disciplinary proceedings. Forfeiture of remission - which is not awarded solely for the most serious offences - does not have the effect of increasing the original sentence and it is the latter which continues to provide the legal basis for the detention. 2. Disciplinary proceedings (a) Institution of proceedings 3O. Conduct constituting a disciplinary offence under the Rules may also amount to an offence under the criminal law. Thus, doing gross personal violence to an officer corresponds to the crime of assault occasioning actual bodily harm. Mutiny and incitement to mutiny, on the other hand, are not as such offences under the general criminal law, although the underlying facts might found a charge of, for instance, conspiracy. According to the Government, where the conduct amounts to both a disciplinary and a criminal offence, the Prison Department of the Home Office decides on an ad hoc basis whether the matter should be referred to the police with a view to prosecution in the courts. Conduct so referred, they said, generally involved substantial violence; other relevant factors might be the prevalence of the conduct in question within the prison, the feelings of staff and inmates, the prisoner ’ s record and behaviour, the amount of any remission he might previously have lost and of his sentence remaining to be served, and the cost, inconvenience and security risks involved in a criminal trial. According to the applicants, however, an individual prison officer may himself report the matter to the police, and the Government recognised that, in any case where the police themselves decided not to prosecute, a private prosecution remained a possibility. Moreover, the same facts may, theoretically at least, give rise to both criminal and disciplinary proceedings (see R. v. Hogan [1960] 3 All England Law Reports 149). 31. Where a prisoner is to be charged with an offence against discipline, the charge must be laid as soon as possible and must, in the first instance, be inquired into by the prison governor, generally not later than the day following the laying of the charge (Rule 48). The prisoner must be informed of the charge as soon as possible and, in any event, before the governor ’ s inquiry (Rule 49). Certain less serious matters are dealt with by the governor alone. In the case, however, of a charge of an "especially grave offence", he has to inform the Home Secretary forthwith and, unless otherwise directed by him, refer the charge to the prison ’ s Board of Visitors (Rule 52). (b) The Board of Visitors 32. A Board of Visitors is a body that has to be appointed, by the Home Secretary, for each prison in England and Wales; its members, at least two of whom must be justices of the peace - who are not necessarily lawyers -, hold office for three years or such less period as the Home Secretary may appoint (section 6 of the Prison Act 1952, as amended by the Courts Act 1971, and Rule 92). They may be re-appointed. There are l15 Boards in all and each has between 8 and 24 members, who are unpaid but are reimbursed their expenses. Anyone may seek appointment but in practice most candidates are persons suggested by existing members. The main principles adopted in making appointments are to achieve a roughly equal number of magistrates and non-magistrates; to provide members having the requisite personal qualities, interest and time; and to ensure that membership contains a good cross-section of the population. A Board is normally appointed for a three-year term; there is no express statutory provision enabling the Home Secretary to dismiss a member and resignation before expiry of a term of office would, according to the Government, be required only in the most exceptional circumstances. 33. A Board ’ s duties include, in addition to inquiring into charges of disciplinary offences, satisfying itself as to the state of the premises, the administration of the prison and the treatment of inmates, hearing a prisoner ’ s complaints or requests, directing the governor ’ s attention to matters calling for his attention and making reports to the Home Secretary (Rules 94, 95 and 97). In case of urgent necessity, it has power to suspend any prison officer until the decision of the Home Secretary is known (Rule 94 (4)). Its members are required to visit the prison frequently, have a right of access to every part of the prison and to prison records and may interview any prisoner out of the sight and hearing of officers (Rule 96). A Board ’ s adjudicatory functions generally account for a small proportion of its overall duties and, of the small percentage of prison disciplinary proceedings which are conducted before Boards, few concern "especially grave offences". The various functions of Boards of Visitors were examined by an independent committee set up by "Justice", the Howard League for Penal Reform and the National Association for the Care and Resettlement of Offenders. In its report of 1975 ("the Jellicoe report"), this committee noted that "Boards take their duties of adjudication very seriously", but that "in spite of the efforts made to do justice it is doubtful whether it is seen to be done". It concluded that to be involved in the adjudication of serious offences was incompatible with the supervisory body ’ s need to establish conspicuous independence and therefore recommended that "the body responsible for supervision should not have a disciplinary function". Nevertheless, "after careful consideration", the Home Secretary decided in 1976 that "the independence of Boards of Visitors was compatible with their other functions". The status of Boards was also considered in the St. Germain case (see paragraph 39 below). In the Court of Appeal, Lord Justice Waller stated that "Boards of visitors hold the balance between the governor and the internal discipline of the prison and the prisoner himself and, when sitting [in an adjudicatory capacity], can be regarded as ‘ an impartial and independent authority ’ "; for Lord Justice Megaw, a Board ’ s adjudicatory function "was properly regarded as a separate and independent function, different in character from [its] other functions". (c) Procedure before the Board of Visitors 34. When a charge of an "especially grave offence" is referred to a Board, its chairman must summon a special meeting at which not more than five nor fewer than three members - at least two being justices of the peace - must be present (Rule 52). If, after inquiring into the charge, the Board finds the offence proved, it has to make one of the awards mentioned in paragraph 28 above, although the implementation thereof may be suspended. 35. Neither the Prison Act 1952 nor the Rules lay down a detailed code of procedure for disciplinary proceedings before Boards of Visitors. However, Rule 49 (2) - a similar provision appears in section 47 (2) of the Act - reads as follows: "At any inquiry into a charge against a prisoner he shall be given a full opportunity of hearing what is alleged against him and of presenting his own case." The procedure used to be arranged as a matter of practice. Since 1977 Boards have been issued by the Prison Department of the Home Office with a booklet entitled "Procedure for the Conduct of an Adjudication by a Board of Visitors". 36. Proceedings before the Board are initiated by means of a report by a prison officer to the governor containing details of the alleged offence. The prisoner will receive a "notice of report", stating the alleged offence and the time, date and place thereof, and may reply to the charge in writing. He will also be given a form, which has no statutory force, outlining the procedure which will be followed when he appears before the Board: he will be asked to plead to the charge and may question witnesses in support of the charge, request that witnesses on his behalf be heard and himself give evidence or make his defence. The hearing takes place in private within the prison and the Board ’ s decision is pronounced under the same conditions. The Rules themselves contain no specific provision as regards legal advice about, or legal representation at, an adjudication before a Board. Under the practice followed prior to 1981, a prisoner would not have been granted leave to seek legal advice before the hearing. Furthermore, the Court of Appeal held in Fraser v. Mudge ([1975] 3 All England Law Reports 78) that although a Board had to observe the requirements of natural justice and act fairly in disciplinary proceedings, a prisoner was not entitled to legal representation thereat. However, in its judgment of 8 November 1983 in R. v. Albany Prison Board of Visitors, ex parte Tarrant ([1984] 1 All England Law Reports 799), the Divisional Court held that although there is no absolute entitlement to such representation, a Board does have a discretion to allow it. Furthermore, the prisoner has a right to require that that discretion be exercised and that his request for representation be properly considered on its merits; if the Board fails to exercise its discretion properly, its decision must be quashed. Mr. Justice Webster added that in most, if not all, cases involving a charge of mutiny no Board of Visitors, properly directing itself, could reasonably decide not to allow legal representation. 37. In 1978, in the St. Germain case (see paragraph 39 below), the Court of Appeal had to consider, for reasons of jurisdiction, whether disciplinary proceedings before a Board of Visitors were a "criminal cause or matter", within the meaning of the relevant legislation. It answered this question in the negative. Lord Justice Waller based his decision on the fact that the charges heard by the Board were not "criminal", that is charges "of an offence against public law", and that the Board was not a court of criminal jurisdiction. Lord Justice Shaw considered that the Board ’ s proceedings possessed some of the attributes of a criminal cause or matter (for example, accusation, inquiry, adjudication and possible punitive consequences) but lacked the essential characteristic, namely a penal proceeding for the infraction of a requirement relating to the enforcement and preservation of public law and order. In determining the nature of proceedings, account also had to be taken of their context and overall objective. Although an offence under the Rules might coincide with a crime under the general law and lead to a measure corresponding to a penalty or punishment, this did not transform the Board ’ s adjudication into a criminal cause or matter. It was essentially a domestic disciplinary proceeding, which did not purport to deal with misconduct in its relation to the public law or the public interest and was designed and pursued with the limited objective of maintaining order within the confines of a prison. It would also be illogical and anomalous to regard as a criminal cause or matter proceedings arising from an offence under the Rules which did not amount to a criminal offence under the general law. However, in R v. Highpoint Prison Board of Visitors, ex parte McConkey, Mr. Justice McCullough, in his judgment of 2O September 1982 (Times Law Reports, 23 September 1982), referred to the "close similarity" between an accusation of breach of the Rules and an accusation of a criminal offence: each was followed by an adjudication and might lead to consequences of a punitive character, for example, in the former case, forfeiture of remission. Although prison disciplinary offences were offences against a private code, they were also "penal"; in principle, the relevant Rules should be construed no more harshly against a prisoner than would be appropriate were the offences criminal. Again, in the Tarrant case (see paragraph 36 in fine above) it was conceded on behalf of the Board of Visitors that the standard of proof to be applied in disciplinary adjudications was a criminal one. 3. Subsequent review of Board of Visitors ’ disciplinary proceedings (a) Internal channels 38. Under Rule 56, disciplinary awards made by a Board of Visitors may be remitted or mitigated by the Home Secretary or, subject to his directions, by the Board itself. Procedures and criteria for the restoration of forfeited remission of sentence are laid down in Circular Instruction 58/1976 issued by the Minister: basically, the prisoner must show a significant improvement indicative of a genuine change of attitude, and the power to restore is not to be used merely to modify an award which is subsequently thought excessive or open to doubt. Applications for remission or mitigation of awards are normally made in the first instance to the Board itself. Its decision may be the subject of a petition by the prisoner to the Home Secretary. Under Rule 7, every prisoner has to be provided on or shortly after his reception into prison with information in writing about, inter alia, the proper method of making petitions. In the St. Germain case (see paragraph 39 below), the members of the Court of Appeal expressed the view that a petition under Rule 56 was not to be regarded as a formal appeal; it was noted, amongst other things, that the Home Secretary was not empowered to quash the Board ’ s finding of guilt. (b) Application to the domestic courts 39. (a) The question whether the English courts have jurisdiction to review disciplinary proceedings before Boards of Visitors was considered in R. v. Hull Prison Board of Visitors, ex parte St. Germain and others. In that case, application was made for orders of certiorari to quash, on the ground of failure to observe the rules of natural justice, certain decisions imposing disciplinary awards, taken by a Board in 1976. (b) In a judgment of 6 December 1977 ([1978] 2 All England Law Reports 198), the Divisional Court held that although a Board was in the nature of a judicial body under a duty to act judicially, it was not subject to control by way of certiorari, a remedy which did not extend to private disciplinary proceedings in a closed body enjoying its own form of discipline and rules. It was stressed that a Board had an "intimate relationship" with the prison and, when adjudicating, was part of the latter ’ s disciplinary machinery. (c) Notice of appeal against this decision was served on 20 December 1977. The Court of Appeal allowed the appeal in its judgment of 3 October 1978 ([1979] 1 All England Law Reports 701). It held that there was no rule of law that the courts were to abdicate jurisdiction merely because the proceedings under review were of an internal disciplinary character. There was no binding authority as to whether certiorari would lie against disciplinary decisions of a Board of Visitors and the question had to be decided in the light of public policy. A Board ’ s disciplinary functions were separate and independent from its other functions. When hearing disciplinary charges it was not imposing summary discipline as part of the day to day administration of the prison but was instead an independent body which could only punish a prisoner after a formalised inquiry and/or hearing. In doing so it was exercising a judicial function and its decisions were therefore subject to control by the courts by certiorari in appropriate cases. However, the remedy was discretionary and relief would be granted only where there had been a failure to act fairly, having regard to all the circumstances and such unfairness had given rise to a substantial, as distinct from a trivial or merely technical, injustice. 4O. The case was then remitted to the Divisional Court which, by judgment of 15 June 1979 ([1979] 3 All England Law Reports 545), quashed certain of the decisions taken by the Hull Prison Board of Visitors. The Divisional Court observed that section 47 (2) of the Prison Act 1952 and Rule 49 (2) (see paragraph 35 above) were declaratory of the basic rule of natural justice that every party to a controversy had a right to a fair hearing; although, on the facts, this rule had not been observed as regards the quashed decisions, there was nothing in the Board ’ s procedure in general to which any objection could properly be taken. The Divisional Court pointed out that the right to a fair hearing before a Board of Visitors included the right to call evidence; the chairman ’ s power to refuse to allow a prisoner to call witnesses had to be exercised reasonably, in good faith and on proper grounds (which would not include mere administrative convenience). Further, the prisoner must also have a sufficient opportunity to deal with the evidence given against him, which might necessitate giving him the opportunity to cross-examine witnesses whose evidence was initially before the Board in hearsay form. 41. Applications for certiorari must in principle be made within a prescribed time-limit running from the date of the decision challenged: in 1976, the time-limit was six months; since 11 January 1978, it has been three months. Leave may be granted to apply out of time; this is a matter for the court ’ s discretion but experience shows that if a late application is not opposed by the Home Office, leave will not be refused. Where decisions taken by a Board of Visitors in disciplinary proceedings are quashed by a court, the charges in question may subsequently be the subject of a fresh adjudication by a differently constituted Board. B. Prisoners ’ correspondence and visits 42. The question of prisoners ’ correspondence and visits is dealt with in a number of the Rules. With a view to securing uniformity of practice throughout prison establishments, the Home Secretary also issues to prison governors management guides or directives in the form of Standing Orders ("Orders") and Circular Instructions ("Instructions"). Unless otherwise authorised, governors are required to comply with these directives, but they do not have, or purport to have, the force of law. As far as correspondence and visits are concerned, the directives are intended to serve a dual function: on the one hand, to circumscribe the discretion conferred on governors by the Rules, and, on the other, to state the manner in which the Home Secretary has decided in certain respects to exercise his own discretionary powers thereunder. Prior to 1 December 1981, the directives in question were made available to Members of both Houses of Parliament for reference but not to the public or prisoners, although the latter received, by means of cell cards, information about certain aspects of the control of correspondence and visits. 1. Position at the time of the events giving rise to the present case 43. The basic Rules on correspondence and visits, which were in force at the time of the events giving rise to the present case, included the following: "33(1) The Secretary of State may, with a view to securing discipline and good order or the prevention of crime or in the interests of any persons, impose restrictions, either generally or in a particular case, upon the communications to be permitted between a prisoner and other persons. (2) Except as provided by statute or these Rules, a prisoner shall not be permitted to communicate with any outside person, or that person with him, without the leave of the Secretary of State. (3) Except as provided by these Rules, every letter or communication to or from a prisoner may be read or examined by the governor or an officer deputed by him, and the governor may, at his discretion, stop any letter or communication on the ground that its contents are objectionable or that it is of inordinate length. (4) Every visit to a prisoner shall take place within the sight of an officer, unless the Secretary of State otherwise directs. (5) Except as provided by these Rules, every visit to a prisoner shall take place within the hearing of an officer, unless the Secretary of State otherwise directs. (6) The Secretary of State may give directions, generally or in relation to any visit or class of visits, concerning the days and times when prisoners may be visited." "34 (8) A prisoner shall not be entitled under [Rule 34]" - which regulates the quantity of correspondence and visits - "to communicate with any person in connection with any legal or other business, or with any person other than a relative or friend, except with the leave of the Secretary of State." 44. The foregoing Rules were supplemented or modified, either by Orders or Instructions or by further Rules, in a number of respects, including the following. (a) Under Rule 34 (8), as supplemented by Order 5A 23, prisoners had to seek the Home Secretary ’ s leave to correspond with or be visited by any person other than a close relation; they were, however, also normally allowed, without the necessity to seek such leave, to correspond with or be visited by other relatives or existing friends, but the governor could forbid such correspondence or visits on grounds of security or good order and discipline or in the interests of the prevention or discouragement of crime. Governors had a discretion to allow communications with certain other persons not personally known to the prisoner before he came into custody. However, it would have been unlikely that such discretion would have been exercised in favour of "category A" prisoners, such as Mr. Campbell and Father Fell; this is the security category reserved for persons who, if they escaped, would be highly dangerous to the public or the police or to the security of the State. (b) With effect from 1 January 1973, the extent of the control of correspondence relating to civil or criminal proceedings to which the prisoner is already a party was limited by Rule 37A (1), which reads: "A prisoner who is a party to any legal proceedings may correspond with his legal adviser in connection with the proceedings and unless the Governor has reason to suppose that any such correspondence contains matter not relating to the proceedings it shall not be read or stopped under Rule 33 (3) of these Rules." (c) Until 6 August 1975, inmates had to petition the Home Secretary for permission to seek advice about, or give instructions for, the institution of civil proceedings (with the exception of certain divorce cases). On that date, Instruction 45/1975 introduced changes that were subsequently reflected in Rule 37A (4), which came into operation on 26 April 1976 and reads: "Subject to any directions of the Secretary of State, a prisoner may correspond with a solicitor for the purpose of obtaining legal advice concerning any cause of action in relation to which the prisoner may become a party to civil proceedings or for the purpose of instructing the solicitor to issue such proceedings." Instruction 45/1975 - and subsequently Order 17A - further provided, inter alia, that: (i) the inmate had to have sought a solicitor ’ s advice before he would be permitted to institute proceedings; (ii) at each stage a written application, with reasons, had first to be made to the prison governor for the necessary facilities, which could take the form of a letter or a visit; they had to be granted immediately, except that, in the case of prospective civil proceedings against the Home Office (or any servant thereof) "arising out of or in connexion with" the imprisonment, the "prior ventilation rule" generally applied. The effect of the last-mentioned rule was that the prisoner would not be granted facilities to obtain legal advice, by correspondence or at a visit, about such proceedings unless and until he had raised his complaint through the normal internal channels (petition to the Home Secretary, or application to the Board of Visitors, a visiting officer of the Home Secretary or the prison governor) and been given a definitive reply, whether favourable or not. (d) Visits by legal advisers were subject to the following special Rule: "37 (1) The legal adviser of a prisoner in any legal proceedings, civil or criminal, to which the prisoner is a party shall be afforded reasonable facilities for interviewing him in connection with those proceedings, and may do so out of hearing but in the sight of an officer. (2) A prisoner ’ s legal adviser may, with the leave of the Secretary of State, interview the prisoner in connection with any other legal business in the sight and hearing of an officer." Disciplinary proceedings before a Board of Visitors were not considered by the authorities to be "legal proceedings" for the purposes of the Rules, notably Rule 37 (1) and Rule 37(A) 1. (e) There were special, less strict, provisions concerning applications to the Commission (Order 5B 22). 2. Position with effect from 1 December 1981 45. Prior to 1 December 1981, both Orders and Instructions contained, in addition to directives on the control of prisoners ’ correspondence and visits, internal rules and guidance of a general nature concerning the day to day administration of the prison. With effect from that date, the directives on correspondence and visits were substantially revised. In addition, revised Orders on those subjects have been published in their entirety, matters of a management or administrative nature which do not concern a prisoner ’ s entitlement to correspond or receive visits and were considered inappropriate for publication having been eliminated from the Orders and embodied in Instructions. The Rules themselves have not been amended, although the Government have indicated that as soon as practicable Rule 34 (8) (see paragraph 43 above) would be repealed in so far as it affected correspondence. 46. So far as is material to the present case, the earlier position is now modified in the following respects. (a) The new Orders (nos. 5B23-5B30) state that, with certain exceptions, a prisoner may correspond with any person or organisation, provided always that the regulations on the contents of correspondence and the "simultaneous ventilation rule" are observed. (b) The "simultaneous ventilation rule", set out in Order 5B34 j, has taken the place of the "prior ventilation rule" (see paragraph 44 (c) in fine above). Legal advice concerning civil proceedings in respect of prison treatment may now be obtained as soon as the prisoner has raised his complaint through the prescribed procedures; he no longer has to await the outcome of the internal inquiry. (c) Rule 37 (1) (see paragraph 44 (d) above) continues to apply to visits by a legal adviser concerning legal proceedings to which the prisoner is already a party. Under new Order 5A34, other visits by a legal adviser acting in a professional capacity are also now allowed out of the hearing of a prison officer, provided the subject to be discussed is disclosed to the governor in advance and does not offend against the restrictions on correspondence with legal advisers set out in new Order 5B34 (including the "simultaneous ventilation rule"). If the subject to be discussed is not disclosed, the visit will still be allowed but will be in the hearing of an officer. C. Obtaining of medical advice by prisoners 47. Under Rule 17, responsibility for the health of prisoners is placed on the prison medical officer; he has discretion to call in another medical practitioner. The prison authorities will not generally allow a convicted prisoner to be examined by an outside doctor (other than one called in as aforesaid) unless the prisoner is a party to legal proceedings, in which event Rule 37A (3) applies. This Rule provides: "Subject to any directions given in the particular case by the Secretary of State, a registered medical practitioner selected by or on behalf of [a prisoner who is party to any legal proceedings] shall be afforded reasonable facilities for examining him in connection with the proceedings, and may do so out of hearing but in the sight of an officer." D. Complaints concerning the control of correspondence and visits 1. Internal channels of complaint 48. An inmate who is aggrieved by a decision concerning his correspondence or visits may complain to the prison governor, the Board of Visitors or a visiting officer of the Home Secretary or he may petition the Home Secretary himself. A prisoner may ventilate his complaint through any or all of these channels and, if more than one is utilised, in such sequence as he wishes. (a) The Board of Visitors 49. As far as the Board of Visitors is concerned, it may examine the compatibility of the decision complained of with the Rules and the Home Secretary ’ s directives. It will draw the governor ’ s attention to any irregularity, or report to the Home Secretary; although its powers are advisory in character, its advice will be implemented save in exceptional circumstances. (b) Petitions to the Home Secretary 50. Inmates have the right to submit petitions to the Home Secretary about any matter, for example to seek a permission which the local prison management is not empowered to grant or has refused, or to complain of prison treatment. On a petition being made by a prisoner, complaining of a decision of the prison authorities concerning his correspondence or visits, the Home Secretary would, if he concluded that the relevant Orders had not been properly interpreted or applied by the prison authorities, issue directions to them to secure compliance. Although it is possible for him to depart from the Orders in particular cases, this is likely to occur only rarely, if at all, since their very purpose is to ensure uniformity of practice. Prior to 1 December 1981, directives concerning the submission of petitions were contained in Orders 5B l-16. It was, in particular, provided that, with certain exceptions, a prisoner could not petition if and so long as he was awaiting a reply to an earlier petition (Order 5B 12 (2)). With effect from 1 December 1981, the provisions of Order 5B 12 (2) have been relaxed by new Orders 5C9 and 5ClO. A further petition may now be submitted if a month has elapsed since the submission of the previous petition. Moreover, even though an earlier petition be outstanding, a prisoner may petition forthwith on certain specified matters, including interferences with his correspondence but not restrictions on his visits. 2. The Parliamentary Commissioner for Administration 51. Complaints concerning the control of correspondence or visits may also, on certain conditions, be raised with the Parliamentary Commissioner for Administration (the Ombudsman). However, his jurisdiction does not extend to restrictions effected pursuant to a correct exercise of a discretion conferred by the Rules or the Home Secretary ’ s directives; moreover, the Ombudsman cannot grant direct relief since he is limited to reporting the results of his investigation to a Member of Parliament, the authority concerned and, in certain circumstances, each House of Parliament (sections 10 and 12 of the Parliamentary Commissioner Act 1967). 3. Application to the domestic courts 52. The exercise by the prison authorities of their powers under the Rules to control correspondence and visits is subject to the supervisory control of the English courts by way of proceedings for judicial review. In the exercise of this jurisdiction the courts will intervene to secure compliance by the prison authorities with the Rules in so far as they confer on prisoners an entitlement to correspond or receive visits (for example, Rules 37(A) 1 and 37 (1); see paragraph 44, sub-paragraphs (b) and (d), above), and to ensure that the discretion conferred on the authorities by the Rules is not exercised arbitrarily or unreasonably, in bad faith, for an improper motive or in an ultra vires manner. The Court notes in this context that in Raymond v. Honey [1982] 1 All England Law Reports 759, Lord Wilberforce pointed out that it was a principle of English law that "a convicted prisoner, in spite of his imprisonment, retains all civil rights which are not taken away expressly or by necessary implication." PROCEEDINGS BEFORE THE COMMISSION 53. Mr. Campbell and Father Fell applied to the Commission on 4 and 31 March 1977 respectively. In their applications or in subsequent memoranda each of them: (a) alleged that he had been convicted by the Board of Visitors of disciplinary charges amounting in substance to "criminal" charges, without having been afforded a hearing complying with the requirements of Article 6 (art. 6) of the Convention; (b) contended that the delay in allowing him to obtain legal advice following the incident of 16 September 1976 involved breaches of his right of access to court, guaranteed by Article 6 (art. 6), and of his right to respect for correspondence, guaranteed by Article 8 (art. 8); (c) maintained that the refusal to allow independent medical examination involved a further infringement of his rights under Article 6 (art. 6); (d) made a number of other complaints, notably concerning his treatment during and after the aforementioned incident. On 6 May 1978, the Commission declared Mr. Campbell ’ s application admissible as regards items (a), (b) and (c) above and inadmissible as regards the remainder. By a partial decision of 9 October 1980 and a final decision of 14 and 19 March 1981, the Commission: - declared Father Fell ’ s application admissible as regards items (b) and (c) above and his additional allegations that the refusal to allow him to consult with his lawyer in confidence constituted breaches of Articles 6 and 8 (art. 6, art. 8), that the refusal to allow him to correspond with certain individuals amounted to a violation of Article 8 (art. 8) and that, in breach of Article 13 (art. 13), he had no effective remedy for his complaints; - declared Father Fell ’ s application inadmissible as regards items (a) and (d) above, on the ground, in the case of item (a), that at the time of its March 1981 decision he had failed to exhaust the domestic remedy of applying for certiorari (see paragraphs 15 and 39-41 above). In the last-mentioned decision, the Commission also ordered the joinder of the two applications in pursuance of Rule 29 of its Rules of Procedure. 54. In its report of 12 May 1982 (Article 31 of the Convention) (art. 31), the Commission expressed the opinion: - that the proceedings before the Board of Visitors in Mr. Campbell ’ s case had involved a breach of his rights under Article 6 (art. 6) (nine votes, with three abstentions); - that the delay in allowing both applicants to obtain legal advice involved breaches of Article 6 para. 1 and Article 8 (art. 6-1, art. 8) (unanimously); - that no breach of Article 6 para. 1 (art. 6-1) arose from the refusal to allow the applicants facilities for an independent medical examination (unanimously); - that the refusal to allow Father Fell to consult in private with his lawyer was in breach of Article 6 para. 1 (art. 6-1) and that it was not necessary to consider whether it also breached Article 8 (art. 8) (unanimously); - that the refusal to allow Father Fell to correspond with Sister Power and Sister Benedict constituted a violation of Article 8 (art. 8) (unanimously); - that no effective remedy was available to Father Fell in relation to his complaints under Article 8 (art. 8) and that in this respect there was a breach of Article 13 (art. 13) (unanimously). The full text of the Commission ’ s opinion and of the one dissenting opinion contained in the report is reproduced as an annex to the present judgment. FINAL SUBMISSIONS MADE TO THE COURT BY THE GOVERNMENT 55. At the hearings on 20 September 1983, the Government invited the Court to decide the case - subject to such concessions as they had made on that occasion - in the manner stated in their memorial of 17 March 1983, namely: "With regard to Article 6 (art. 6) (i) to decide and declare that Article 6 (art. 6) of the Convention does not apply to a Board of Visitors ’ inquiry into and adjudication upon the offences against discipline specified in Rule 47 of the Prison Rules 1964 (as amended) or any of them; (ii) to decide and declare that the facts found disclose no breaches arising out of the Prison Board of Visitors ’ inquiry into and adjudication upon the offences alleged against John Joseph Campbell; (iii) to decide and declare that John Joseph Campbell has failed to exhaust all domestic remedies in relation to all or any breaches arising out of the aforesaid inquiry and adjudication; (iv) to take express note in its judgment of the changes made to the law and practice in the United Kingdom relating to the control of communication between prisoners and their legal advisers since the judgment of the Court in the Golder case, and (a) in the light of such changes to decline to examine further the claims of breaches of Article 6 (art. 6) of the Convention relating thereto or alternatively (b) to decide and declare that the facts found disclose no breaches by the United Kingdom of its obligations under Article 6 (art. 6) of the Convention relating thereto other than as set forth in the report of the Commission. With regard to Article 8 (art. 8) (i) insofar as the Commission concluded that the facts found disclosed no breach by the United Kingdom of its obligations under Article 8 (art. 8) of the Convention, to confirm and uphold the Commission ’ s conclusions; (ii) insofar as the Commission ’ s findings of breaches of the Convention are not contested by the United Kingdom Government on the grounds of the changes made by the revised Standing Orders to the practice in the United Kingdom relating to prisoners ’ correspondence: (a) to decide and declare that the facts found disclose no breaches otherwise than as set forth in the report of the Commission; (b) to take express note in its judgment of the changes made by the revised Standing Orders as remedying the breaches so found by the Commission. With regard to Article 13 (art. 13) To decide and declare that the facts found would not disclose a breach by the United Kingdom of its obligations under Article 13 (art. 13) of the Convention after the coming into effect of the revised Standing Orders relating to prisoners ’ correspondence and visits." AS TO THE LAW I. PRELIMINARY PLEAS A. Mr. Campbell ’ s alleged failure to exhaust domestic remedies as regards the Board of Visitors ’ proceedings 56. In their memorial of 17 March 1983 to the Court, the Government submitted that by failing to apply for judicial review, seeking an order of certiorari (see paragraphs 15 and 39-41 above), of the Board of Visitors ’ adjudication in his case, Mr. Campbell had not exhausted all his domestic remedies and that for that reason his complaints concerning those proceedings ought not to be given consideration. 57. The Court will take cognisance of preliminary pleas of this kind if and in so far as the respondent State may already have raised them before the Commission to the extent that their character and the circumstances permitted; this should normally be done at the stage of the initial examination of admissibility. If this condition is not fulfilled, the Government are estopped from raising the plea before the Court (see, inter alia, the Artico judgment of 13 May 1980, Series A no. 37, pp. 12 and 13, paras. 24 and 27). 1. Estoppel 58. The Government ’ s observations on the admissibility of Mr. Campbell ’ s application were filed with the Commission on 20 December 1977; they contained no reference to the question of the exhaustion of domestic remedies as regards the Board ’ s proceedings. It was only in their observations on the merits ( 13 December 1978 ) that the Government requested the Commission to reject, under Articles 26 and 29 (art. 26, art. 29) of the Convention, the complaints concerning those proceedings, on the ground that no application for certiorari had been made. The Commission, which had already, on 6 May 1978, declared these complaints admissible, found, on 14 and 19 March 1981, that there was no basis for the application of Article 29 (art. 29), that provision requiring unanimity. 59. The Court notes that on 6 December 1977 it had been held by the Divisional Court in the St. Germain case that certiorari did not lie in respect of Board of Visitors ’ proceedings (see paragraph 39 (b) above). It would therefore have been difficult for the Government, a fortnight later, to plead before the Commission - contrary to the argument put to the Divisional Court by counsel for the Hull Prison Board of Visitors, who was instructed by the Treasury Solicitor - that this remedy was available. In contrast to the view expressed by the Commission ’ s Delegate, the Court also considers that since the authorities had just succeeded in the domestic action, the Government could scarcely have maintained that this was an uncertain or unresolved issue in English law and that Mr. Campbell should therefore test the matter in the courts. Notice of appeal in the St. Germain case was served on 20 December 1977 but the matter was not finally resolved until 3 October 1978, when the Court of Appeal reversed the Divisional Court ’ s decision (see paragraph 39 (c) above). It was clearly the 1978 judgment that prompted the Government to supplement their initial arguments and, in the particular circumstances, the Court does not consider that they could reasonably have been expected to raise the plea of non-exhaustion at an earlier stage (see the above-mentioned Artico judgment, ibid., p. 13, para. 27, third sub-paragraph). There is accordingly no estoppel. 2. Whether the plea is well-founded 60. The only remedies which Article 26 (art. 26) of the Convention requires to be exercised are those which relate to the breaches alleged and are at the same time available and sufficient (see, inter alia, the Van Oosterwijck judgment of 6 November 1980, Series A no. 40, p. 13, para. 27). As regards Mr. Campbell, the Commission expressed no opinion as to whether the remedy of certiorari fell within this category. 61. The existence of a remedy must be sufficiently certain before there can be an obligation to exhaust it (see the De Wilde, Ooms and Versyp judgment of 18 June 1971, Series A no. 12, p. 34, para. 62, the Deweer judgment of 27 February 1980, Series A no. 35, p. 18, para. 32, and, mutatis mutandis, the Van Droogenbroeck judgment of 24 June 1982, Series A no. 50, p. 30, para. 54). At the time of Mr. Campbell ’ s application to the Commission (4 March 1977), there was nothing to indicate that certiorari lay in respect of a Board of Visitors ’ adjudication; as the Court of Appeal observed in the St. Germain case, there was no binding authority on this point (see paragraph 39 (c) above). The position changed, however, with the Court of Appeal ’ s judgment of 3 October 1978 in that case, which established that prisoners could seek judicial review of such disciplinary proceedings. It has nevertheless to be remembered that in Mr. Campbell ’ s case the prescribed time-limit within which certiorari must in principle be applied for had long expired (see paragraph 41 above and the above-mentioned De Wilde, Ooms and Versyp judgment, Series A no. 12, pp. 34-35, para. 62). It is true that leave may be granted to apply out of time and, indeed, the Government submitted that if Mr. Campbell had applied for leave soon after the Divisional Court ’ s second judgment in the St. Germain case (15 June 1979), this would not have been refused; however, they conceded that it was predictable that he would not now obtain leave because his delay would be regarded as inordinate and inexcusable (see paragraphs 15, 40 and 41 above). The availability of the remedy has to be seen in the light of these considerations. 62. As to whether the remedy would have been effective, the Government conceded at the hearings before the Court that it would not have been in respect of a substantial number of the applicant ’ s complaints, namely his inability to obtain legal assistance before the Board ’ s hearing, the fact that the Board neither conducted its proceedings in public nor pronounced its decision publicly and the allegation that the Board was not "independent". They took the same view as regards the question of legal representation at the Board ’ s hearing, subject, however, to the outcome of the Tarrant case. The Court notes that in that case it was established, contrary to the Government ’ s opinion, that an application for judicial review seeking an order of certiorari could provide an effective remedy against an unreasonable decision not to allow legal representation (see paragraph 36 in fine above). Nevertheless, although the law has now been clarified in that sense, the fact remains, as was admitted by the Government that Mr. Campbell could no longer expect to obtain leave to pursue this remedy in his case. 63. It is true that there are Mr. Campbell ’ s other complaints, namely his allegations that the Board was not "impartial" and had not afforded him a "fair" hearing, that the presumption of innocence had been infringed, that he had not been sufficiently informed of the accusations against him nor had adequate time to prepare his defence, and that he had been deprived of rights concerning witnesses. In respect of these complaints, the Government submitted that they could and should have been made the subject of proceedings for judicial review after 3 October 1978. However, when the existence of a remedy by way of an application for judicial review had been established by the Court of Appeal ’ s judgment in the St. Germain case and when in the Government ’ s submission it was still available to Mr. Campbell, the Commission decided not to reject his application on this ground. In this situation Mr. Campbell was, in the opinion of the Court, justified in relying on the Commission ’ s decision for the purpose of pursuing his case under the Convention and in not applying to the domestic courts for judicial review of the Board of Visitors ’ proceedings. Furthermore, the Government concede that recourse to that remedy is predictably no longer available to him. Consequently, the Court considers that it would be unjust now to find these complaints inadmissible for failure to exhaust domestic remedies. B. The admissibility of Father Fell ’ s complaints as regards the Board of Visitors ’ proceedings 64. Father Fell ’ s complaints regarding the Board of Visitors ’ adjudication in his case were declared inadmissible by the Commission on the ground that, at the time of its decision (14 and 19 March 1981 ), he had failed to exhaust the domestic remedy of applying for certiorari (see paragraph 53 above). In his memorial to the Court, Father Fell, after pointing out that he had since made such an application, albeit unsuccessfully (see paragraph 15 above), submitted that the aforesaid complaints were now admissible. 65. According to the settled case-law of the Court, decisions by the Commission to reject applications which it considers to be inadmissible are without appeal and the Court ’ s jurisdiction in contentious matters is limited to applications which have been accepted by the Commission (see, inter alia, the above-mentioned De Wilde, Ooms and Versyp judgment, Series A no. 12, p. 30, para. 51, the Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, p. 63, para. 157, and the Foti and Others judgment of 10 December 1982, Series A no. 56, p. 14, paras. 40-41). It follows that the Court has no jurisdiction to examine Father Fell ’ s submission. II. THE BOARD OF VISITORS ’ PROCEEDINGS IN THE CASE OF MR. CAMPBELL 66. Mr. Campbell alleged that he had been convicted by the Board of Visitors of disciplinary charges amounting in substance to "criminal" charges, without having been afforded a hearing complying with the requirements of Article 6 (art. 6) of the Convention, which provides certain guarantees "in the determination of ... civil rights and obligations or of any criminal charge". A. The applicability of Article 6 (art. 6) 1. The existence of a "criminal charge" 67. The Commission came to the conclusion that the adjudication by the Board of Visitors in Mr. Campbell ’ s case did involve the determination of "criminal charges" and that Article 6 (art. 6) was therefore applicable. As their principal submission, the Government contested this view. 68. The Court was confronted with a similar issue in the case of Engel and Others, which was cited in argument by those appearing before it in the present proceedings. In its judgment of 8 June 1976 in that case (Series A no. 22, pp. 33-35, paras. 80-82), the Court, after drawing attention to the "autonomy" of the notion of "criminal charge" as conceived of under Article 6 (art. 6), set forth the following principles which it re-affirmed in its Öztürk judgment of 21 February 1984 (Series A no. 73, pp. 17-18, paras. 48-50). (a) The Convention is not opposed to the Contracting States creating or maintaining a distinction between criminal law and disciplinary law and drawing the dividing line, but it does not follow that the classification thus made is decisive for the purposes of the Convention. (b) If the Contracting States were able at their discretion, by classifying an offence as disciplinary instead of criminal, to exclude the operation of the fundamental clauses of Articles 6 and 7 (art. 6, art. 7), the application of these provisions would be subordinated to their sovereign will. A latitude extending thus far might lead to results incompatible with the object and purpose of the Convention. 69. The Court was careful in the Engel and Others judgment to state that, as regards the dividing line between the "criminal" and the "disciplinary", it was confining its attention to the sphere with which the case was concerned, namely military service. It is well aware that in the prison context there are practical reasons and reasons of policy for establishing a special disciplinary regime, for example security considerations and the interests of public order, the need to deal with misconduct by inmates as expeditiously as possible, the availability of tailor-made sanctions which may not be at the disposal of the ordinary courts and the desire of the prison authorities to retain ultimate responsibility for discipline within their establishments. However, the guarantee of a fair hearing, which is the aim of Article 6 (art. 6), is one of the fundamental principles of any democratic society, within the meaning of the Convention (see the Golder judgment of 21 February 1975, Series A no. 18, p. 18, para. 36). As the Golder judgment shows, justice cannot stop at the prison gate and there is, in appropriate cases, no warrant for depriving inmates of the safeguards of Article 6 (art. 6). It follows that the principles set forth in the Engel and Others judgment are also relevant, mutatis mutandis, in a custodial setting and that the reasons mentioned above cannot override the necessity of maintaining, there too, a dividing line between the "criminal" and the "disciplinary" that is consistent with the object and purpose of Article 6 (art. 6). It therefore has to be determined whether the proceedings against Mr. Campbell have to be regarded as coming within the "criminal" sphere for Convention purposes. To this end, the Court considers it right to apply, making due allowance for the different context, the criteria stated in that judgment. 70. The first matter to be ascertained is whether or not the text defining the offences in issue belongs, according to the domestic legal system, to criminal law, disciplinary law or both concurrently (see the above-mentioned Engel and Others judgment, Series A no. 22, pp. 34-35, para. 82). It is clear that, in English law, the offences with which Mr. Campbell was charged belong to disciplinary law: Rule 47 states that conduct of this kind on the part of a prisoner shall be "an offence against discipline" and the Rules go on to provide how it shall be dealt with under the special prison disciplinary regime (see paragraphs 27-31 above). Confirmation that domestic law regards Board of Visitors ’ adjudications as falling outside the criminal sphere is to be found in the Court of Appeal ’ s decision in the St. Germain case that they are not a "criminal cause or matter" (see paragraph 37 above). Lord Justice Shaw there expressed the view that such an adjudication was essentially a domestic disciplinary proceeding, which did not purport to deal with misconduct in its relation to the public law or the public interest and was designed and pursued with the limited objective of maintaining order within the confines of the prison. Indeed, the Court notes that it is for this precise purpose, amongst others, that the Home Secretary is empowered by section 47 (1) of the Prison Act 1952 to make rules (see paragraph 26 above). Nevertheless, the Court also notes that certain parallels between Board of Visitors ’ proceedings and criminal proceedings were drawn in the McConkey and the Tarrant cases (see paragraph 37 in fine above). 71. In any event, the indications so afforded by the national law have only a relative value; the very nature of the offence is a factor of greater import (see the above-mentioned Engel and Others judgment, ibid., p. 35, para. 82). In this respect, it has to be borne in mind that misconduct by a prisoner may take different forms; certain acts are clearly no more than a question of internal discipline, whereas others cannot be seen in the same light. Firstly, some matters may be more serious than others; in fact, the Rules grade offences, classifying those committed by Mr. Campbell as "especially grave" (see paragraph 27 above). Secondly, the illegality of some acts may not turn on the fact that they were committed in prison: certain conduct which constitutes an offence under the Rules may also amount to an offence under the criminal law. Thus, doing gross personal violence to a prison officer may correspond to the crime of "assault occasioning actual bodily harm" and, although mutiny and incitement to mutiny are not as such offences under the general criminal law, the underlying facts may found a criminal charge of conspiracy (see paragraph 30 above). It also has to be remembered that, theoretically at least, there is nothing to prevent conduct of this kind being the subject of both criminal and disciplinary proceedings (ibid.). The Court considers that these factors, whilst not of themselves sufficient to lead to the conclusion that the offences with which the applicant was charged have to be regarded as "criminal" for Convention purposes, do give them a certain colouring which does not entirely coincide with that of a purely disciplinary matter. 72. It is therefore necessary to turn to the last criterion stated in the above-mentioned Engel and Others judgment (ibid., p. 35, para. 82) and in the above-mentioned Öztürk judgment (Series A no. 73, p. 18, para. 50), namely the nature and degree of severity of the penalty that Mr. Campbell risked incurring. The maximum penalties which could have been imposed on him included forfeiture of all of the remission of sentence available to him at the time of the Board ’ s award (slightly less than three years), forfeiture of certain privileges for an unlimited time and, for each offence, exclusion from associated work, stoppage of earnings and cellular confinement for a maximum of 56 days; he was in fact awarded a total of 570 days ’ loss of remission and subjected to the other penalties mentioned for a total of 91 days (see paragraphs 14 and 28 above). There was considerable discussion, both in the St. Germain case and before the Convention institutions, as to the nature of remission of sentence and its forfeiture. Under English law, remission is a discretionary measure (see paragraph 29 above). It is regarded by the English courts as being technically a privilege rather than a right, but the Court of Appeal did observe in the St. Germain case that "although in form remission of sentence may have been the grant of a privilege, loss of remission was in fact a punishment or deprivation affecting the rights of the subject". The Court, for its part, does not find that the distinction between privilege and right is of great assistance to it for the present purposes; what is more important is that the practice of granting remission - whereby a prisoner will be set free on the estimated date for release given to him at the outset of his sentence, unless remission has been forfeited in disciplinary proceedings (see paragraph 29 above) - creates in him a legitimate expectation that he will recover his liberty before the end of his term of imprisonment. Forfeiture of remission thus has the effect of causing the detention to continue beyond the period corresponding to that expectation. Confirmation of the foregoing is found in the following passage from the judgment of Lord Justice Waller in the St. Germain case: "... it was common ground ... that a prisoner is credited with his full remission when he arrives in prison after sentence and he is told then his earliest date of release. Whether it is a right or a privilege a prisoner can expect to be released on that date unless he is ordered to forfeit some remission. Lord Reid quoted deprivation ‘ of rights or privileges ’ as being of equal importance, and I respectfully agree with him. Whether remission is a right or a privilege is in my opinion immaterial. It is only necessary to consider the case of [X], who was ordered to forfeit 720 days. As a result he would have to serve nearly two years beyond his earliest date of release. It was a very substantial privilege which he had lost." ([1979] 1 All England Law Reports, pp. 723j-724b) In its above-mentioned Engel and Others judgment (ibid., p. 35, para. 82), the Court stated that deprivation of liberty liable to be imposed as a punishment was, in general, a penalty that belonged to the "criminal" sphere. It is true that in the present case the legal basis for the detention remained, even after the Board ’ s award, the original sentence of imprisonment and that nothing was added thereto (see paragraph 29 above). However, the Court is of the opinion that the forfeiture of remission which Mr. Campbell risked incurring and the forfeiture actually awarded involved such serious consequences as regards the length of his detention that these penalties have to be regarded, for Convention purposes, as "criminal". By causing detention to continue for substantially longer than would otherwise have been the case, the sanction came close to, even if it did not technically constitute, deprivation of liberty and the object and purpose of the Convention require that the imposition of a measure of such gravity should be accompanied by the guarantees of Article 6 (art. 6). This conclusion is not altered by the fact that a considerable number of days of remission were subsequently restored to the applicant (see paragraph 16 above). 73. Taking into account, therefore, both the "especially grave" character of the offences with which Mr. Campbell was charged (see paragraph 27 above) and the nature and severity of the penalty that he risked incurring - and did in fact incur -, the Court finds that Article 6 (art. 6) is applicable to the Board of Visitors ’ adjudication in his case. It is accordingly not necessary to consider the sanctions, other than forfeiture of remission, which could have been or were imposed on him. 2. The existence of a "determination" of "civil rights" 74. Having regard to the finding in the preceding paragraph, there is also no need to examine whether the aforesaid adjudication involved a "determination" of "civil rights". Like the Commission, the Court considers this question to be devoid of interest for the decision in the particular case (see the above-mentioned Deweer judgment, Series A no. 35, p. 24, para. 47). B. Compliance with Article 6 (art. 6) 75. Mr. Campbell submitted that before the Board of Visitors he did not receive a "fair hearing" complying with paragraphs 1 (art. 6-1) and 3 (a) to (d) of Article 6 (art. 6-3-a, art. 6-3-b, art. 6-3-c, art. 6-3-d). He also contended that the presumption of innocence (Article 6 para. 2) (art. 6-2) had been infringed. 1. Article 6 para. 1 (art. 6-1) 76. Article 6 para. 1 (art. 6-1) of the Convention reads as follows: "In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice." It was not disputed in the present case that a Board of Visitors, when carrying out its adjudicatory tasks, is a "tribunal established by law". It is, in fact, clear that the relevant English legislation confers on Boards a power of binding decision in the area in question and the dicta in the St. Germain case show that this is a judicial function (see paragraphs 38 and 39 above). Again, the word "tribunal" in Article 6 para. 1 (art. 6-1) is not necessarily to be understood as signifying a court of law of the classic kind, integrated within the standard judicial machinery of the country (see, mutatis mutandis, the X v. the United Kingdom judgment of 5 November 1981, Series A no. 46, p. 23, para. 53). (a) "Independent" tribunal 77. Mr. Campbell alleged that the Board of Visitors which heard his case was not an "independent" tribunal, within the meaning of Article 6 para. 1 (art. 6-1). He contended that Boards were mere "cyphers", were not seen by prisoners to be independent and were, in practice, an arm of the executive: as regards many of their functions, they were under the control of the prison authorities and had to accept the Home Secretary ’ s directions. In particular, it was submitted that they were not independent in exercising their adjudicatory role. The Commission, whilst recognising that Boards were under a legal obligation to act independently and impartially, stated that this was not of itself sufficient: to be truly "independent" the body concerned must be independent of the executive in its functions and as an institution, such independence ensuring, notably, that justice is seen to be done. In the Commission ’ s view, a Board did not possess the necessary institutional independence: firstly, its members were appointed for limited periods by the Home Secretary and did not appear to be irremovable; secondly, although a Board was not part of the administration, its other functions were such as to bring it into day to day contact with the officials of the prison in such a way as to identify it with the management of the prison. This conclusion was contested by the Government. They maintained, inter alia, that a Board was not part of the management structure of the prison: it was independent of the prison administration locally and nationally and, in discharging its administrative role, did not act on behalf of the executive. 78. In determining whether a body can be considered to be "independent" - notably of the executive and of the parties to the case (see, inter alia, the Le Compte, Van Leuven and De Meyere judgment of 23 June 1981, Series A no. 43, p. 24, para. 55) -, the Court has had regard to the manner of appointment of its members and the duration of their term of office (ibid., pp. 24-25, para. 57), the existence of guarantees against outside pressures (see the Piersack judgment of 1 October 1982, Series A no. 53, p. 13, para. 27) and the question whether the body presents an appearance of independence (see the Delcourt judgment of 17 January 1970, Series A no. 11, p. 17, para. 31). The factors which were relied on in the present case as indicative of the Board ’ s lack of "independence" will be considered in turn. 79. Members of Boards are appointed by the Home Secretary, who is himself responsible for the administration of prisons in England and Wales (see paragraphs 26 and 32 above). The Court does not consider that this establishes that the members are not independent of the executive: to hold otherwise would mean that judges appointed by or on the advice of a Minister having responsibilities in the field of the administration of the courts were also not "independent". Moreover, although it is true that the Home Office may issue Boards with guidelines as to the performance of their functions (see paragraph 35 above), they are not subject to its instructions in their adjudicatory role. 80. Members of Boards hold office for a term of three years or such less period as the Home Secretary may appoint (see paragraph 32 above). The term of office is admittedly relatively short but the Court notes that there is a very understandable reason: the members are unpaid (ibid.) and it might well prove difficult to find individuals willing and suitable to undertake the onerous and important tasks involved if the period were longer. The Court notes that the Rules contain neither any regulation governing the removal of members of a Board nor any guarantee for their irremovability. Although it appears that the Home Secretary could require the resignation of a member, this would be done only in the most exceptional circumstances and the existence of this possibility cannot be regarded as threatening in any respect the independence of the members of a Board in the performance of their judicial function. It is true that the irremovability of judges by the executive during their term of office must in general be considered as a corollary of their independence and thus included in the guarantees of Article 6 para. 1 (art. 6-1). However, the absence of a formal recognition of this irremovability in the law does not in itself imply lack of independence provided that it is recognised in fact and that the other necessary guarantees are present (see the above-mentioned Engel and Others judgment, Series A no. 22, pp. 27-28, para. 68). 81. There remains the question of the Board ’ s independence having regard to the fact that it has both adjudicatory and supervisory roles (see paragraph 33 above). In that latter role, a Board is, as the Government pointed out, intended to exercise an independent oversight of the administration of the prison. In the nature of things, supervision must involve a Board in frequent contacts with the prison officials and just as much with the inmates themselves; yet this in no way alters the fact that its function, even when discharging its administrative duties, is to "hold the ring" between the parties concerned, independently of both of them. The impression which prisoners may have that Boards are closely associated with the executive and the prison administration is a factor of greater weight, particularly bearing in mind the importance in the context of Article 6 (art. 6) of the maxim "justice must not only be done: it must also be seen to be done". However, the existence of such sentiments on the part of inmates, which is probably unavoidable in a custodial setting, is not sufficient to establish a lack of "independence". This requirement of Article 6 (art. 6) would not be satisfied if prisoners were reasonably entitled, on account of the frequent contacts between a Board and the authorities, to think that the former was dependent on the latter (see, mutatis mutandis, the above-mentioned Piersack judgment, Series A no. 53, p. 15, para. 30 in fine); however, the Court does not consider that the mere fact of these contacts, which exist also with the prisoners themselves, could justify such an impression. 82. In the light of the foregoing, the Court sees no reason to conclude that the Board in question was not "independent", within the meaning of Article 6 (art. 6). (b) "Impartial" tribunal 83. Mr. Campbell further contended that the Board of Visitors which heard his case was not an "impartial" tribunal. The Government contested this allegation. The Commission expressed no specific opinion thereon, although it took care to point out that the conclusions in its report were not to be taken as implying a finding of bias or anything similar on the part of the Board. 84. The personal impartiality of members of a body covered by Article 6 (art. 6) is to be presumed until there is proof to the contrary (see the above-mentioned Le Compte, Van Leuven and De Meyere judgment, Series A no. 43, p. 25, para. 58). In the present case, the applicant has adduced no evidence to give the Court any cause for doubt on this score. 85. However, it is not possible to confine oneself to a purely subjective test: in this area, appearances may be of a certain importance and account must be taken of questions of internal organisation (see the above-mentioned Piersack judgment, Series A no. 53, pp. 14-15, para. 30). Prior to 6 October 1976, the Albany Prison Board of Visitors played no role whatsoever in the disciplinary proceedings against the applicant; when it sat on that date, it came fresh to his case (see paragraphs 12-14 above). The Court, therefore, perceives nothing in the actual organisation of the adjudication that would reflect adversely on the Board ’ s objective "impartiality". There remains the fact that Mr. Campbell might not have seen the Board as being totally free from bias. However, for reasons similar to those given in paragraph 81 above, the Court does not consider that, in the particular context, this suffices to establish that this requirement of Article 6 (art. 6) was not satisfied. (c) "Public hearing" 86. The applicant complained of the fact that the adjudication by the Board of Visitors in his case had not been conducted in public, although he admitted that for him this was a marginal point. The Commission considered that there had been a failure to comply with Article 6 (art. 6) in this respect. The Government submitted that the practice whereby a Board ’ s proceedings were always held in private (see paragraph 36 above) was legitimate: they relied on the entitlement under Article 6 (art. 6) to exclude press and public from a trial "in the interests of ... public order or national security in a democratic society", "where ... the protection of the private life of the parties so require[s]" or, alternatively, because there were "special circumstances where publicity would prejudice the interests of justice". Security problems, the possible propagation of malicious allegations by a prisoner and the latter ’ s own wishes for privacy were cited in support of this submission. 87. It is true that ordinary criminal proceedings - which may well concern dangerous individuals or necessitate the production of a prisoner before the court - nearly always take place in public, notwithstanding the attendant security problems, the possible propagation of malicious allegations and the wishes of the accused. However, the Court cannot disregard the factors cited by the Government, notably the considerations of public order and the security problems that would be involved if prison disciplinary proceedings were conducted in public. Such a course would undoubtedly occasion difficulties of greater magnitude than those that arise in ordinary criminal proceedings. A Board ’ s adjudications are, as befits the character of disciplinary proceedings of this kind, habitually held within the prison precincts and the difficulties over admitting the public to those precincts are obvious. If they were held outside, similar problems would arise as regards the prisoner ’ s transportation to and attendance at the hearing. To require that disciplinary proceedings concerning convicted prisoners should be held in public would impose a disproportionate burden on the authorities of the State. 88. The Court therefore accepts that there were sufficient reasons of public order and security justifying the exclusion of the press and public from the proceedings against Mr. Campbell. There was accordingly no violation of Article 6 para. 1 (art. 6-1) in this respect. (d) Public pronouncement of the decision 89. Again as no more than a marginal point, the applicant complained of the fact that the Board of Visitors had not pronounced publicly its decision in his case. The Commission considered that this also constituted a failure to comply with Article 6 (art. 6). The Government relied in this context too on problems of security and public order; they further submitted that, if it was considered that the power to exclude the public applied only to the trial as distinct from pronouncement of the judgment, this particular requirement of Article 6 (art. 6) should be read as subject to the implied limitation that members of the public could legitimately be excluded in those cases in which disciplinary offences by prisoners were adjudicated upon. 90. It is true that the Court has recognised that to a certain extent the right of access to the courts secured by Article 6 (art. 6) may be subject to limitations permitted by implication (see the above-mentioned Golder judgment, Series A no. 18, pp. 18-19, para. 38). However, that recognition resulted from the fact that the right in question was inherent in the first sentence of Article 6 para. 1 (art. 6-1) but was not defined therein. Again, unlike the first sentence, the second sentence does already contain a detailed list of express exceptions. Bearing in mind the terms of Article 17 (art. 17) and the importance of the principle of publication (see, inter alia, the Sutter judgment of 22 February 1984, Series A no. 74, p. 12, para. 26), the Court does not consider that that principle may be regarded as subject to an implied limitation as suggested by the Government. 91. The Court has said in other cases that it does not feel bound to adopt a literal interpretation of the words "pronounced publicly": in each case the form of publication given to the "judgment" under the domestic law of the respondent State must be assessed in the light of the special features of the proceedings in question and by reference to the object pursued by Article 6 para. 1 (art. 6-1) in this context, namely to ensure scrutiny of the judiciary by the public with a view to safeguarding the right to a fair trial (see the Pretto and Others judgment of 8 December 1983, Series A no. 71, pp. 11-13, paras. 21 and 26-27, and the above-mentioned Sutter judgment, Series A no. 74, pp. 12 and 14, paras. 26 and 33). 92. However, in the present case it does not appear that any steps were taken to make public the Board of Visitors ’ decision. There has accordingly been a violation of Article 6 para. 1 (art. 6-1) on this point. 2. Article 6 para. 2 (art. 6-2) 93. Mr. Campbell claimed that during the course of the Board ’ s adjudication there had been a violation of paragraph 2 of Article 6 (art. 6-2), which reads as follows: "Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law." The Government contested this allegation. The Commission expressed no specific conclusion thereon. 94. The Court notes that when Mr. Campbell failed to attend the Board ’ s hearing, pleas of "not guilty" to both charges were entered on his behalf (see paragraph 14 above). He has adduced no evidence whatsoever to establish that the Board proceeded otherwise than on the basis of those pleas. His claim must therefore be rejected. 3. Article 6 para. 3 (a) (art. 6-3-a) 95. Mr. Campbell maintained that he had not been adequately informed of the nature of the accusation against him and that there had accordingly been a breach of sub-paragraph (a) of Article 6 para. 3 (art. 6-3-a), which entitles everyone charged with a criminal offence "to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him". The Government contested this allegation. The Commission expressed no specific conclusion thereon. 96. The Court notes that, prior to both the Governor ’ s and the Board ’ s hearing, the applicant had received "notices of report" setting out the charges against him; he had also been visited by the chairman of the Board before it sat (see paragraph 13 above). The main thrust of Mr. Campbell ’ s argument appears to be that the offence of "mutiny" is a complex concept, especially in a prison context, and that he had not been sufficiently informed, or was not in a position to understand, precisely what was meant by this term or what defences might be available to him. He could, however, very well have obtained further information had he appeared at the Governor ’ s or the Board ’ s hearing; and it has to be remembered that his failure to attend on the latter occasion was, so the Commission found (see paragraph 13 in fine above), a matter within his own responsibility. In all the circumstances, the Court does not consider that a breach of Article 6 para. 3 (a) (art. 6-3-a) occurred. 4. Article 6 para. 3, sub-paragraphs (b) and (c) (art. 6-3-b, art. 6-3-c) 97. The applicant submitted that in connection with the Board ’ s adjudication he had been the victim of a violation of sub-paragraphs (b) and (c) of Article 6 para. 3 (art. 6-3-b, art. 6-3-c), which entitle everyone charged with a criminal offence "to have adequate time and facilities for the preparation of his defence" and "to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require". He stressed that, in view of the nature of the charges against him, he should have been able to obtain legal advice and assistance. In its report, the Commission considered that there had been a failure to comply with the Convention ’ s requirements, in that Mr. Campbell was not afforded the opportunity to obtain legal advice and assistance before, or legal representation at, the Board ’ s proceedings; at the hearings before the Court, the Delegate added that, in view of the Commission ’ s opinion that the absence of a right to any legal assistance involved a breach of sub-paragraph (c) (art. 6-3-c), it was unnecessary to consider that aspect of the case further under sub-paragraph (b) (art. 6-3-b). The Government accepted that, under the law in force at the time (see paragraphs 13 and 36 above), the applicant had no right to legal representation at the Board ’ s hearing; they also conceded that had he requested legal assistance beforehand, this too would have been refused under the practice then followed (ibid.). 98. Mr. Campbell was informed of the charges against him on 1 October 1976, five days before the Board sat (see paragraph 13 above). He also received "notices of report", those relative to the Board ’ s adjudication having been given to him on the day before it met; the notices drew attention to the fact that he could reply to the charges in writing (ibid.). The Court considers that in all the circumstances the applicant was left with "adequate time" to prepare his defence; it notes that he apparently did not seek an adjournment of the hearing (ibid.). 99. As regards sub-paragraph (c) of Article 6 para. 3 (art. 6-3-c), it is true that Mr. Campbell elected not to attend the Board ’ s hearing, but the Convention requires that a "person charged with a criminal offence who does not wish to defend himself in person must be able to have recourse to legal assistance of his own choosing" (see the Pakelli judgment of 25 April 1983, Series A no. 64, p. 15, para. 31). Moreover, a lawyer could scarcely "assist" his client - in terms of sub-paragraph (c) (art. 6-3-c) - unless there had been some previous consultation between them. This latter consideration leads the Court to the conclusion that the "facilities" contemplated by sub-paragraph (b) (art. 6-3-b) were not afforded. Accordingly, there was a breach of sub-paragraphs (b) and (c) of Article 6 para. 3 (art. 6-3-b, art. 6-3-c). 5. Article 6 para. 3 (d) (art. 6-3-d) 100. The applicant also contended that as regards the Board ’ s adjudication he had been the victim of a violation of sub-paragraph (d) of Article 6 para. 3 (art. 6-3-d), which entitles everyone charged with a criminal offence "to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him". The Government contested this allegation. The Commission expressed no specific conclusion thereon. 101. Mr. Campbell has furnished no details in support of this claim. In addition, it can be seen from the Divisional Court ’ s second judgment in the St. Germain case (see paragraph 40 above) that English law recognises that a prisoner appearing before a Board of Visitors does have definite rights in the matter of witnesses. Moreover and above all, this complaint has to be seen in the light of the fact that the applicant declined to attend the adjudication: what might have transpired had he been present is a matter of pure conjecture on which the Court cannot embark. In these circumstances, no violation of sub-paragraph (d) of Article 6 para. 3 (art. 6-3-d) has been established. 6. Conclusions 102. To sum up, the Court has found that there was a failure to comply with the requirements of Article 6 (art. 6), in that: - the Board of Visitors did not pronounce its decision publicly; - Mr. Campbell was not entitled to obtain legal assistance prior to the Board ’ s hearing or legal representation thereat. There remains a more general allegation made by the applicant, namely that he did not receive a "fair" hearing by the Board. His submission that Boards do not make serious attempts to investigate charges referred to them can be rejected at the outset, for he has furnished no data to contradict the Jellicoe committee ’ s finding that Boards take their duties of adjudication very seriously (see paragraph 33 above). Secondly, leaving aside the specific complaints with which the Court has dealt above, Mr. Campbell has adduced no evidence to establish any unfairness or miscarriage of justice, whether as regards the actual conduct of the proceedings, the assessment of the evidence, the finding of guilt, the selection of the penalties or otherwise. Having particular regard to the fact that he was entitled but declined to attend the hearing, the Court finds that this allegation is not substantiated. In reaching its conclusions on this part of the case, the Court has not been unmindful of the developments in English law in the matter of certiorari, as evidenced by the decisions in the St. Germain case (see paragraphs 39-40 above), and the recent changes as regards the possibility for a prisoner appearing before a Board of Visitors to obtain legal representation or assistance (see paragraphs 36 and 46 above). Neither has it overlooked the fact that, under the current practice (see paragraph 30 above), a criminal court rather than a Board of Visitors may be called upon to deal with misconduct which involves substantial violence or is committed by a prisoner having only a small part of his sentence remaining to be served. III. THE APPLICANTS ’ ACCESS TO LEGAL ADVICE IN CONNECTION WITH THEIR PERSONAL-INJURIES CLAIM A. Preliminary 103. It is convenient to deal first of all with certain pleas which the Government based on the modifications made to English law and practice since the time of the events giving rise to the present proceedings (see paragraphs 42-52 above). These pleas related not only to the applicants ’ access to legal advice in connection with their personal-injuries claim but also to the conditions for visits by a lawyer to Father Fell, to the restrictions on the latter ’ s personal correspondence and to the alleged violation of Article 13 (art. 13) of the Convention (see sections IV, VI and VII below). The Government requested the Court: - in the context of Article 6 (art. 6), to take express note in its judgment of the changes made as regards the control of communication between prisoners and their legal advisers; - to take note of the changes made by the revised Standing Orders as "remedying the breaches" of Article 8 (art. 8) found by the Commission; and - to declare that the facts of the case would not disclose a breach of Article 13 (art. 13) after the coming into effect of the revised Orders. 104. The Court examined analogous pleas by the United Kingdom Government in its Silver and Others judgment of 25 March 1983 (Series A no. 61, p. 31, para. 79); it sees no cause on the present occasion to depart from the ruling which it then gave. The Court therefore holds that it cannot examine the compatibility of the modified law and practice with the Convention; however, it notes that, in particular with effect from December 1981, substantial changes have been made in this area by the United Kingdom with a view to ensuring the observance of the engagements undertaken by it in the Convention. B. Article 6 para. 1 (art. 6-1) 105. The applicants submitted that the delay in granting them permission to seek legal advice in connection with a civil action claiming compensation for the injuries sustained during the incident of 16 September 1976 (see paragraphs 17-20 above) constituted a denial of access to the courts, in violation of Article 6 para. 1 (art. 6-1) of the Convention, as interpreted by the Court in its above-mentioned Golder judgment (Series A no. 18). The Commission expressed the opinion that there had been a violation in this respect. The Government ’ s principal plea was that the Court should decline to rule on the matter in the light of the changes made to the law and practice since the Golder judgment. 106. The Court is unable to accept this plea. The delay in allowing the applicants access to legal advice was occasioned in 1976-1977 by the "prior ventilation rule" but the latter was not replaced by the "simultaneous ventilation rule" until December 1981 (see paragraph 46 (b) above). Dating as it does from that time, this modification clearly could not have restored the right claimed by the applicants under Article 6 para. 1 (art. 6-1); it is therefore not possible to speak of a "solution", even partial, "of the matter" (see, mutatis mutandis, Rule 47 para. 2 of the Rules of Court and the above-mentioned Silver and Others judgment, Series A no. 61, pp. 31-32, para. 81). In addition, the applicants ’ observations of 13 October 1983 on the application of Article 50 (art. 50) (see paragraph 7 above) contain a claim for just satisfaction in respect, inter alia, of this alleged violation and a determination by the Court of the issue may be of relevance in this connection (see the same judgment, ibid.). 107. The Government, in the alternative, stated that, in the light of the subsequent change to domestic practice, they did not contest the Commission ’ s finding that there had been a violation of Article 6 para. 1 (art. 6-1). It is true that the applicants were eventually granted the permission which they sought and that, in Mr. Campbell ’ s case, he may have contributed to the delay by not furnishing promptly sufficient details of his allegations for an internal inquiry to commence (see paragraphs 17-20 above). However, for evidentiary and other reasons speedy access to legal advice is important in personal-injury cases. Moreover, as the Court pointed out in its above-mentioned Golder judgment (Series A no. 18, p. 13, para. 26), hindrance, even of a temporary character, may contravene the Convention. The principles stated in that judgment being applicable in the instant case, the Court shares the Commission ’ s opinion that a violation has occurred. C. Article 8 (art. 8) 108. The applicants contended that their inability, on account of the "prior ventilation rule", to correspond with their solicitors in connection with the aforesaid civil claim constituted a violation of Article 8 (art. 8) of the Convention, which reads as follows: "1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others." The Commission concluded that there had been a breach in this respect. The Government stated that, in the light of the subsequent change to domestic practice, they did not contest this opinion. 109. According to the evidence before the Court, one letter was stopped, namely that of 24 January 1977 from Messrs. Woodford & Ackroyd to Mr. Campbell (see paragraph 20 above). Furthermore, as the Commission rightly pointed out, it is clear that the effect of the "prior ventilation rule" was to prevent all correspondence between the applicants and their advisers concerning the proposed litigation until the internal inquiry had been completed. There was, therefore, an interference with the applicants ’ right to respect for correspondence, as guaranteed by Article 8 (art. 8). 110. The Court has already had the occasion, in its above-mentioned Silver and Others judgment, to consider under Article 8 (art. 8) the "prior ventilation rule" and its prohibition on the inclusion in letters to legal advisers of unventilated complaints about prison treatment. It there saw no reason to disagree with the Commission ’ s finding that this ground for stopping or restricting mail did not correspond to a necessity, within the meaning of Article 8 para. 2 (art. 8-2) (Series A no. 61, pp. 38-39, para. 99). The Court perceives no cause to depart from this conclusion on the present occasion. There has, therefore, been a violation of Article 8 (art. 8). IV. CONDITIONS FOR VISITS TO FATHER FELL BY HIS SOLICITORS A. Article 6 para. 1 (art. 6-1) 111. After being given leave to contact his solicitors, Father Fell was, for about two months, refused permission to consult them out of the hearing of a prison officer (see paragraph 22 above). He alleged that this constituted a breach of Article 6 para. 1 (art. 6-1), as interpreted by the Court in its above-mentioned Golder judgment. The Commission considered that this absence of privileged contact between lawyer and client amounted to an interference with the right of access to court that was incompatible with Article 6 para. 1 (art. 6-1). 112. The Government ’ s principal plea was that, in the light of the subsequent change to domestic practice, the Court should decline to rule on this claim. The reasons given in paragraph 106 above lead the Court to reject this plea. It notes, in this connection, that the rules on confidential consultation between a prisoner and his legal adviser were also not relaxed until December 1981 (see paragraph 46 (c) above). 113. As was pointed out by the Commission, there may well be security considerations which would justify some restriction on the conditions for visits by a lawyer to a prisoner. However, even though Father Fell was a "category A" prisoner (see paragraph 44 (a) above), the Government have not argued before the Court that, as regards out-of-hearing consultation, such considerations obtained in his case; indeed, they stated, in the alternative, that they did not contest the Commission ’ s finding on this issue. The Court sees no reason to disagree with that finding and therefore holds that there has been a violation of Article 6 para. 1 (art. 6-1) on this point. B. Article 8 (art. 8) 114. Father Fell also maintained that the aforesaid restriction on confidential consultation with his solicitors was in breach of his right to respect for his private life, as guaranteed by Article 8 (art. 8). 115. The Commission, in view of its conclusion under Article 6 para. 1 (art. 6-1), considered that it was not necessary to examine this claim. The Court is of the same opinion. V. THE APPLICANTS ’ ACCESS TO INDEPENDENT MEDICAL ADVICE 116. Before the Commission, the applicants alleged that the refusal to allow them access to independent medical advice (see paragraphs 23-24 above) also constituted a breach of Article 6 para. 1 (art. 6-1). This contention was not accepted by the Commission. 117. Since the applicants have not pursued this claim before the Court, there is no necessity to examine it (see, mutatis mutandis, the Sunday Times judgment of 26 April 1979, Series A no. 30, pp. 43-44, paras. 74-75). VI. RESTRICTIONS ON FATHER FELL ’ S PERSONAL CORRESPONDENCE 118. Father Fell complained of a restriction on his correspondence arising from the application of the rule prohibiting correspondence with persons other than relatives or existing friends (see paragraph 44 (a) above); he referred in particular to the fact that he was not allowed to correspond with Sister Power and Sister Benedict (see paragraph 25 above) and alleged that there had been a breach of Article 8 (art. 8) in this respect. The Commission concluded that the refusal to allow the applicant to correspond with these two nuns constituted a violation of Article 8 (art. 8). The Government stated that, in the light of the subsequent change to domestic practice (see paragraph 46 (a) above), they did not contest this opinion. 119. The only specific example of restriction on correspondence cited by the applicant dated back to 1974, well before his application to the Commission (see paragraphs 25 and 53 above). However, the Commission observed that the restrictions complained of appeared to have lasted until the relevant rules were changed in December 1981, and this was not disputed by the Government. 120. The Court has already had the occasion, in its above-mentioned Silver and Others judgment, to consider under Article 8 (art. 8) the restriction on prisoners ’ correspondence with persons other than a relative or friend. In the absence of special considerations relevant to the particular case in issue, it saw no reason, even as regards a "category A" prisoner (see paragraph 44 (a) above), to disagree with the Commission ’ s finding that this ground for restricting mail did not correspond to a necessity, within the meaning of Article 8 para. 2 (art. 8-2) (Series A no. 61, pp. 38-39, para. 99). The Court perceives no cause to depart from this conclusion on the present occasion. There has, therefore, been a violation of Article 8 (art. 8). VII. THE ALLEGED VIOLATION OF ARTICLE 13 (art. 13) 121. Father Fell alleged that there existed in the United Kingdom no effective remedy in respect of his claims under Articles 6 para. 1 and 8 (art. 6-1, art. 8) and that he was therefore the victim of a violation of Article 13 (art. 13), which reads as follows: "Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity." A. Article 13 taken in conjunction with Article 6 para. 1 (art. 13+6-1) 122. According to the Commission, Father Fell ’ s complaints under Article 6 para. 1 (art. 6-1), concerning access to legal advice, refusal to allow independent medical examination and refusal to allow confidential consultation with his lawyer, raised no separate issue under Article 13 (art. 13). 123. The Court agrees with this opinion, which was also urged by the Government. It has found that it is not necessary to examine the complaint concerning medical examination (see paragraph 117 above). The two other complaints relate to the question of access to court and, having regard to the Court ’ s conclusions under Article 6 para. 1 (art. 6-1) (see paragraphs 107 and 113 above), there is no need to examine them under Article 13 (art. 13); this is because the requirements of the latter Article (art. 13) are less strict than, and are here absorbed by, those of the former (see, as the most recent authority, the above-mentioned Silver and Others judgment, Series A no. 61, p. 41, para. 110). B. Article 13 taken in conjunction with Article 8 (art. 13+8) 124. There remain Father Fell ’ s complaints under Article 8 (art. 8), concerning access to legal advice, refusal to allow confidential consultation with his lawyer and the restrictions on his personal correspondence. These complaints were considered under Article 13 (art. 13) by the Commission, which concluded that there had been a violation by reason of the absence of an "effective remedy". 125. Having found that it is not necessary to consider under Article 8 (art. 8) the complaint relating to confidential consultation with a lawyer (see paragraph 115 above), the Court sees no call to examine this issue under Article 13 (art. 13). However, the same does not apply to the other two complaints. 126. It was not alleged that the restrictions at issue were unlawful under domestic law or resulted from a misapplication of the relevant directives. Again, it was not suggested that any remedies were available to the applicant other than the four channels of complaint examined by the Commission, namely an application to the Board of Visitors, an application to the Parliamentary Commissioner for Administration, the institution of proceedings before the English courts and a petition to the Home Secretary. The Government accepted, in their memorial to the Court, that prior to December 1981 the first three channels of complaint would not have provided Father Fell with an "effective remedy", within the meaning of Article 13 (art. 13), in respect of the complaints in question. For the reasons given in its above-mentioned Silver and Others judgment (Series A no. 61, pp. 42-44, paras. 114-118), the Court finds that this must be so. 127. At the hearings before the Court, the Government stated that they did not seek to argue that a petition to the Home Secretary would have provided an "effective remedy" as regards the delay in allowing contact with a lawyer. However, they suggested that the position might have been otherwise as regards the refusal to allow correspondence with Sister Power and Sister Benedict, had Father Fell established that the authorities had incorrectly applied the relevant directives in treating these two nuns as not being "close personal friends" (see paragraphs 25 and 44 (a) above). The Court has found (see paragraphs 110 and 120 above) that the restrictions on Father Fell ’ s access to legal advice and on his personal correspondence were the result of the application of norms that were incompatible with the Convention. In such circumstances, as the Court held in its above-mentioned Silver and Others judgment (ibid., p. 44, para. 118), there could be no "effective remedy" as required by Article 13 (art. 13). In particular, a petition to the Home Secretary could only have been effective if the complainant alleged that a measure of control over correspondence resulted from a misapplication of one of the relevant directives (ibid., p. 43, para. 116). And in the present case, Father Fell made no such allegation nor do the circumstances suggest that he would have been in a position to do so. 128. As regards the applicant ’ s complaints concerning the two restrictions in question, there has accordingly been a violation of Article 13 (art. 13). VIII. THE APPLICATION OF ARTICLE 50 (art. 50) A. Introduction 129. Article 50 (art. 50) of the Convention, the applicability of which was not contested in the present case, reads as follows: "If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party." 130. The Court, which has received the Government ’ s observations on the applicants ’ claims under this Article (art. 50) and noted that the Commission leaves the matter to the Court (see paragraph 7 above), considers that the question is ready for decision (Rule 50 para. 3, first sentence, of the Rules of Court). B. "General" and "special" damages 1. Mr. Campbell (a) The Board of Visitors ’ disciplinary proceedings 131. Mr. Campbell maintained that because of the defects in the procedure followed by the Board of Visitors in its adjudication in his case, the proceedings were "null and void" and the penalties awarded could not be regarded as legitimately imposed; this was said to apply, in particular, to an additional period of imprisonment which he calculated at 427 days. Referring, inter alia, to loss of society and alleged deterioration in his health, he claimed in this respect "substantial" but unquantified "general" damages; he also sought, by way of "special" damages, £12,400 and £3,745, respectively, for loss of earnings and for expenses relating to family visits to him in prison during that period. The Government resisted the argument that the Board ’ s proceedings were a nullity. Their principal submission was that Mr. Campbell had not shown that he had suffered any prejudice. 132. The only violations of Article 6 (art. 6) found by the Court relate to Mr. Campbell ’ s inability to obtain legal assistance or legal representation and to the failure of the Board of Visitors to pronounce its decision publicly (see paragraph 102 above). The Court ’ s only task is to examine what consequences these violations had for Mr. Campbell. 133. Bearing in mind the Court ’ s finding on Mr. Campbell ’ s general allegation of unfairness (see paragraph 102 above), there is nothing to suggest, nor can it be assumed, that the Board of Visitors would have reached any different conclusions if he had been legally assisted or represented. It also has to be remembered that the applicant did not avail himself of the possibility of replying in writing to the charges against him and, above all, declined to attend the hearing, thereby depriving himself of the opportunity of making a defence or raising a plea in mitigation (see paragraphs 13 and 14 above). Again, it goes without saying that the consequences for Mr. Campbell of the Board ’ s decision would have been the same even if it had been pronounced publicly. 134. Accordingly, no causal link has been shown to exist between these particular violations and the alleged damage, with the result that no just satisfaction falls to be awarded in this respect (see, mutatis mutandis, the Albert and Le Compte judgment of 24 October 1983, Series A no. 68, p. 7, para. 11). (b) Access to legal advice in connection with the personal-injuries claim 135. Mr. Campbell claimed "substantial" but unquantified "general" damages in respect of the delay in allowing him access to legal advice in connection with his intended civil action for damages for personal injuries (see paragraphs 17-20 above). The Government contested this claim, inter alia, on the ground that the delay had occasioned no prejudice. 136. The Court has found that the delay in question gave rise to breaches of Articles 6 para. 1 and 8 (art. 6-1, art. 8) (see paragraphs 107 and 110 above). However, Mr. Campbell was eventually able to obtain the advice which he sought and he has not shown in what way, if at all, his inability to do so at an earlier date adversely affected the institution or prospects of his civil action. The Court notes, in particular, that even after consulting his lawyers, the applicant appears to have been far from diligent in pursuing the matter (see paragraph 21 above). This claim therefore has to be rejected. 2. Father Fell (a) Access to legal advice in connection with the personal-injuries claim 137. The reasons given by the Court in the preceding paragraph for rejecting Mr. Campbell ’ s claim apply equally to a claim by Father Fell for "general" damages, which in his case related not only to delay in obtaining access to legal advice but also to the absence of an effective domestic remedy in this regard (see paragraphs 17-20 and 124-128 above). (b) Conditions for lawyers ’ visits 138. Father Fell sought "substantial" but unquantified "general" damages in respect of the refusal to allow him to consult his solicitors out of the hearing of a prison officer (see paragraph 22 above). The Government contested this claim, inter alia, on the ground that this restriction had occasioned no prejudice. 139. The Court has found that there was a breach of Article 6 para. 1 (art. 6-1) as a result of the restriction in question (see paragraph 113 above). However, the applicant has not shown in what way, if at all, it adversely affected his intended civil action for damages. The Court notes, in particular, that the restriction was in any event of short duration. This claim must therefore be rejected. (c) Restrictions on personal correspondence 140. Father Fell claimed "general" damages, again "substantial" but unquantified, in respect both of the restrictions on his personal correspondence and of the absence of an effective domestic remedy in this regard (see paragraphs 25 and 124-128 above). The Government contested this claim on various grounds. 141. It is true that the applicant may have experienced some annoyance and sense of frustration as a result of the matters in question. It does not appear, however, that this was of such intensity that it would in itself justify an award of compensation for non-pecuniary damage. Father Fell was, in fact, apparently allowed to correspond fairly extensively (see paragraph 25 above) and he did not seek to establish that the prohibition on corresponding with Sister Power and Sister Benedict arose from a misapplication of the relevant directives (see paragraph 127 above). Furthermore, although the Court has held that it cannot examine the compatibility with the Convention of the correspondence control regime in force since 1981 (see paragraph 104 above), substantial changes have been introduced and do appear in principle to have led to a significant improvement. In these circumstances, the Court considers that in relation to this head of claim its findings of violation of Article 8 (art. 8) and of Article 13 in conjunction with Article 8 (art. 13+8) (see paragraphs 120 and 128 above) constitute in themselves adequate just satisfaction, without it being necessary to afford financial compensation (see, amongst other authorities, the Silver and Others judgment of 24 October 1983, Series A no. 67, pp. 6-7, para. 10). C. Mr. Campbell ’ s and Father Fell ’ s costs and expenses 142. The applicants claimed in respect of costs and expenses referable to their representation in the proceedings before the Commission and the Court the following sums: (a) £13,860 for the fees and expenses of Mr. Thornberry, barrister-at-law; (b) £10,923.90 (together with value added tax of £1,641.59) for the fees and disbursements of Messrs. George E. Baker & Co., solicitors. 143. The Court will apply the various criteria which emerge from its case-law on the subject, as regards both the purpose for which the costs in question were incurred and the requirements that they be actually incurred, necessarily incurred and reasonable as to quantum (see, inter alia, the Zimmermann and Steiner judgment of 13 July 1983, Series A no. 66, p. 14, para. 36). It notes, in this connection, that Mr. Campbell, but not Father Fell, had the benefit of legal aid before the Commission and then, after reference of the case to the Court, in his relations with the Delegate (addendum to the Commission ’ s Rules of Procedure). 144. The Government indicated that they were prepared to pay such costs and expenses of the applicants as the Court might find to have been actually incurred, necessarily incurred and reasonable as to quantum and which were not covered by the Commission ’ s legal aid. With the exception of the points mentioned in paragraph 145 below, the Government did not assert that the applicants ’ claim failed to satisfy the Court ’ s criteria; in particular, they did not contest that Mr. Campbell had incurred liability for costs additional to those covered by his legal aid (cf., inter alia, the Airey judgment of 6 February 1981, Series A no. 41, p. 9, para. 13). Subject to an examination of those points, the Court therefore retains the whole of the claim. 145. At the hearings before the Court, the Government submitted that a proportion of the Strasbourg costs should be disallowed to reflect the fact that a substantial proportion of the applicants ’ complaints had been found to be inadmissible or rejected. However, in their memorial of 2 December 1983, they stated that they left this matter to the Court ’ s discretion. The Government also contended that, as regards his fees, Mr. Thornberry had charged at an excessive hourly rate, for an excessive number of hours and too much for the preparation of the case; they suggested a figure of £5,456 (in lieu of £12,820). They also questioned certain of the amounts claimed for his expenses. 146. Having regard to the extent to which the applicants ’ complaints were unsuccessful, the Court considers that their costs and expenses should be reimbursed to them only in part (see the Le Compte, Van Leuven and De Meyere judgment of 18 October 1982, Series A no. 54, p. 10, para. 21). It also finds that the Government ’ s objections concerning the amounts claimed for Mr. Thornberry ’ s fees are warranted. In these circumstances, the Court, deciding on an equitable basis as is required by Article 50 (art. 50) and making due allowance for the sum received by Mr. Campbell from the Commission by way of legal aid, fixes the costs and expenses to be reimbursed at £5,000 for Mr. Thornberry and £8,000 for Messrs. George E. Baker & Co. These figures are to be increased by any value added tax that may be due. | The Court held that there had been no violation of Article 6 § 1 of the Convention regarding the first applicant’s complaints that the Board of Visitors had not been an independent and impartial tribunal. It did not consider that the fact that members of the Board were appointed by the Home Secretary, who was himself responsible for the administration of prisons in England and Wales, established that they were not independent of the executive. To hold otherwise would have meant that judges appointed by or on the advice of a Minister having responsibilities in the field of the administration of the courts were also not independent. Moreover, although it was true that the Home Office may issue the Board with guidelines as to the performance of its functions, it was not subject to its instructions in its adjudicatory role. Further, concerning the question of the Board’s independence having regard to the fact that it has both adjudicatory and supervisory roles, the Court noted in particular that the impression which prisoners may have that the Board was closely associated with the executive and the prison administration was a factor of weight, particularly bearing in mind the importance of the maxim “justice must not only be done: it must also be seen to be done”. However, the existence of such sentiments on the part of inmates, which was probably unavoidable in a custodial setting, was not sufficient to establish a lack of “independence”. This requirement of Article 6 would not be satisfied if prisoners were reasonably entitled, on account of the frequent contacts between a Board and the authorities, to think that the former was dependent on the latter; however, the Court did not consider that the mere fact of these contacts, which exist also with the prisoners themselves, could justify such an impression. |
98 | State’s duty to protect physical and psychological integrity of individuals | II. RELEVANT DOMESTIC LAW AND PRACTICE A. Child care proceedings 1. Emergency protection orders 92. Section 44(1) of the Children Act 1989 (“the 1989 Act”) gives a court the power to make an EPO in respect of a child living with his parents if it is satisfied that there is reasonable cause to believe that the child is likely to suffer significant harm if he is not removed to accommodation provided by the person applying for the order. 2. Care orders and interim care orders 93. Section 31 of the 1989 Act empowers a court to make an order placing a child in the care of the local authority or putting him under the local authority’s supervision. Pursuant to section 31(2), such an order can only be made if the court is satisfied: “(a) that the child concerned is suffering, or is likely to suffer, significant harm; and (b) that the harm, or likelihood of harm, is attributable to– (i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or (ii) the child’s being beyond parental control.” 94. Section 37(1) allows a court considering whether to make a care order to direct the local authority to undertake an investigation of the child’s circumstances. 95. Pursuant to section 38(1), a court can make an ICO where an application for a care order is adjourned or where directions under section 37(1) have been given. Before making such an order, the court must be satisfied that there are reasonable grounds for believing that the circumstances with respect to the child are as mentioned in section 31(2). ICOs are limited in time: the first order may last no longer than eight weeks and subsequent orders no longer than four weeks. 96. Section 38(6) provides that where the court makes an interim care order, it may give such directions as it considers appropriate with regard to the medical or psychiatric examination or other assessment of the child. 97. When a court makes an order under the 1989 Act, section 1(1) provides that the child’s welfare shall be the court’s paramount consideration. Section 1(2) establishes a general principle that any delay in determining any question with respect to the upbringing of a child is likely to prejudice the welfare of the child. Section 1(3) provides that the court should have regard in particular to; “(a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding); (b) his physical, emotional and educational needs; (c) the likely effect on him of any change in his circumstances; (d) his age, sex, background and any characteristics of his which the court considers relevant; (e) any harm which he has suffered or is at risk of suffering; (f) how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs; (g) the range of powers available to the court under this Act in the proceedings in question.” 3. Placement orders 98. Section 21(1) of the Adoption and Children Act 2002 (“the 2002 Act”) provides for the making of a placement order by the court authorising a local authority to place a child for adoption with prospective adopters. Pursuant to section 21(2), the court may not make a placement order in respect of a child unless: “(a) the child is subject to a care order, (b) the court is satisfied that the conditions in section 31(2) of the 1989 Act (conditions for making a care order) are met, or (c) the child has no parent or guardian.” 99. Section 21(3) permits the court to dispense with the parents’ consent to the making of a placement order. Section 52 provides: “(1) The court cannot dispense with the consent of any parent or guardian of a child to the child being placed for adoption or to the making of an adoption order in respect of the child unless the court is satisfied that– (a) the parent or guardian cannot be found or is incapable of giving consent, or (b) the welfare of the child requires the consent to be dispensed with.” 100. Section 21(4) provides that a placement order continues in force until it is revoked or an adoption order is made in respect of the child. 101. Section 22(3)(b) of the 2002 Act allows a local authority to apply for a placement order in respect of a child who is subject to a care order. 102. Section 26(3) permits the parent of child to make an application for contact with a child in respect of whom a placement order has been made. Section 27(4) provides that: “Before making a placement order the court must– (a) consider the arrangements which the adoption agency has made, or proposes to make, for allowing any person contact with the child, and (b) invite the parties to the proceedings to comment on those arrangements.” 103. Section 1(2) of the 2002 Act provides that the paramount consideration of the court or adoption agency must be the child’s welfare, throughout his life. Section 1(3) requires courts and adoption agencies to bear in mind at all times that, in general, any delay in coming to a decision relating to the adoption of a child is likely to prejudice the child’s welfare. Section 1(4) sets out, in the following terms, a list of matters to which courts and adoption agencies must have regard when exercising their powers: “(a) the child’s ascertainable wishes and feelings regarding the decision (considered in the light of the child’s age and understanding), (b) the child’s particular needs, (c) the likely effect on the child (throughout his life) of having ceased to be a member of the original family and become an adopted person, (d) the child’s age, sex, background and any of the child’s characteristics which the court or agency considers relevant, (e) any harm (within the meaning of the Children Act 1989 ...) which the child has suffered or is at risk of suffering, (f) the relationship which the child has with relatives, and with any other person in relation to whom the court or agency considers the relationship to be relevant, including– (i) the likelihood of any such relationship continuing and the value to the child of its doing so, (ii) the ability and willingness of any of the child’s relatives, or of any such person, to provide the child with a secure environment in which the child can develop, and otherwise to meet the child’s needs, (iii) the wishes and feelings of any of the child’s relatives, or of any such person, regarding the child.” 104. Section 1(6) provides: “The court or adoption agency must always consider the whole range of powers available to it in the child’s case (whether under this Act or the Children Act 1989); and the court must not make any order under this Act unless it considers that making the order would be better for the child than not doing so.” 4. Adoption orders 105. Section 46 of the 2002 Act provides for the making of an adoption order, transferring parental responsibility for the child to the adopters. Under section 47, an adoption order can only be made in the absence of the parents’ consent where the child has been placed for adoption pursuant to a placement order. B. Clarifications of aspects of a judgment 106. It is the established practice of family courts for the judge to invite representations as to any factual errors in the judgment. The practice was described by the Court of Appeal in Re T (Contact: Alienation: Permission to Appeal) [2002] EWCA Civ 1736, as follows: “In a complex case, it might well be prudent, and certainly not out of place, for the judge, having handed down or delivered judgment, to ask the advocates whether there are any matters which he has not covered. Even if he does not do this, an advocate ought immediately, as a matter of courtesy at least, to draw the judge’s attention to any material omission of which he is then aware or then believes exists. It is well established that it is open to a judge to amend his judgment, if he thinks fit, at any time up to the drawing of the order. In many cases, the advocate ought to raise the matter with the judge in pursuance of his duty to assist the court to achieve the overriding objective ...; and in some cases, it may follow from the advocate’s duty not to mislead the court that he should raise the matter rather than allow the order to be drawn. It would be unsatisfactory to use an omission by a judge to deal with a point in a judgment as grounds for an application for appeal if the matter has not been brought to the judge’s attention when there was a ready opportunity so to do. Unnecessary costs and delay may result.” 107. This passage was cited with approval by the Court of Appeal in Re M (fact-finding hearing burden of proof) [2008] EWCA Civ 1261. The judge in that case added: “I wish to make it as clear as possible that after a judge has given judgment, counsel have a positive duty to raise with the judge not just any alleged deficiency in the judge’s reasoning process but any genuine query or ambiguity which arises on the judgment. Judges should welcome this process, and any who resent it are likely to find themselves the subject of criticism in this court. The object, of course, is to achieve clarity and – where appropriate – to obviate the need to come to this court for a remedy. This process applies in cases involving children in both public and private law as much as it applies in any other case. I very much hope that in the future this court will not be faced with matters which are plainly within the province of the judge, and are properly capable of being resolved at first instance, and immediately after the relevant hearing.” C. The statutory checklists and Article 8 in childcare cases 108. The statutory checklists are set out in section 1(3) of the 1989 Act, in respect of care order, and section 1(4) of the 2002 Act, in respect of placement and adoption orders (see paragraphs 97 and 103 above). 109. In EH v London Borough of Greenwich & Others [2010] EWCA Civ 344, decided on 9 April 2010, the Court of Appeal was asked to consider whether the judge had erred in failing to refer explicitly to the statutory checklists in the 1989 and 2002 Acts and to Article 8 of the Convention when making a care and placement order. Mrs Justice Baron, delivering the lead judgment, noted: “61. The judge was making a very draconian order. As such, he was required to balance each factor within the checklist in order to justify his conclusions and determine whether the final outcome was appropriate. Accordingly, because this analysis is entirely absent, his failure to mention the provisions of the Children Act and deal with each part of Section 1(3) undermines his conclusions and his order.” 110. As to Article 8, she continued: “64. In a case where the care plan leads to adoption the full expression of the terms of Article 8 must be explicit in the judgment because, ultimately, there can be no greater interference with family life. Accordingly, any judge must show how his decision is both necessary and proportionate. In this case what the judge said was ‘ removing the children from their Mother without good reason ... would be a tragedy for them, quite apart from the mother’. With all due respect to him, this does not demonstrate that he had Article 8 well in mind. Whilst he decided that the experts apparently proffered no other solution it is apparent from the manner in which this case unfolded that they did not have the opportunity to make recommendations upon the additional evidence which, I remind myself, amounted to one sighting of the Father and Mother together in the street. Consequently, it was even more incumbent upon him to consider precisely why the family bond should be broken.” 111. Baron J considered that the judge should have turned his mind to each of the provisions set out in section 1(4) of the 2002 Act when considering whether to make a placement order, and not truncated his considerations in one paragraph. She continued: “69. ... By so doing he specifically failed to address these children’s particular needs and the likely effect on them (throughout their lives) of their ceasing to be a member of their original family. They have an established attachment to a loving mother who, with targeted assistance, might be able to provide some form of future mothering.” 112. Finally, on the established practice of family courts for the judge to invite representations as to any factual errors in the judgment, and the failure of the mother in that case to do so, the judge considered that the omissions in the judgment could not have been put right following that route. 113. Lord Justice Wall noted: “95. ... There is no more important or draconian decision than to part parent and child permanently by means of an adoption order. It follows, in my judgment, that if this is the course which the court feels constrained to follow, the process whereby it is achieved must be both transparent and must comply with both ECHR and the relevant statutory provisions. 96. Once again, these are not hoops imposed by Parliament and the appellate judiciary designed to make the life of the hard-pressed circuit judge even more difficult than it is already. They are not boxes to be ticked so that this court can be satisfied that the judge has gone through the motions. They are important statutory provisions, bolstered by decisions of this court which require a judge fully and carefully to consider whether the welfare of the child concerned throughout his life ... requires adoption.” 114. He considered that, however experienced the judge, it was wholly inadequate to deal with these crucially important issues in a sentence or two, as the judge in that case had done, observing: “98. ... The judge does not mention either Act (the Children Act 1989 and the Adoption and Children Act 2002) nor does he make any reference to the rights enjoyed by both parents and children under ECHR, nor does he mention proportionality. In my judgment, these are serious defects which vitiate the judgment and mean that this appeal must be allowed. 99. The answers to the criticisms I have made are, as I understood them; (1) all these matters were put to the judge so he must have had them in mind; and (2) all the professional and expert evidence was to the effect that if the mother was a liar, and had lied to the judge about her relationship with the father, adoption was inevitable – therefore the judge was entitled to take a short cut. 100. In my judgment, neither defence meets the criticism ...” THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 115. The applicant complained that the domestic courts’ refusal to order an assessment of her as a sole carer for her son and their failure to have regard to all relevant considerations when making a placement order violated her right to respect for her family life as provided in Article 8 of the Convention, which reads as follows: “1. Everyone has the right to respect for his private and family life ... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 116. The Government contested that argument. A. Admissibility 117. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties’ submissions a. The applicant 118. The applicant argued that in failing to grant an assessment of her as a sole parent and in failing to have regard to all relevant factors before making a care and placement order in respect of K. the domestic authorities violated her right to respect for her family life. She emphasised that the Family Proceedings Court had heard live evidence from the parties and had ordered that an assessment be carried out. In overturning this decision, the County Court did not have the benefit of hearing live evidence. It had before it a typed note of evidence before the Family Proceedings Court prepared by the clerk (see paragraph 63 above). However, this note was so inadequate as to give rise to confusion on key pieces of evidence regarding whether K. should remain in foster care or be placed for adoption. In deciding that there should be no assessment of the applicant, the County Court made no reference to her Article 8 rights. 119. The applicant also argued that the making of the placement order was fundamentally flawed as the correct procedure had not been complied with. She considered that the placement proceedings had been informally added to the proceedings in the Family Proceedings Court and that, as a consequence, important procedural safeguards had not been observed. 120. She further contended that before making a placement order, the court was obliged to consider section 1 of the 2002 Act (see paragraphs 103-104 above). The Family Proceedings Court did not do so because it decided to order that a section 38(6) assessment be carried out and so was not required to examine the request that a placement order be made. In overturning that decision, the County Court judge focussed the majority of his judgment on whether the Family Proceedings Court was right to order that an assessment be conducted. Having concluded that it was not, the judge then simply made a placement order (see paragraph 82 above). He did not set out his reasons with reference to the criteria stipulated in section 1(4) of the 2002 Act (see paragraph 103 above). 121. The Court of Appeal did not rectify the errors made by the lower court. It indicated that any complaint about the peremptory nature of the order should have been made to the County Court judge (see paragraph 86 above). In particular, it did not address the appeal ground regarding consideration of the section 1(4) criteria, save to say that omissions should have been brought to the attention of the judge (see paragraph 87 above). 122. The applicant disputed that any omissions could be remedied by an application for contact or for revocation of the placement order. She highlighted that K. had now been placed with a prospective adopter and that the court had quite properly given precedence to the new bonds that had started to form in that placement. 123. The applicant concluded that the placement order had allowed K. to be placed with a prospective adopter, thus leading to the severing of links with his natural family, without a proper and reasoned explanation being provided. There had therefore been a violation of Article 8 of the Convention. b. The Government 124. The Government considered that the decisions taken in the case were proportionate and fell within the State’s margin of appreciation given that, at each stage, all relevant circumstances were taken into account and cogent reasons were given for the decision reached. They emphasised that the domestic courts had had direct contact with the persons concerned and that it was not the role of this Court to substitute itself for the domestic authorities. 125. The Government disputed the applicant’s contention that the correct procedures had not been followed prior to the making of the care and placement order by the County Court. In particular, it was clear from the evidence before the Court that the applicant was well aware before the hearing in the Family Proceedings Court that the local authority was seeking a care and placement order. 126. The refusal of the County Court judge to allow an assessment of the applicant as a sole carer was based on a thorough analysis of the expert evidence, which included evidence of K.’s own wishes and feelings. The decision was founded on the judge’s conclusion that the applicant’s separation from P.C. was unlikely to be maintained; that a further assessment of the mother while K. remained in local authority care could not provide the evidence required to displace expert conclusions that the applicant lacked the parenting skills necessary to care for the child; and that any delay would therefore not be in K.’s best interests. 127. The Government further contended that the County Court judge did have regard to all relevant considerations before deciding to make the placement order. In particular, he had before him and took into account evidence as to K.’s wishes and feelings and gave extensive and cogent reasons for his conclusion that a placement order should be made. The Court of Appeal also gave proper reasons for dismissing the applicant’s appeal. 128. The Government made a number of submissions in support of their position. First, they contended that the local authority, D.I. and the guardian had all made efforts to ascertain and assess K.’s wishes and feelings about whether he should return to his parents. In each case he had indicated that although he wished to see his parents he would be scared unless social services were present. Second, the County Court judge had concluded that the separation of the applicant and P.C. was not genuine; in these circumstances there was no point seeking K.’s views as to the possibility of return to his mother alone. Third, there was nothing on the face of the County Court judgment to indicate that the judge had left K.’s wishes out of account in reaching its decision. Fourth, there was nothing to suggest that the decision would have been different had the applicant submitted that he lacked sufficient information to make a placement order. Fifth, the applicant could have, had she so wished, made that submission by taking advantage of the judge’s invitation (see paragraph 82 above). Sixth, considering the evidence as a whole, it was clear that each decision had been taken because on the basis of expert evidence the courts considered that returning K. either to his parents or to the applicant alone would cause harm and would not be in his best interests. Finally, the Government pointed out that before any final adoption order was made the court would be obliged again to consider the matters set out in section 1 of the 2002 Act. They further noted that the applicant could have applied, with the leave of the court, to have the placement order revoked at any time before a placement was made. 129. The Government therefore invited the Court to find that there had been no violation of Article 8 of the Convention. 2. The Court’s assessment 130. There is no doubt that the decision to refuse a further assessment and to make a care and placement order in the present case constituted a serious interference with the applicant’s right to respect for her family life within the meaning of Article 8 § 1 of the Convention. It must therefore be determined whether the interference was justified under Article 8 § 2, namely whether it was in accordance with the law, pursued a legitimate aim and was necessary in a democratic society. 131. As to the lawfulness of the actions of the domestic courts, the Court notes that the applicant, in her submissions, made reference to alleged failures on the part of the authorities to comply with the relevant procedures for the making of a placement order (see paragraph 119 above). However, the Court is satisfied, on the basis of the evidence before it, that the correct procedures set out in the applicable legislation were followed and that the County Court judge was entitled to make a placement order in the case. The applicant also complained that the domestic courts did not have regard to section 1(4) of the 2002 Act when making the placement order (see paragraph 120 above). While the Court does not rule out that such a complaint could give rise to the question whether the measure was “in accordance with the law” within the meaning of Article 8 § 2, it observes that the applicant in the present case did not argue that any issue as to the lawfulness, in Article 8 terms, of the measure arose. In the absence of any submissions on the matter the Court is therefore of the view that this complaint is more appropriately considered in the context of the necessity and proportionality of the measure. The Court therefore accepts that the actions of the domestic authorities were “in accordance with the law”. 132. It is further not disputed that the measures pursued the legitimate aim of protecting the rights of others, namely those of K. The Court must therefore examine whether the domestic authorities’ actions were necessary in a democratic society. a. General principles 133. The Court’s case-law regarding care proceedings and measures taken in respect of children clearly establishes that, in assessing whether an interference was “necessary in a democratic society”, two aspects of the proceedings require consideration. First, the Court must examine whether, in the light of the case as a whole, the reasons adduced to justify the measures were “relevant and sufficient”; second it must be examined whether the decision-making process was fair and afforded due respect to the applicant’s rights under Article 8 of the Convention (see K and T. v. Finland [GC], no. 25702/94, § 154, ECHR 2001-VII; R.K. and A.K. v. the United Kingdom, no. 38000/05, § 34, 30 September 2008; T.S. and D.S. v. the United Kingdom (dec.), no. 61540/09, 19 January 2010; A.D. and O.D. v. the United Kingdom, no. 28680/06, § 82, 16 March 2010; Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 134, 6 July 2010; and R. and H. v. the United Kingdom, no. 35348/06, §§ 75 and 81, 31 May 2011). 134. The Court reiterates that in cases concerning the placing of a child for adoption, which entails the permanent severance of family ties, the best interests of the child are paramount (see Johansen v. Norway, 7 August 1996, § 78, Reports of Judgments and Decisions 1996 ‑ III; Kearns v. France, no. 35991/04, § 79, 10 January 2008; and R. and H., cited above, §§ 73 and 81). In identifying the child’s best interests in a particular case, two considerations must be borne in mind: first, it is in the child’s best interests that his ties with his family be maintained except in cases where the family has proved particularly unfit; and second, it is in the child’s best interests to ensure his development in a safe and secure environment (see Neulinger and Shuruk, cited above, § 136; and R. and H., cited above, §§ 73-74). It is clear from the foregoing that family ties may only be severed in very exceptional circumstances and that everything must be done to preserve personal relations and, where appropriate, to “rebuild” the family (see Neulinger and Shuruk, cited above, § 136; and R. and H., cited above, § 73). It is not enough to show that a child could be placed in a more beneficial environment for his upbringing (see K and T., cited above, § 173; and T.S. and D.S., cited above). However, where the maintenance of family ties would harm the child’s health and development, a parent is not entitled under Article 8 to insist that such ties be maintained (see Neulinger and Shuruk, cited above, § 136; and R. and H., cited above, § 73). 135. The identification of the child’s best interests and the assessment of the overall proportionality of any given measure will require courts to weigh a number of factors in the balance. The Court has not previously set out an exhaustive list of such factors, which may vary depending on the circumstances of the case in question. However, it observes that the considerations listed in section 1 of the 2002 Act (see paragraph 103 above) broadly reflect the various elements inherent in assessing the necessity under Article 8 of a measure placing a child for adoption. In particular, it considers that in seeking to identify the best interests of a child and in assessing the necessity of any proposed measure in the context of placement proceedings, the domestic court must demonstrate that it has had regard to, inter alia, the age, maturity and ascertained wishes of the child, the likely effect on the child of ceasing to be a member of his original family and the relationship the child has with relatives. 136. The Court recognises that, in reaching decisions in so sensitive an area, local authorities and courts are faced with a task that is extremely difficult. Further, the national authorities have had the benefit of direct contact with all the persons concerned, often at the very stage when care measures are being envisaged or immediately after their implementation. There is therefore a need to allow them a certain margin of appreciation in deciding how best to deal with the cases before them and it is accordingly not the Court’s task to substitute itself for the domestic authorities but to review, in the light of the Convention, the decisions taken and assessments made by those authorities in the exercise of their margin of appreciation (see K and T., cited above, § 154; A.D. and O.D., cited above, § 83; Neulinger and Shuruk, cited above, § 138; and R. and H., cited above, § 81). However, it must be borne in mind that the decisions taken by the courts in this field are often irreversible, particularly in a case such as the present one where a placement order has been made. This is accordingly a domain in which there is an even greater call than usual for protection against arbitrary interferences (see B. v. the United Kingdom, 8 July 1987, § 63, Series A no. 121; X v. Croatia, no. 11223/04, § 47, 17 July 2008; and R. and H., cited above, § 76). 137. The margin of appreciation to be accorded to the competent national authorities will vary in the light of the nature of the issues and the seriousness of the interests at stake, such as, on the one hand, the importance of protecting a child in a situation which is assessed as seriously threatening to his or her health or development and, on the other hand, the aim of reuniting the family as soon as circumstances permit (see K and T., cited above, § 155). The Court has indicated that the authorities enjoy a wide margin of appreciation in assessing the necessity of taking a child into care. However, a stricter scrutiny is called for in respect of any further limitations, such as restrictions placed by the authorities on parental rights of access, and of any legal safeguards designed to secure an effective protection of the right of parents and children to respect for their family life, as such further limitations entail the danger that the family relations between the parents and a young child are effectively curtailed (see K and T., cited above, § 155; R.K. and A.K., cited above, § 34; and A.D. and O.D., cited above, § 83; R. and H., cited above, § 81). The making of a placement order in respect of a child must be subject to the closest scrutiny. 138. As to the decision-making process, what has to be determined is whether, having regard to the particular circumstances of the case and notably the serious nature of the decisions to be taken, the parents have been involved in the decision-making process, seen as a whole, to a degree sufficient to provide them with the requisite protection of their interests and have been able fully to present their case (see Neulinger and Shuruk, cited above, § 139; and R. and H., cited above, § 75). Thus it is incumbent upon the Court to ascertain whether the domestic courts conducted an in-depth examination of the entire family situation and of a whole series of factors, in particular of a factual, emotional, psychological, material and medical nature, and made a balanced and reasonable assessment of the respective interests of each person, with a constant concern for determining what would be the best solution for the child (see, mutatis mutandis, Neulinger and Shuruk, cited above, § 139). In practice, there is likely to be a degree of overlap in this respect with the need for relevant and sufficient reasons to justify a measure in respect of the care of a child. 139. The need to involve the parents fully in the decision-making process is all the greater where the proceedings may culminate in a child being taken from his biological parents and placed for adoption ( R. and H., cited above, § 76). b. Application of the general principles to the facts of the case 140. The applicant’s complaint comprises two aspects. First, she complains about the refusal of the domestic courts to order an assessment of her as a sole carer, which she contends constituted a disproportionate interference with her Article 8 rights. Second, she complains that the reasons given for making a placement order were inadequate. 141. The Court observes at the outset that the decision as to whether K. should be raised by the applicant or by another family was effectively taken at the stage at which the placement order was made. The possibility of revoking the placement order and the prospect of a future evaluation by reference to the criteria in section 1 of the 2002 Act (see paragraph 103 above) in the context of an application for an adoption order under section 46 of the 2002 Act (see paragraph 105 above) cannot be relied upon as providing any kind of safeguard in the proceedings leading to the making of placement order in respect of K. In particular, once K. was placed with a prospective adopter, he began to establish with her new bonds and his interest not to have his de facto family situation changed again became a significant factor to be weighed in the balance against his return to the applicant’s care (see W. v. the United Kingdom, 8 July 1987, § 62, Series A no. 121; and K and T., cited above, § 155). 142. It is not disputed that the threshold criteria enabling the court to make a placement order – namely that there were reasonable grounds for believing that K. was likely to suffer significant harm because of inadequate care – were met. The immediate question for the domestic courts in the applicant’s case was whether to make such an order or whether to order a further assessment which could result in K. being returned to the applicant’s care. 143. The Court’s starting point is the judgment of the Family Proceedings Court. Although that court did not reach any conclusion as to whether a placement order ought to be made, in its judgment it explained that it accepted the welfare aspects of the Guardian’s report, before indicating that it had reached a different conclusion as a result of the applicant’s late position statement (see paragraph 69 above). It accordingly ordered a further assessment. 144. The County Court subsequently overturned the order of the Family Proceedings Court and made a placement order. The applicant does not dispute that she was advised that the local authority and the guardian were seeking a placement order from the County Court. It is therefore for this Court to assess whether the County Court’s reasons were relevant and sufficient, by reference to the general principles set out above. 145. The Court observes that the County Court judge began by emphasising that any decision to order a further assessment had to be in the best interests of the child (see paragraph 80 above). In identifying K.’s best interests, the judge noted that any further assessment would entail a degree of disruption to K.’s foster placement and a risk of emotional harm should the assessment break down. He considered that the duration of the assessment would be too short to provide sufficient guarantees that the separation of the applicant and P.C. would last (see paragraph 80 above). He reached the conclusion that “the evidence about the mother was clear” and that an assessment of the applicant would never be able to provide evidence that would be sufficient to justify the refusal of a care order, given her shortcomings and the real risk that she would resume her relationship with P.C. Thus the only effect of the decision to order an assessment was to delay and jeopardise the prospect of finding a long-term placement for K (see paragraph 81 above). 146. The judge was clearly of the view that the resumption of the applicant’s relationship with P.C. entailed a risk to K.’s well-being. His conclusion that such resumption was likely and his negative view as to the consequences for K. do not appear to be unreasonable having regard to the history of the case and the various reports prepared in the context of the proceedings, which made frequent reference to P.C.’s controlling nature and the difficulties encountered by the applicant in asserting herself (see paragraphs 29, 30, 39, 44 and 58 above). While, as the Court has explained above, it is in a child’s best interests that his family ties be maintained where possible, it is clear that in K.’s case this was outweighed by the need to ensure his development in a safe and secure environment (see paragraph 134 above). In this regard the Court observes that attempts were made to rebuild the family through the provision of support for alcohol abuse and opportunities for parenting assistance (see paragraphs 27 and 33 above). When the applicant indicated that she had separated from P.C., she was given details of domestic violence support that she could access (see paragraph 26 above). It appears that she did not access such support and ultimately reconciled with P.C. on that occasion. The reports prepared by the social worker, the guardian and D.I. highlighted the difficulties encountered in trying to assist the family to address concerns as a result of the parents’ failure to engage with the authorities and, in particular, P.C.’s uncooperative stance (see paragraphs 36-37, 41, 44-45, 47 and 58 above). 147. The Court acknowledges that, in refusing the further assessment and instead making a placement order, the County Court judge did not make express reference to the relevant considerations arising under Article 8 of the Convention (see paragraph 135 above) or to the various factors set out in section 1 of the 1989 Act and section 1 of the 2002 Acts (see paragraph 82 above). However, as outlined above, it is clear that he directed his mind, as required under Article 8 of the Convention, to K.’s best interests and that, in reviewing the applicant’s application for a further assessment, considered whether in the circumstances rehabilitation of K. to his biological family was possible. He concluded that it was not. In reaching that decision he had regard to various relevant factors and made detailed reference to the reports and oral evidence of the social worker, the guardian (whose report was based on full consideration of the welfare checklist) and D.I., all of whom identified the various issues at stake (see paragraphs 78-81 above). Further, the Court notes that the applicant was invited by the judge to bring to his notice anything that required his further attention in court (see paragraph 82 above), but that she failed to seek any clarification from him as to the reasons for his decision. 148. It is also of relevance that the applicant was able to seek a further review of her case by the Court of Appeal. In this regard, the Court observes that the Court of Appeal has recognised the need for a careful balancing act to be conducted by reference to section 1 of both the 1989 and 2002 Acts and to Article 8 of the Convention (see paragraphs 109-114 above). It was satisfied in the applicant’s case that the judge had reached a conclusion which was fully merited on the evidence. 149. In the circumstances of the case, the Court considers that the decision to make a placement order did not exceed the margin of appreciation afforded to the respondent State and the reasons for the decision, taking into account the concerns expressed by the judge regarding the applicant’s ability to separate from P.C., were relevant and sufficient. It is further satisfied that the applicant was given every opportunity to present her case and was fully involved in the decision-making process. 150. There has accordingly been no violation of Article 8 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 151. In her written submissions to the Court dated 18 May 2011, the applicant alleged for the first time that there had been a violation of Article 13 as a result of the decision of the Court of Appeal. 152. The Court observes that the judgment of the Court of Appeal was handed down on 24 November 2009. The applicant’s complaint under Article 13 was therefore lodged outside the six-month period stipulated in Article 35 § 1 of the Convention. In any event the Court reiterates that the effectiveness of the remedy for the purpose of Article 13 does not depend on the certainty of a favourable outcome for the applicant (see K and T., cited above, §§ 198-199; and M.S.S. v. Belgium and Greece [GC], no. 30696/09, § 289, 21 January 2011). There is no indication that Court of Appeal would not, in general, fulfil the requirements of an “effective remedy” within the meaning of Article 13. The complaint must accordingly be declared inadmissible pursuant to Article 35 §§ 3 and 4. | The Court held that there had been no violation of Article 8 (right to respect for private and family life) of the Convention, finding that the reasons for the decision to make a placement order had been relevant and sufficient, and that the applicant had been given every opportunity to present her case and had been fully involved in the decision-making process. The Court found in particular that, in the light of the history of the case and the reports, the County Court judge’s view that a resumption of the applicant’s relationship with the father was likely and entailed a risk to the child’s well-being did not appear unreasonable. Accordingly, while it was in a child’s best interests that his or her family ties be maintained where possible, it was clear that in the instant case this consideration had been outweighed by the need to ensure the child’s development in a safe and secure environment. In this regard the Court observed in particular that attempts had been made to rebuild the family through the provision of support for alcohol abuse and opportunities for parenting assistance. When the applicant indicated that she had separated from the child’s father, she had further been given details of domestic violence support that she could access. It appeared, however, that she had not accessed such support and had ultimately reconciled with the child’s father. |
15 | Family reunification rights | II. RELEVANT DOMESTIC AND INTERNATIONAL LAW A. Domestic Law 31. Articles 43, 47, 51 (2), 62 (a) and 96 of the Foreign Nationals Act of 16 December 2005, as in force at the relevant time, read as follows: Art. 43 Spouses and children of persons with a permanent residence permit « 1. The foreign spouse and unmarried children under 18 of a person with a permanent residence permit who live with that person are entitled to be granted a residence permit and to have their residence permit extended. 2. After a law-abiding and uninterrupted residency of five years, spouses are entitled to be granted a permanent residence permit. 3. Children under twelve are entitled to be granted a permanent residence permit. » Art. 47 Time limit for family reunification « 1. The right to family reunification must be exercised within five years. Children over twelve must be reunified with their family within twelve months. 2. [ ... ]. 3. The time limits for family members of: a. [ ... ]; b. foreign nationals begin with the granting of a residence or permanent residence permit or with the constitution of the family relationship. 4. A subsequent family reunification shall be authorised only if there are important family reasons therefor. If necessary, the views of children over 14 on family reunification shall be heard. » Art. 51 Expiry of the right to family reunification « [ ... ] 2. The rights in terms of Articles 43, 48 and 50 expire if: a. they are exercised in abuse of the law, in particular to circumvent the regulations of this Act and of its implementing provisions on admission and residency; b. there are grounds for revocation in terms of Article 62. » Art. 62 Revocation of permits and other rulings « The competent authority may revoke permits, with the exception of the permanent residence permit, and other rulings under this Act if the foreign national: a. or their representative in the permit procedure makes false statements or conceals material facts; b. [ ... ]. » Art. 96 Exercise of discretion « 1. In exercising discretion, the competent authorities shall take account of public interests and personal circumstances, as well as the degree of the integration of foreign nationals. [ ... ]. » 32. Article 75 of the Federal Ordinance “Admission, Residence and Exercise of a Lucrative Activity ” of 24 October 2007 (L ’ Ordonnance relative à l ’ Admission, au Séjour et à l ’ Exercise d ’ une Activité lucrative ), as in force at the relevant time, reads as follows: Article 75 « Important family reasons as set out in Article 47(4) of the Foreign Nationals Act and [ ... ] may be cited if the best interest of the child can only be guaranteed through family reunification in Switzerland. » B. International Law 33. The relevant provisions of the United Nations Convention on the Rights of the Child of 20 November 1989, which entered into force in respect of Switzerland on 26 March 1997, read as follows: Preamble « The States Parties to the present Convention, [ ... ] Convinced that the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community, Recognizing that the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding, [ ... ] Have agreed as follows: [ ... ]. » Article 3 « 1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. [ ... ]. » Article 8 « 1. States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference [ ... ]. » Article 9 « 1. States Parties shall ensure that a child shall not be separated from his or her parents against their will [ ... ]. [ ... ]. » Article 10 « 1. In accordance with the obligation of States Parties under Article 9, paragraph 1, applications by a child or his or her parents to enter or leave a State Party for the purpose of family reunification shall be dealt with by States Parties in a positive, humane and expeditious manner. States Parties shall further ensure that the submission of such a request shall entail no adverse consequences for the applicants and for the members of their family. [ ... ]. » THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 34. The applicants complained that the refusal of the Swiss authorities to grant their three children, R., L. and B., residence permits on the ground of family reunification in Switzerland and the decision to expel them to their home country was in breach of Article 8, which provides : “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 35. The Government contested that argument. A. Admissibility 36. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ submissions a. The applicants 37. The applicants claimed that the Swiss authorities had not complied with their obligations, inherent in Article 8 of the Convention, to allow R., L. and B. to reside legally in Switzerland, thereby enabling them to enjoy family life in that country. They submitted that their interest in their children being allowed to reside in Switzerland outweighed those of the respondent State in refusing that permission. They insisted that the three children, who had been living in Switzerland illegally since 15 August 2009, were well integrated in the respondent State and especially in the school system. Therefore, no public interest of the respondent State would justify the refusal of residence permits for the children. 38. With respect to the question of whether the refusal of the residence permits for the children was proportionate under Article 8 of the Convention, they reiterated the arguments made before the domestic authorities. In particular, they claimed that the children should be allowed to continue their life with their immediate family in Switzerland and that it would be difficult to maintain a family life at a distance. They argued that expulsion would lead to separation from the applicants, their parents, and their little brother E., and to their being to a significant extent uprooted from the environment the children had been living in for the last three years. They further held that important family reasons for a family reunification did indeed exist : B. and L. were enrolled in school in Switzerland and R. still depended not only emotionally but also financially on the applicants because, despite having obtained a school certificate, he had been denied access to a professional apprenticeship as he was an illegal resident in Switzerland. 39. The applicants also claimed that the Swiss authorities had disregarded completely the situation to which the three children would be exposed if sent back to Kosovo. Even if they were still socially and culturally attached to their home country, which the applicants contested, they disputed that there was any proof that the children ’ s grandmother or other relatives would be able to care for them. They explained that the grandmother only temporarily took care of the children between 2007 and 2009 on condition that they would join the applicants in Switzerland as soon as the second applicant had obtained residence permits for them. Therefore, in the event of expulsion to their country of origin, the children would be at risk of spending their lives in an orphanage. This would be contrary to the children ’ s best interests and in violation of their rights under Article 3(1), 8 (1), 9(1) and 10(1) of the United Nations Convention on the Rights of the Child (see above § 33 ). b. The Government 40. While the Government accepted that a family life within the meaning of Article 8(1) of the Convention existed between the applicants and their children L. and B., they disputed the existence of such a family life between the applicants and R. They argued that the latter, born in 1994, had reached the age of majority in the meantime and, aside from “normal affective ties with his parents ”, the applicants had not given any other reasons for being especially dependent on them. 41. The Government further held that the refusal of the residence permits for the three children on the ground of family reunification was proportionate under Article 8 of the Convention and in accordance with their right to control the entry of non-nationals into their territory. The Government reiterated that the applicants had deliberately concealed the existence of their three children when they entered Switzerland. The Swiss authorities had learned of their existence only on 4 December 2007. Furthermore, the applicants had not only concealed the existence of their three children but they had also brought them to Switzerland illegally. Instead of appealing against the decision of 28 April 2009, which had become final, they had presented the domestic authorities with a fait accompli. The Government thus maintained that in view of the applicants ’ wrongful conduct, the public interests of Switzerland outweighed their private interest in being reunited on its territory. 42. The Government further reasoned that it could not be concluded from the applicants ’ conduct that they had always wanted to be reunited with their children in Switzerland ( a contrario, Tuquabo-Tekle and Others v. the Netherlands, no. 60665/00, § 45, 1 December 2005 ). Their second application for family reunification had only been made on 1 June 2010 which was, according to the domestic law, outside the time ‑ limit in respect of R. and L. Furthermore, the applicants had not given any important family reason for a family reunification. The Government considered it as not established that the children ’ s grandmother or other relative in Kosovo could not take care of them, a fortiori because the two older siblings were of an age at which they could, at least in part, look after themselves. Moreover, the children had spent most of their life in Kosovo and had gone to school there. 43. The Government further maintained that Article 8 of the Convention did not impose on a State a general obligation to respect the choice by married couples of the country of their matrimonial residence and to authorise family reunion in its territory. The Government stated that it had been the applicants who had left their children behind in their home country. Furthermore, the grounds on which the first applicant had applied for asylum in 1997 had disappeared, as was illustrated by his frequent journeys to Kosovo even before 2007. Under those circumstances it could not be concluded that the issuing of residence permits for the three children in Switzerland was the only way to reunite the applicants ’ family. 44. The Government concluded that with consideration to the age of the children, their degree of dependency on the applicants, and their social integration in Switzerland and in Kosovo, as well as to the conduct of the applicants, the domestic authorities had not overstepped the margin of appreciation they had under Article 8 of the Convention. 2. The Court ’ s assessment a) The existence of a family life according to Article 8 of the Convention 45. The Court notes that the parties agreed that there was a family life within the meaning of Article 8(1) of the Convention between the applicants and their daughters L. and B. In contrast, the Government disputed that a family life as set out in Article 8 of the Convention still existed between the applicants and their older son R. With reference to the case-law of the Court they argued that the relationship between R., who had reached the age of majority during the proceedings before this Court, and his parents did not fall within the protective scope of Article 8 because no “[ ... ] additional factors of dependence, other than normal emotional ties” had been established ( see Emonet and Others v. Switzerland, no. 39051/03, § 35, 13 December 2007 ). The applicants argued in opposition to this that R. was indeed still dependent on them, because as an illegal resident in Switzerland he was excluded from the labour market and was in need of their financial support. 46. The Court considers that when deciding whether a relationship can be said to amount to “family life”, a number of factors may be relevant ( see Emonet and Others, cited above, § 35 ). In view of the following considerations (infra §§ 59-62 ), the issue of whether the applicants ’ relationship with R. still falls under the protection of Article 8 of the Convention may be left open. b) Scope of the obligation under Article 8 of the Convention i) General principles 47. The Court considers that the present case hinges on the question whether the authorities of the respondent State has the duty to allow R., L. and B. to reside legally on its territory with their parents and their younger brother, and thus should not expel them to their country of origin and should allow them to develop family life in Switzerland. 48. The Court notes that the essential object of Article 8 is to protect the individual against arbitrary action by the public authorities. There may in addition be positive obligations inherent in effective “respect” for family life. However, the boundaries between the State ’ s positive and negative obligations under this provision do not lend themselves to precise definition. The applicable principles are, nonetheless, similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation (see Ahmut v. the Netherlands, 2 8 November 1996, § 63, Reports of Judgments and Decisions 1996 ‑ VI ). 49. In order to establish the scope of the State ’ s obligations, the Court must examine the facts of the case in the light of the applicable principles, which it has previously set out as follows (see Gül v. Switzerland, 19 February 1996, § 38, Reports 1996 ‑ I, and Ahmut, cited above, § 67 ): (a) the extent of a State ’ s obligation to admit to its territory relatives of settled immigrants will vary according to the particular circumstances of the persons involved and the general interest; (b) as a matter of well-established international law and subject to its treaty obligations, a State has the right to control the entry of non-nationals into its territory; (c) where immigration is concerned, Article 8 cannot be considered to impose on a State a general obligation to respect the choice by married couples of the country of their matrimonial residence and to authorise family reunification in its territory. 50. In this context it must be borne in mind that cases like the present one do not only concern immigration, but also family life, and that it involves aliens - the applicants - who already had a family life which they left behind in another country until they achieved settled status in the host country (contrast Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May 1985, § 68, Series A no. 94 ). In its assessment, the Court must therefore determine whether, in refusing to issue residence permits for the family members, the Government can be said to have struck a fair balance between the applicants ’ interest in developing a family life in the respondent State on the one hand and the State ’ s own interest in controlling immigration on the other. 51. The Court has further held that there is a broad consensus, including in international law, in support of the idea that in all decisions concerning children, their best interests must be paramount (see Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 135, ECHR 2010 ). For that purpose, in cases regarding family reunification the Court pays particular attention to the circumstances of the minor children concerned, especially their age, their situation in their country of origin and the extent to which they are dependent on their parents (see Tuquabo-Tekle, cited above, § 44). ii) Application of the principles in the present case 52. Firstly, the Court notes that the applicants did not appeal against the first decision of the Migration Office, delivered on 28 April 2009, which refused them the right to family reunification with their three children on Swiss territory. That decision became final. With respect to that decision the applicants have not exhausted domestic remedies. For the assessment of the present case, the Court is therefore bound by the facts that led to the present application, which originated in the applicants ’ second request for family reunification to the Migration Office on 1 June 2010. 53. The Court notes that the Government have not disputed that the applicants made efforts to obtain residence permits for their three children in Switzerland. As they did not appeal against the first negative decision of the Migration Office, the Government however argued that it had taken the applicants quite a while to apply again for family reunification and that the second application had been outside the time - limit in domestic law. Therefore, in the Government ’ s view, it could be doubted whether it had always been the applicants ’ real intention to be reunited with their children in Switzerland. 54. The Court has previously held that parents who leave children behind while they settle abroad cannot be assumed to have irrevocably decided that those children are to remain in the country of origin permanently and to have abandoned any idea of a future family reunification ( see Sen v. the Netherlands, no. 31465/96, § 40, 21 December 2001 ). Contrary to the Government ’ s contentions, it appears clear to the Court that in the present case the applicants had always intended that their three children should join them in Switzerland once the second applicant had settled there. The second applicant applied for family reunification only three months after obtaining a residence permit herself. While the question why the applicants did not appeal against the first negative decision of the Migration Office remains open, that question does not allow the conclusion that they abandoned the idea of family reunification at that time. To enable them to live with their children despite all this, they subsequently brought them illegally to Switzerland and applied again for residence permits for them. 55. As regards the question of to what extent it is true that the three children ’ s settling in Switzerland would be the most appropriate means for the applicants to develop family life together, the Court observes that the facts of the present application have to be compared to similar cases in which it has had to evaluate whether the domestic authorities breached Article 8 of the Convention in refusing to issue residence permits on the ground of family reunification. 56. The Court has previously rejected cases involving failed applications for family reunification and complaints under Article 8 where the children concerned had in the meantime reached an age where they were presumably not as much in need of care as young children and were increasingly able to fend for themselves. In cases of this nature, the Court has also examined whether the children have grown up in the cultural and linguistic environment of their country of origin, whether they have other relatives there, and whether it could be expected that the parents would return to that country (see, for instance, Benamar v. the Netherlands (dec.), no. 43786/04, 5 April 2005; I.M. v. the Netherlands (dec.), no. 41266/98, 25 March 2003; and Chandra and Others v. the Netherlands (dec.), no. 53102/99, 13 May 2003). 57. By contrast, in Sen (cited above), which concerned parents who had left their daughter behind in the care of relatives in their home country of Turkey to settle in the Netherlands, the Court established that the applicants were facing major obstacles to a return to their home country since they had been legally resident in the Netherlands for many years; their two youngest children had been born and brought up there and were attending school. With regard to those children, who had minimal ties with their home country, and in view of the young age of the daughter who had remained in Turkey (she was nine years old when the application to the domestic authorities was made), the Court considered it more appropriate to let the daughter come to the Netherlands to be reunited with her family there. The refusal of a residence permit for the daughter had therefore been in breach of Article 8 of the Convention ( ibid. §§ 39-42). 58. Moreover, in the case of Tuquabo-Tekle and Others, (cited above, §§ 47-52), the Court found a violation of Article 8 of the Convention regarding the refusal of a residence permit on the ground of family reunification to Mrs Tuquabo-Tekle ’ s daughter, who was, at the time of the domestic application, already fifteen years old. As well as establishing that the parents were facing major obstacles to a return to their country of origin, Eritrea, the Court ruled that the particular circumstances of the daughter ’ s situation in her home country - her grandmother, who was taking care of her, had taken her out of school and she had reached an age where she could be married off - were such that she should be allowed to be reunited with her family in the Netherlands. The Court held in that case that the daughter ’ s age should not be the sole element that led to a different assessment from that arrived at in the case of Sen ( cited above), in which the daughter had been some years younger. 59. Turning to the present application, the Court notes that as, inter alia, in the case of Sen (cited above), the applicants are living where they are because of their conscious decision to settle in Switzerland rather than remain in their home country. After their marriage in 2007, the second applicant joined her husband, the first applicant, who had already been living in Switzerland for ten years and was in possession of a permanent residence permit, with the aim of establishing a family life there. Subsequently, a fourth child was born to them and the second applicant also received a permanent residence permit for Switzerland. Nevertheless, the applicants were not prevented from maintaining the degree of family life they had had for many years before 2007. After the first applicant had moved to Switzerland in 1997, he had visited the second applicant and his children regularly and had a third child with the second applicant in 2003. He had also supported them financially. 60. As regards the situation of the three children, the Court considers that, despite the applicants ’ contentions, they must still have solid social and linguistic ties to their home country, where they grew up and went to school for many years. Although the children are now also well integrated in Switzerland, the Court is of the view that their period of stay in the respondent State is not long enough for them to have completely lost their ties with their country of origin. With regard to the fact that their grandmother looked after them for more than two years and is, after all, still living there now, it must also be assumed that they have strong family ties to Kosovo. Furthermore, the applicants have not disputed that L. ’ s health has in fact improved to the extent that it would not be a hindrance for her to return to her home country, and, with regard to the alleged financial dependence of R. on the applicants, the Court cannot see why he, as well as his sister, could not be supported at a distance, especially when it is considered that they are now 19 and 17 years old respectively. Lastly, with particular regard to the youngest of the three children, B., the Court notes that the applicants are not prevented from travelling - or even staying - with her in Kosovo in order to ensure that she is provided with the necessary care and education so that her best interests as a child are safeguarded. 61. In conclusion, and also taking into account the applicants ’ conduct in the domestic proceedings, which was not irreproachable, it cannot be found that the respondent State has failed to strike a fair balance between the applicants ’ interest in family reunification on the one hand and its own interest in controlling immigration on the other. Although it may well be that the applicants would prefer to maintain and intensify their family links with the three children in Switzerland, Article 8 does not guarantee a right to choose the most suitable place to develop family life (see above, §§ 48, 49). The respondent State has therefore not overstepped the margin of appreciation it enjoys under Article 8 of the Convention. 62. It follows that no violation of Article 8 can be found on the facts of the present case. II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 63. The applicants complained that expulsion of the children to their home country would be in breach of Article 3 of the Convention, because they would be separated from their immediate family and sent to their home country, where they have no one to care for them. They would probably be sent to an orphanage and would depend on social services in Kosovo. Their expulsion would therefore put them at risk of inhuman or degrading treatment contrary to Article 3 of the Convention. 64. The Court notes that, apart from the separation from their parents and youngest brother, the applicants have not given any other reasons why the children would be at risk of inhuman or degrading treatment if they were returned to their home country. The Court observes that these arguments are essentially the same as those brought forward by the applicants under Article 8 of the Convention. The Court does not find any appearance of a violation of Article 3 of the Convention. 65. It follows that this part of the application must be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention. | The Court held that there had been no violation of Article 8 (right to respect of family life) of the Convention, considering in particular that the applicants were living in Switzerland because of their conscious decision to settle there rather than in Kosovo, and that their three children had not lived in Switzerland for long enough to have completely lost their ties with their country of birth, where they grew up and were educated for many years. Moreover the children still had family ties in Kosovo, the older two children, 17 and 19 years old, were of an age that they could be supported at a distance, and there was nothing to prevent the applicants traveling to, or staying with the youngest child, 10 years old, in Kosovo to safeguard her best interests as a child. Also taking into account the at times untruthful conduct of the applicants in the domestic proceedings, the Court concluded that the Swiss authorities had not overstepped their margin of appreciation under Article 8 of the Convention in refusing to grant residence permits to their children. |
473 | Obligation to report suspicions | III. RELEVANT EUROPEAN UNION LAW A. Directives 91/308/EEC, 2001/97/EC and 2005/60/EC 1. Directives 91/308/EEC and 2001/97/EC 20. On 10 June 1991 the Council of the European Communities adopted Directive 91/308/EEC on the prevention of the use of the financial system for the purpose of money-laundering. The aim was to oblige credit and financial institutions to identify their customers and all transactions in excess of 15,000 euros (EUR), to “examine with special attention” any suspicious transaction they considered likely to be related to money-laundering, and to report any sign of money-laundering to the relevant authorities. It was amended by Directive 2001/97/EC of 4 December 2001, which broadened the definition of laundering and extended the obligation to identify clients and report suspicious transactions to a series of professionals outside the financial sector, and in particular to “independent legal professionals”. 2. Directive 2005/60/EC 21. Directive 91/308/EEC, as amended, was repealed by Directive 2005/60/EC of 26 October 2005 on the prevention of the use of the financial system for the purpose of money-laundering and terrorist financing, which reproduces and adds to the text of the earlier Directive. Recital 19 specifies that “independent legal professionals ... as defined by the member States ... are subject to the provisions of [the] Directive when participating in financial or corporate transactions, including providing tax advice, where there is the greatest risk of the services of those legal professionals being misused for the purpose of laundering the proceeds of criminal activity or for the purpose of terrorist financing”. Article 2 § 1 (3) (b) specifies that the Directive applies to them when, “acting in the exercise of their professional activities”, “they participate, whether by acting on behalf of and for their client in any financial or real-estate transaction, or by assisting in the planning or execution of transactions for their client concerning the: (i) buying and selling of real property or business entities; (ii) managing of client money, securities or other assets; (iii) opening or management of bank, savings or securities accounts; (iv) organisation of contributions necessary for the creation, operation or management of companies; (v) creation, operation or management of trusts, companies or similar structures”. 22. The Directive calls in certain cases for customer due diligence measures, including identifying and verifying the identity of the customer and the beneficial owner and obtaining information on the purpose and intended nature of the business relationship (Article 8 § 1 (a), (b) and (c)). Member States are in principle obliged to require that, where the institution or person concerned is unable to comply with its obligations, they “may not carry out a transaction through a bank account, establish a business relationship or carry out the transaction, or shall terminate the business relationship, and shall consider making a report to the financial intelligence unit (FIU) in accordance with Article 22”. This obligation does not apply, however, “in situations when ... independent legal professionals ... are in the course of ascertaining the legal position for their client or performing their task of defending or representing that client in, or concerning judicial proceedings, including advice on instituting or avoiding proceedings” (Article 9 § 5). 23. It also enshrines the obligation to report suspicions, specifying that “member States shall require the institutions and persons [concerned] ... to cooperate fully”, “by promptly informing the FIU, on their own initiative, where [they] know, suspect or have reasonable grounds to suspect that money-laundering or terrorist financing is being or has been committed or attempted” and “by promptly furnishing the FIU, at its request, with all necessary information, in accordance with the procedures established by the applicable legislation” (Article 22 § 1). 24. However, where “independent legal professionals” are concerned, “member States may ... designate an appropriate self-regulatory body of the profession concerned as the authority to be informed in the first instance in place of the FIU”, in which case the designated self-regulatory body must “forward the information to the FIU promptly and unfiltered” (Article 23 § 1). 25. And member States are not obliged to apply the obligations laid down in Article 22 to ( inter alia ) “independent legal professionals ... with regard to information they receive from or obtain on one of their clients, in the course of ascertaining the legal position for their client or performing their task of defending or representing that client in, or concerning judicial proceedings, including advice on instituting or avoiding proceedings, whether such information is received or obtained before, during or after such proceedings” (Article 23 § 2). 26. Lastly, according to recital 48, “[n]othing in this Directive should be interpreted or implemented in a manner that is inconsistent with the European Convention on Human Rights”. B. Judgment of the Court of Justice of the European Communities (Grand Chamber) in the case of Ordre des barreaux francophones et germanophone and Others v. Conseil des ministres, 26 June 2007; C ‑ 305/05) 27. In 2005, in connection with an application lodged by various Belgian Bar associations to have certain legal provisions transposing Directive 2001/97/EC annulled, the Belgian Constitutional Court referred the following question to the Court of Justice of the European Communities for a preliminary ruling: “Does Article 1, [§ 2], of Directive 2001/97 ... breach the right to a fair trial guaranteed by Article 6 of the [Convention] ... in so far as the new Article 2 bis, [§ 5] which it adds to Directive 91/308/EEC imposes the inclusion of independent legal professionals – no exception being made for lawyers – in the scope of the said Directive, which, in substance, requires certain people and institutions to inform the authorities responsible for combating money-laundering of any sign that may be an indication of money-laundering (Article 6 of Directive 91/308/EEC, replaced by Article 1, [§ 5], of Directive 2001/97/EC)?” The Bar associations submitted in particular that in extending to lawyers the obligation to inform the competent authorities of any transactions they knew or suspected were linked to money-laundering, the legislation concerned was in breach of the principles of professional confidentiality and the independence of the lawyer, which are essential aspects of the fundamental right to a fair trial and the rights of the defence. 28. In its judgment of 26 June 2007, the Court of Justice disagreed. 29. Firstly, it pointed out that fundamental rights formed an integral part of the general principles of law which it upheld, drawing on the constitutional traditions shared by the member States and the guidance given by the international human rights protection treaties to which the member States were party or with which they cooperated, among which the European Convention on Human Rights was “particularly significant”. It concluded that the right to a fair trial enshrined, inter alia, in Article 6 of the Convention was a fundamental right which the European Union respected as a general principle by virtue of Article 6 § 2 of the Treaty on European Union. Next, it noted that under the Directive in question the obligations to report and cooperate applied to lawyers only when they were helping their clients to prepare or carry out certain types of transaction, mainly financial or real-estate operations, or when they were acting in the name and on behalf of their clients in such financial transactions or real-estate operations. It pointed out that as a general rule these activities, by their very nature, took place in contexts that were not related to any judicial proceedings and therefore did not concern the right to a fair trial. The Court of Justice further noted that where a lawyer’s assistance with a transaction was requested in connection with the defence or representation of a client in judicial proceedings, or advice on instituting or avoiding proceedings, the Directive exempted the lawyer from these obligations. It considered that this exemption protected the client’s right to a fair trial. It also stated that the requirements relating to the right to a fair trial did not preclude the obligations of information and cooperation from being imposed on lawyers acting specifically in the situations listed in the preceding paragraph where those obligations were “justified by the need ... to combat money-laundering effectively, in view of its evident influence on the rise of organised crime, which itself [was] a particular threat to society in the member States”. IV. RELEVANT DOMESTIC LAW A. The Monetary and Financial Code 30. The above-mentioned Directives have been transposed into French law and included (and amended several times) in the Monetary and Financial Code. 31. The obligations of customer due diligence are codified in Articles L. 561-5 to L. 561-14-2, and those concerning reporting in Articles L. 561-15 to L. 561-22 (in the present version of the Code). 32. These provisions apply to various organisations and professionals listed in Article L. 561-2 of the Code, including lawyers in the Conseil d’Etat and the Court of Cassation, and lawyers and avoués [1] in the courts of appeal when, “in the context of their business activity ... 1. They participate for and on behalf of their client in any financial or real-estate transaction or act as a trustee; 2. They assist their client in the preparation or execution of transactions relating to: (a) the buying and selling of real estate or businesses; (b) the management of funds, securities or other assets belonging to their client; (c) the opening of current accounts, savings accounts or securities accounts, or of insurance policies; (d) the organisation of the contributions required to create companies; (e) the formation, administration or management of companies; (f) the formation, administration or management of trusts governed by Articles 2011 to 2031 of the Civil Code or by a foreign legal system, or of any other similar structure; (g) the formation or administration of endowment funds (Article L. 561-3 I). They do not apply to them, however, when the activity relates to judicial proceedings, whether the information they have was received or obtained before, during or after said proceedings, including any advice given with regard to the manner of initiating or avoiding such proceedings, nor where they give legal advice, unless said information was provided for the purpose of money-laundering or terrorist financing or with the knowledge that the client requested it for the purpose of money-laundering or terrorist financing” (Article L. 561-3 II). 33. Article R. 563-3 provided for internal procedures for implementing the legal obligations to be set in place, as appropriate, by ministerial decree or through professional regulations approved by the Minister. 1. Due diligence 34. The obligation of due diligence means that before entering into a business relationship with their client the person or entity concerned must identify the client and, where applicable, the effective beneficiary of the business relationship, and verify proof of identity (Article L. 561-5 I). As an exception, where the risk of money-laundering or of terrorist financing appears to be low, the identity of the client and, where applicable, that of the effective beneficiary, may be verified when the business relationship is in the process of being established (Article L. 561 ‑ 5 II). Information relating to the object and nature of the business relationship and any other piece of relevant information concerning the client must also be gathered before the business is transacted. Throughout its duration the persons or entities concerned are required to apply “constant due diligence” to the business relationship, within the limits of their rights and obligations, and carry out a “thorough examination of the transactions executed, taking care to ensure that they are consistent with the latest information they have concerning their client” (Article L. 561-6). 35. Where a party is unable to identify its client or to obtain information on the object and nature of the business relationship, it must not execute any transaction, regardless of the particulars, or establish or pursue any business relationship. Where it has been unable to identify its client or to obtain information on the object and nature of the business relationship, and the relationship has nevertheless been established pursuant to Article L. 561 ‑ 5 II, it must terminate it (Article L. 561-8). 2. The obligation to report 36. The persons or entities concerned must declare to their country’s financial intelligence unit (“the FIU”) the sums entered in their books or the transactions relating to sums which they know, suspect or have good reasons for suspecting are the proceeds of an offence punishable by a custodial sentence of more than one year or are destined for terrorist financing (Article L. 561-15 I). They must also declare the sums or transactions which they know, suspect or have good reasons for suspecting are the proceeds of a tax fraud, where at least one of the following criteria defined by Article D. 561-32-1 II is present (Article L. 561-15 II): “1. The use of a front company, whose activity is inconsistent with its stated object or which has its registered office in a State or territory which has not signed a tax agreement with France giving it access to bank information, as identified from a list published by the tax authorities, or at the private address of one of the beneficiaries of the suspicious operation, or in premises occupied by several businesses within the meaning of Article L. 123-11 of the Commercial Code; 2. Financial operations made by a company whose articles of association have undergone frequent changes not justified by the economic situation of the company concerned; 3. Recourse to middlemen acting in appearance only for the companies or individuals involved in financial operations; 4. Carrying out financial operations inconsistent with the usual activities of the company or suspicious operations in sectors sensitive to carousel-type VAT fraud, such as information technology, telephones, electronic goods, household appliances, hi-fi and video; 5. The sudden, unexplained sharp increase over a short period in the amounts credited to newly opened or hitherto inactive accounts, possibly linked to a sharp increase in the number and volume of transactions or the use of previously dormant or inactive companies whose articles of association have recently undergone changes; 6. The presence of anomalies in the invoices or order forms presented as justification for financial operations, such as a missing company registration or [French] SIREN or VAT number, invoice number, address or date; 7. The unexplained use of payable-through accounts which register large numbers of debit and credit operations while the balance remains close to zero; 8. The frequent withdrawal of cash from or deposit of cash in a business account which is not justified by the volume or nature of the economic activity; 9. Difficulty in identifying the end beneficiaries and the links between the origin and destination of funds because of the use of intermediate accounts or non-financial business accounts such as payable-through accounts, or the use of complex legal and financial business structures which tend to obscure management and administrative machineries; 10. International financial operations with no apparent legal or economic justification, often limited to the simple transit of funds from or to other countries, when the countries concerned are States or territories referred to in 1. above; 11. Refusal or inability of the client to supply proof of the origin of funds received or justification of payments made; 12. Transfer of funds to a foreign country, followed by repatriation thereof in the form of loans; 13. Organisation of insolvency by the rapid sale of assets to persons or legal entities or on terms that reflect a clear and unjustified imbalance in the selling price; 14. Regular use by individuals living and having an activity in France of accounts held by foreign companies; 15. The deposit by a private individual of funds unrelated to his known activity or assets; 16. The sale of real estate at a grossly undervalued price.” They are also required to declare to the FIU any transaction in respect of which the identity of the principal or of the effective beneficiary or of the grantor of a fiduciary fund or of any other management instrument of a special-purpose trust remains dubious despite the steps taken pursuant to Article L. 561 ‑ 5 (Article L. 561-15 IV). A decree of the Conseil d’Etat specifies the form this declaration must take. 37. The persons and entities concerned must refrain from executing any transaction which they suspect may be linked to money-laundering or to terrorist financing until such time as they have made the report referred to above (Article L. 561-16). Where a transaction which should have been the subject of the report referred to in Article L. 561-15 has already been executed on account of it being impossible to defer its execution, or because its deferral could have obstructed investigations relating to a suspected money-laundering or terrorist financing transaction, or because it did not appear to be subject to said report until after its execution, the person or entity must inform the FIU thereof without delay. 38. As an exception, advocates attached to the Conseil d’Etat and the Court of Cassation, and counsel before the court of appeal send their reports not to the FIU but, as applicable, to the President of the Bar Council of the Conseil d’Etat and of the Court of Cassation, to the Chairman of the Bar to which the advocate belongs or to the Chairman of the professional body of which the counsel is a member. As soon as the conditions set forth in Article L. 561-3 are met, the said authorities send the report to the FIU in conformity with the terms set forth in a decree of the Conseil d’Etat (Article L. 561-17). 39. The report concerned is confidential. It is prohibited to divulge its existence and content and to disclose information regarding its outcome. Disregarding the prohibition on disclosure is punishable by a fine of EUR 22,500 (Article L. 574 ‑ 1; inserted in the Monetary and Financial Code by Order no. 2009-104 of 30 January 2009); the fact of the advocates concerned endeavouring to dissuade their client from taking part in an illegal activity does not constitute prohibited disclosure (Article L. 561-19). 3. The national Financial Intelligence Unit (“the FIU”) 40. The FIU (known as “Tracfin” in France) is an administrative investigation department of the Ministry of Finance, composed of specially selected officials. Its main purpose is to collect, analyse, develop and make use of any information likely to establish the origin or the destination of the sums or the nature of the transactions that have been the subject of a report. Where its investigations reveal acts likely to relate to the laundering of the proceeds of an offence punishable by a custodial sentence in excess of one year or to terrorist financing, it refers the matter to the public prosecutor via a memorandum (Article L. 561 ‑ 23). 41. The FIU may directly ask the persons concerned to disclose documents kept in connection with the obligation of due diligence. As an exception to the above, requests for disclosure of documents made to advocates attached to the Conseil d’Etat and to the Court of Cassation and to advocates and counsel attached to the courts of appeal are submitted by the FIU, as applicable, to the President of the Bar Council of the Conseil d’Etat and of the Court of Cassation, or the Chairman of the Bar or the professional body to which the advocate or counsel belongs. Having ensured that the provisions of Article L. 561-3 have been complied with, these persons then forward the documents thus received to the FIU (Article L. 561-26). 4. Internal procedures and auditing 42. The persons and entities concerned are required to put systems in place to assess and manage the risks of money-laundering and of terrorist financing, and to provide their staff with regular training and information to ensure compliance with the obligations of due diligence and reporting (Articles L. 561-32 and L. 561-33). Article R. 563-3 (repealed by Decree no. 2009-1087 of 2 September 2009) provided for the internal procedures to be defined by order of the relevant ministry, by professional rules and regulations approved by the ministry concerned, or by the general regulations of the financial markets supervisory authorities. 5. Disciplinary proceedings 43. Where, as a result of either a serious lack of due diligence or a failure in the organisation of its internal auditing procedures, an advocate attached to the Conseil d’Etat or the Court of Cassation or an advocate or counsel attached to the courts of appeal has failed to comply with these obligations, the competent supervisory authority will institute disciplinary proceedings founded on the professional or administrative rules and shall notify the public prosecutor attached to the Court of Cassation or the court of appeal thereof (Article L. 561-36 III). B. The judgment of the Conseil d’Etat of 10 April 2008 44. In a judgment of 10 April 2008 (no. 296845), the Conseil d’Etat found Directive 2001/97/EC of 4 December 2001 and the Law of 11 February 2004 transposing it compatible with Articles 6 and 8 of the Convention. 45. Concerning the Directive, the Conseil d’Etat first pointed out that the judgment of the Court of Justice of the European Communities in the case of Ordre des barreaux francophones et germanophone and Others had found that it was not in breach of the requirements of the right to a fair trial guaranteed by Article 6 of the Convention in so far as the obligation to cooperate and report excluded information obtained by lawyers in the course of their activities linked to judicial proceedings. The same judgment showed that information obtained by a lawyer evaluating a client’s legal situation was also excluded from the scope of these obligations, the only exceptions being where the lawyer was taking part in money-laundering activities, or the legal advice was provided for money-laundering purposes, or the lawyer knew that the client was seeking legal advice for money- laundering purposes. That being so, and regard being had to the general interest served by combating money-laundering, the Directive “did not violate the fundamental right to professional confidentiality protected by Article 8 of the Convention ..., which permits interference by the authorities with the right to respect for private and family life when necessary in the interests of public safety, for the prevention of disorder or crime”. 46. As to the legislation, the Conseil d’Etat found that it was an accurate transposition of the Directive and that, as such, it was not incompatible with the fundamental rights guaranteed by Articles 6 and 8 of the Convention. THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 47. The applicant complained that because lawyers were under obligation to report suspicious operations, as a lawyer he was required, subject to disciplinary action, to report people who came to him for advice. He considered this to be incompatible with the principles of lawyer-client privilege and professional confidentiality. He relied on Article 8 of the Convention, which reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 48. The Government disagreed. A. Admissibility 1. The applicant’s victim status 49. As their main submission, the Government maintained that the applicant could not claim to be a “victim” within the meaning of Article 34 of the Convention. They argued that his rights had not actually been affected in practice, highlighting that he did not claim that the legislation in question had been applied to his detriment, but simply that he had been obliged to organise his practice accordingly and introduce special internal procedures. The applicant was in fact asking the Court to examine in abstracto the conformity of a domestic law with the Convention. As to his status as a “potential victim” within the meaning of the Court’s case-law, the Government warned against the extensive application of this concept, which would open the door to actio popularis, would go against the intention of the authors of the Convention, would considerably increase the number of potential applicants and would be difficult to reconcile with the obligation to exhaust all domestic remedies. In their submission only very exceptional circumstances should, in particular cases, be taken into account by the Court to broaden the notion of victim status. There were no such circumstances in the present case. 50. The applicant invited the Court to find that he could claim to be a victim of the violation of the Convention of which he complained. He pointed out that according to the Court’s case-law a person was entitled to claim that a law violated his rights in the absence of any individual measure of implementation if it required him to either modify his conduct or risk being prosecuted, or if he belonged to a class of people likely to be directly affected by it. As a lawyer he belonged to a class of people likely to be directly affected by the legislation: he was bound, subject to disciplinary action, by obligations of due diligence and report and obliged to modify his conduct and organise his practice by introducing special internal procedures. As a lawyer specialising in financial and tax law he was particularly affected by these obligations and threatened by the consequences of failure to comply. 51. The Court points out that in order to be able to lodge an application in pursuance of Article 34 of the Convention a person must be able to claim to be a “victim” of a violation of the rights enshrined in the Convention: to claim to be a victim of a violation, a person must be directly affected by the impugned measure. The Convention does not envisage the bringing of an actio popularis for the interpretation of the rights set out therein, or permit individuals to complain about a provision of national law simply because they consider, without having been directly affected by it, that it may contravene the Convention (see Norris v. Ireland, 26 October 1988, § 31, Series A no. 142, and among many other authorities, Burden v. the United Kingdom [GC], no. 13378/05, § 33, ECHR 2008). It is, however, open to a person to contend that a law violates his rights, in the absence of an individual measure of implementation, and therefore to claim to be a “victim” within the meaning of Article 34 of the Convention, if he is required to either modify his conduct or risk being prosecuted, or if he is a member of a class of people who risk being directly affected by the legislation (see, among other authorities, Marckx v. Belgium, 13 June 1979, § 27, Series A no. 31; Johnston and Others v. Ireland, 18 December 1986, § 42, Series A no. 112; Norris, cited above, § 31; and Burden, cited above, § 34). 52. In the instant case, the applicant has not been affected by any individual measure based on the National Bar Council’s decision of 12 July 2007 “adopting regulations on internal procedures for implementing the obligation to combat money-laundering and terrorist financing, and an internal supervisory mechanism to guarantee compliance with those procedures”. However, the Court notes that the decision concerned, which was adopted in application of section 21-1 of the Law of 31 December 1971, which empowers the National Bar Council to pass general measures to harmonise the rules and practices of the legal profession, has the force of law. It further notes that, like the obligation to show due diligence and report suspicions, it affects all French lawyers, so the applicant belongs to a class of people who risk being directly affected by it. In particular, for example, if he fails to report suspicious activities as required he will expose himself by virtue of this text to disciplinary sanctions up to and including being struck off. The Court also considers credible the applicant’s suggestion that, as a lawyer specialising in financial and tax law, he is even more concerned by these obligations than many of his colleagues and exposed to the consequences of failure to comply. In fact he is faced with a dilemma comparable, mutatis mutandis, to that which the Court identified in Dudgeon v. the United Kingdom (22 October 1981, § 41, Series A no. 45) and Norris (cited above, §§ 30-34): either he applies the rules and relinquishes his idea of the principle of lawyer-client privilege, or he decides not to apply them and exposes himself to disciplinary sanctions and even being struck off. 53. In view of the above, the Court accepts that the applicant is directly affected by the impugned provisions and may therefore claim to be a “victim” of the alleged violation of Article 8. 2. The six-month time-limit 54. According to the Government, even assuming that the applicant could claim to be a “victim”, it should be noted that the application was lodged outside the six-month time-limit provided for in Article 35 § 1 of the Convention. In their submission the time-limit started to run on the date of the judgment of 10 April 2008 in which the Conseil d’Etat ruled on the conformity with Article 8 of the Convention of Directive 2001/97/EC of 4 December 2001 and the Law of 11 February 2004 transposing it. 55. The applicant replied that he had respected the time-limit under Article 35 § 1 of the Convention because he had lodged his application with the Court in the six months following the judgment given by the Conseil d’Etat on 23 July 2010 in the action he had brought before that court to have the above-mentioned regulatory decision set aside. 56. The Court recalls that what matters as far as Article 35 § 1 of the Convention is concerned is that the applicant has afforded the respondent State an opportunity to prevent or put right the alleged violation by exhausting the appropriate domestic remedies, and then lodged an application with the Court within a period of six months from the date on which the final decision was taken. 57. The Court notes that the practical details of the obligation to report suspicions were set out in the National Bar Council’s decision of 12 July 2007, which decision provides the basis for the disciplinary measures to be taken against lawyers who fail to comply. In submitting his complaint under Article 8 to the Conseil d’Etat in an application to have the decision concerned set aside, the applicant gave that court an opportunity to rule on his complaint in the first instance, which indeed it did (see paragraphs 44-46 above). The applicant therefore used a domestic remedy which was appropriate in the circumstances of the case. The judgment pronounced by the Conseil d’Etat on 23 July 2010 at the end of those proceedings was therefore the final domestic decision for the purposes of the six-month time-limit. As the application was lodged on 19 January 2011, it was not lodged out of time. 3. Conclusion 58. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, and that it is not inadmissible on any other grounds. It therefore declares it admissible. B. The merits 1. The parties’ submissions (a) The applicant 59. Noting that the Government did not dispute that Article 8 of the Convention protected legal professional privilege, the applicant maintained that the interference he complained of was not “in accordance with the law” within the meaning of that provision. He submitted that the regulations in question were unclear: they required lawyers to report “suspicions” without defining that term; the scope of the “activities” to which they applied was vague and it was difficult for a lawyer to segment or compartmentalise his activities into those which were concerned and those which were not. He added that the confidentiality of lawyer-client relations was indivisible: the law governing the legal professions specified that it applied both to defence and to advisory activities and concerned all the activities of lawyers and the files they dealt with. 60. The applicant did not dispute that the interference in issue pursued one of the legitimate aims set out in the second paragraph of Article 8. He did consider, however, that it was not “necessary in a democratic society” in order to achieve that aim. 61. The applicant considered that the presumption of equivalent protection established in the Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland judgment ([GC], no. 45036/98, ECHR 2005 ‑ VI – hereinafter “ Bosphorus ”) was not applicable. He considered that his case differed from Bosphorus and other cases where the Court had accepted that European Union membership afforded equivalent protection, in so far as those cases concerned the implementation of a regulation by a member State, not of a directive. With regulations, he argued, the member States had no margin of appreciation, whereas in implementing directives they did. He also emphasised that, unlike the Convention system of human rights protection, the positive law of the European Union made no provision for individuals to be able to apply directly to the Luxembourg Court. 62. More specifically, the machinery of Community law had not permitted the specific examination of the complaint under Article 8 of the Convention which the applicant had lodged with the Court: this was firstly because the Conseil d’Etat had rejected his request to refer the matter to the Court of Justice of the European Union for a preliminary ruling; and, secondly, because in the above-cited Ordre des barreaux francophones et germanophone and Others case that court had examined the issue only from the point of view of the right to a fair trial. This, he argued, showed that the European Union system did not afford scrutiny and protection equivalent to that offered by the Convention. 63. The applicant considered that when examining the question of “necessity” it was necessary to take into account the role played by lawyers – the specificity of which the Court had highlighted in the context of Article 10 of the Convention – as well as the importance of confidentiality in the practice of their profession, which was what protected the confidence that existed between them and their clients, as well as individual freedom and the smooth functioning of justice. In his opinion, requiring lawyers to report their suspicions was asking them to take action that was in contradiction with the social purpose of their profession and shed doubt on the traditional role they played. He further pointed out that while the Court had built its case-law protecting the professional confidentiality of lawyers on Article 8 of the Convention, it had also deemed it to be covered by Article 6 § 1. He laid particular emphasis on the link between confidentiality and the right of the accused persons they defend not to incriminate themselves, which the Court itself had highlighted in the André and Another v. France judgment (no. 18603/03, 24 July 2008). He added that to require lawyers to report their suspicions meant that they were expected to divulge personal information about their clients – which fell within the scope of Article 8 –, and that prohibiting them from informing the person they were reporting deprived that person not only of the right to receive information but also of the possibility of correcting it or having it deleted if the suspicion proved to be unfounded. The obligation would thus have repercussions on the fundamental rights of others. 64. The applicant did not deny the need to combat money-laundering, but he did consider that it was disproportionate, in pursuit of that aim, to oblige lawyers, as a preventive measure, to report any suspicions regarding their clients’ activities to a financial intelligence unit (“the FIU” – known as “Tracfin” in France), thereby practising what one might call “self-incrimination by proxy” and breaching their duty of confidentiality. 65. According to the applicant the obligation to report made lawyers contributors to a financial and fiscal data centralisation unit, which was a departure from the averred legitimate aim. He had reached that conclusion after observing that 98% of the nominal information lawyers were obliged to report was used for that purpose rather than to prevent crime. He referred in this connection to the statistics published by the FIU, which revealed, for example, that in 2010 it had received 20,252 reports, including 19,208 reports of suspicions submitted by the legal profession, that only 5,132 of these – that is, 25% – had been examined in detail and that in the end only 404 (no more than a quarter of which concerned suspicions of money-laundering) had been forwarded to the judicial system for follow-up; the others had been dealt with in the form of notes for the intelligence services, the tax authorities and the police. The information thus gathered was transmitted, recorded and held by an administrative department answering to the Ministry of Finance and it was not known what use was made of it. These figures also showed how inefficient the system was, as only 404 out of 19,208 reports had found their way into the justice system; lawyer-client privilege was thus being sacrificed to very little effect in terms of the prevention of money-laundering. 66. According to the applicant, the interference was all the more disproportionate in that there were alternative ways of combating terrorism and money-laundering which were more effective and impinged less upon people’s fundamental rights. In asking the member States to “ensure” that money-laundering was prohibited, Article 2 of Directive 2001/97/EC allowed them to have recourse to a whole range of methods which were proportionate and tailored to the situation of each of the professions concerned. Obliging lawyers to report suspicions was clearly unnecessary when they were already subject to the criminal legislation prohibiting money-laundering, to strict legal obligations and to close financial scrutiny. French criminal law severely punished money-laundering and a lawyer could be charged with aiding and abetting if he neglected to dissuade a client from engaging in a dubious financial transaction, and cash transactions were prohibited in the profession. 67. The applicant also considered the obligation to report suspicions incompatible with the lawyer’s duty of loyalty to his clients, enshrined in the Basic Principles on the Role of Lawyers adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held in Havana, Cuba, from 27 August to 7 September 1990, and Recommendation No. R. (2000) 21 of the Committee of Ministers of the Council of Europe to member States on the freedom of exercise of the profession of lawyer, of 25 October 2000. It was alien to the very role and aim of the lawyer, and undermined the relationship of trust between lawyer and client. 68. Lastly, the applicant pointed out that the positive law of certain European Union countries (Belgium, Estonia, Ireland, Italy and the Netherlands) and Switzerland protected professional confidentiality better than French law, and in Canada and the United States of America lawyers were bound by no such obligation to report suspicions. (b) The Government 69. The Government accepted that Article 8 of the Convention protected legal professional privilege. They submitted, however, that there had been no “interference” by the authorities with the applicant’s right to respect for his private life, home or correspondence within the meaning of the second paragraph of that provision, as he did not complain of any concrete event that had affected him personally. 70. Even assuming that there had been interference, the Government submitted that it was “in accordance with the law”, namely, the decision of the National Bar Council, adopted in application of the regulatory provisions of the Monetary and Financial Code contained in the Decree of 26 June 2006, which was itself issued in application of the Law of 11 February 2004 transposing Directive 2001/97/EC amending Directive 91/308/EEC on the prevention of the use of the financial system for the purpose of money-laundering. They further submitted that French law was sufficiently clear for there to have been no infringement of the principle of legal certainty. In particular, the notion of reporting “suspicions” was unambiguous: the suspicions could concern the identity of the client or the beneficiary of the operation, the origin of the funds, the unusual or complex nature of the transaction or its purpose; under Article L. 561-15 of the Monetary and Financial Code suspicions had to be reported when the professional knew, based on clear, objective information, that the funds were the proceeds of crime, or when the characteristics of the operation or the lack of details or missing information he was unable to obtain gave rise to suspicions of money-laundering and constituted reasonable grounds to doubt the legitimate origin of the funds. In addition, Article D. 561-32-1 of the Monetary and Financial Code laid down the reference criteria that should trigger reports of suspicions of tax fraud – the use of front companies, for example – because they were an indication of dubious practices. As to the notion of “legal advice”, the Government considered that no lawyer could seriously be unaware of its meaning, especially as it was clearly defined in both legal theory and case-law as well as by the General Assembly of the Bar Council (which, in a resolution adopted on 18 June 2011, defined it as “a personalised intellectual service consisting, on a given question, of offering an opinion or advice on the application of a rule of law with a view, for example, to the taking of a decision”). Referring, among other authorities, to the Cantoni v. France judgment (15 November 1996, Reports of Judgments and Decisions 1996 ‑ V), they also argued that in evaluating the foreseeability of the legal provisions in question, it should be borne in mind that the regulations concerned were aimed at the legal profession. 71. The Government added that, intended as it was to combat money-laundering and related crime, the interference pursued one of the legitimate aims set out in the second paragraph of Article 8, namely the prevention of disorder and crime. 72. They also considered that the presumption of equivalent protection did apply. 73. This was so because first of all, by subjecting lawyers to the obligations of due diligence and the reporting of suspicions in the context of their activities covered by Directive 91/308/EEC of the Council and Directive 2001/97/EC of the European Parliament and of the Council, the French lawmakers had simply been complying with their obligations under the law of the European Union; their leeway in the matter was limited to certain practical arrangements, such as attributing a “filtering” role to the profession’s self-regulating bodies. Secondly, there was nothing to rebut that presumption in the present case. The Government pointed out that the explanations given in the Bosphorus judgment concerning the respecting of fundamental rights by Community law still applied, and Article 6 § 3 of the Treaty on European Union specifically made reference to the Convention in the legal system of the European Union. In that judgment, the Government submitted, the Court had, in abstracto, issued the Community human rights protection system with a “certificate of conventionality”, in terms of both its substantive and its procedural guarantees. They further submitted that professional confidentiality was given specific protection under European Union law, referring in that regard to the AM & S Europe Limited v. Commission of the European Communities judgment of 18 May 1982, in which the Court of Justice had noted that “there are to be found in the national laws of the member States common criteria inasmuch as those laws protect, in similar circumstances, the confidentiality of written communications between lawyer and client provided that, on the one hand, such communications are made for the purposes and in the interests of the client’s rights of defence and, on the other hand, they emanate from independent lawyers, that is to say, lawyers who are not bound to the client by a relationship of employment”. The Government added that in his conclusions in the above-cited case of Ordre des barreaux francophones et germanophone and Others, the Advocate General, Miguel Poiares Maduro, had explained that, interpreted in the light of its recital 17, Directive 91/308/EEC as amended respected professional confidentiality for the purposes not only of Article 6 but also of Article 8 of the Convention. 74. Even if the Court were nevertheless to decide that it was necessary to examine whether the interference was necessary, the Government pointed out that both the principle of subjecting lawyers to obligations in respect of the effort to prevent money-laundering and the list of activities covered and the exceptions thereto were the exact transposition of European Union law, which reflected the Financial Action Task Force (FATF) recommendations. They added, referring specifically to money-laundering, that the Court itself had found in the André and Another judgment, cited above, that the Convention did not rule out imposing certain obligations on lawyers in their relations with their clients, provided that such measures were subject to strict scrutiny. They also affirmed that the obligations of due diligence and cooperation concerned only those activities that were listed, which, as the Court of Justice had found in its judgment of 26 June 2007, were generally carried out, because of their very nature, in a context unrelated to any judicial proceedings. Lawyers were not affected in their activities linked to judicial proceedings or when consulted for “legal advice”. The only cases where this exception did not apply were where the legal counsellor himself was taking part in money-laundering activities, the legal advice was provided for money-laundering purposes, or the lawyer knew that the client was seeking legal advice for money-laundering purposes. The Government also highlighted the “maximum procedural guarantees” provided, emphasising that French law had made use of the possibility afforded by Article 6 § 3 of Directive 91/308/EEC, as amended, of making the self-regulatory bodies of the legal profession serve as a “filter” between the reporting lawyer and the authorities, entrusting that role to the Chairman of the Bar: if the Chairman considered that there was no suspicion of money-laundering, he would not pass on the information; the same applied if it appeared that the information reported had been received in the course of activities excluded from the scope of the obligations of due diligence and cooperation. Only a small number of other European Union member States had taken up that option (the Czech Republic, Denmark, Portugal and Spain), so French law was among the most protective of legal professional privilege in the European Union. In addition, data storage was limited in time (ten years at most when the information had not been transmitted to the judicial system), the information collected by the FIU was confidential, its disclosure was strictly controlled by the law and any failure to comply was punishable under Article 226-13 of the Criminal Code. Lastly, the Government pointed out that lawyers were in any event bound by a general duty of caution under Article 1.5 of the national rules and regulations governing the legal profession, which was inherent in the lawyer’s profession and pre-dated the anti-money-laundering regulations. 2. Observations of the third-party interveners (a) The Council of Bars and Law Societies of Europe (CCBE) 75. The CCBE considered that the essential values of the legal profession were seriously threatened by the anti-money-laundering Directives and the laws passed by the member States to transpose them, which, it deemed, undermined the independence of lawyers, professional secrecy and people’s right to respect for their private life. It submitted that lawyers’ activities were indivisible and that the distinction between those activities relating to expert advice – which were excluded from the obligation to report suspicions – and the others was a source of legal uncertainty, as people believing that lawyers were bound by a duty of confidentiality might inadvertently incriminate themselves. That uncertainty, combined with the fact that lawyers were required to report “suspicions” rather than actual offences, was incompatible with the confidentiality of exchanges between client and lawyer and the clients’ right to respect for their private life, as protected by Article 8 of the Convention. The lawyer became a de facto “agent of the State”, entering into a conflict of interest with his clients. Yet this approach was not essential to the anti-money-laundering effort, as demonstrated by the fact that in Canada and the United States of America lawyers were not obliged to report suspicious transactions. 76. According to the CCBE, the regulations in question were incompatible with European privacy protection standards in that they restricted the principle of confidentiality with their “obscure and vague wording”, which failed to define the “legal advice” activities to which the obligation to report did not apply. In exposing lawyers to such uncertainties, subject to disciplinary sanctions and even being struck off, they also undermined the independence of the legal profession. 77. The CCBE referred to the Code of Conduct for European Lawyers and the Charter of Core Principles of the European Legal Profession, drafted under its own aegis, and to the above-mentioned Basic Principles on the Role of Lawyers, which stressed the importance of preserving the independence of the legal profession and protecting legal professional secrecy and the confidentiality of exchanges between lawyers and their clients. It pointed out that the Court’s case-law acknowledged the fundamental nature of professional confidentiality for lawyers. Moreover, in the AM & S Europe Limited v. Commission of the European Communities judgment of 18 May 1982 (155/79), the Court of Justice of the European Communities had established the principle of the confidentiality of lawyer-client exchanges and, indirectly, the principle of legal professional privilege, and had gone on to specify in the Akzo Nobel Chemicals Ltd and Akcros Chemicals Ltd v. European Commission judgment of 14 September 2010 (C-550/07 P) that legal professional privilege was based on the principle that the lawyer was independent. According to the CCBE, the Luxembourg Court’s approach to the independence of the legal profession, which it justified largely by reference to the professional discipline inherent in the job, made it difficult to see the point of a law requiring lawyers to report suspicions. 78. Lastly, the CCBE pointed out that the Bosphorus presumption could be rebutted where European Union law left the States a margin of appreciation with regard to its implementation, as illustrated by the M.S.S. v. Belgium and Greece judgment ([GC], no. 30696/09, ECHR 2011), and that was indeed the case in respect of the Directives in issue in the present case. (b) The French-speaking Bar Council of Brussels 79. According to the French-speaking Bar Council of Brussels, the fact that legal professional privilege was guaranteed by Articles 6 and 8 of the Convention was undeniable. 80. Article 8 protected the lawyer’s office, home, correspondence, computer equipment and telephone lines as well as the confidentiality of his relations with his clients and his professional privilege. It was part of the respect for private life to which the lawyer was entitled – which included his professional activities – and to which his clients were also entitled, and in addition, clients could rely on the confidentiality of their exchanges with their lawyer on the basis of their right to a fair trial. On this last point, highlighting the fundamental role played by lawyers in a democratic society governed by the rule of law, the Bar Council pointed out that the confidentiality of the lawyer’s work also had its basis in the need for the lawyer’s clients to be able to trust that any secrets they confided in their lawyer would not be disclosed to a third party. In M.S. v. Sweden (27 August 1997, Reports 1997 ‑ IV), a case concerning medical secrecy, the Court had found that respecting the confidentiality of health data was a vital principle in the legal systems of all the Contracting Parties to the Convention. It was crucial not only in order to respect the sense of privacy of a patient but also to preserve his or her confidence in the medical profession and in the health services in general. The French-speaking Bar Council submitted that this approach also applied, mutatis mutandis, to exchanges between lawyers and their clients. 81. It further submitted that legal professional privilege was also acknowledged by the positive law of the European Union; it referred in this connection to the AM & S Europe Limited judgment cited above and, in particular, to the conclusions of the Advocate General in the Ordre des barreaux francophones et germanophone and Others case, also cited above. 82. Moreover, along similar lines to the judgments of the French Conseil d’Etat of 10 April 2008 and 23 July 2010 cited above, the Constitutional Court of Belgium held in a judgment of 23 January 2008 (no. 10/2008) that legal professional privilege was a general principle that contributed to respect for fundamental rights and was enshrined in Articles 10, 11 and 22 of the Belgian Constitution and Articles 6 and 8 of the Convention. 83. Without taking any stance on the existence of an “interference” with Article 8 rights in the present case, or the applicant’s victim status, the Bar Council went on to point out that a person could claim that a law violated his rights in the absence of any individual measure of implementation if it required him to either modify his conduct or risk being prosecuted, or if he belonged to a class of people likely to be directly affected by it. 84. As to the presumption of equivalent protection, it did not apply in this case, which concerned the transposition of a European Directive. This was confirmed by paragraph 157 of the Bosphorus judgment (cited above). The French-speaking Bar Council also referred to the Cantoni case, cited above, in which the Court had given the impugned measures its full scrutiny even though they simply transposed a Directive into French law, and to the M.S.S. v. Belgium and Greece judgment (cited above). 85. Lastly, the Bar Council drew the Court’s attention to the judgment of 23 January 2008 mentioned above, in which the Constitutional Court of Belgium had held that while the fight against money-laundering and terrorist financing was a legitimate aim in the public interest, it could not justify the unconditional or unlimited lifting of legal professional privilege, as lawyers could not be confused with the authorities responsible for crime detection. It had accordingly found that information that came to the lawyer’s attention in the course of the essential activities of his profession, including those listed in Article 2 § 1 (3) (b) of Directive 2005/60/EC, namely, assisting and defending clients in matters of justice and providing legal advice, even outside the context of judicial proceedings, fell within the scope of legal professional privilege and could not be disclosed to the authorities. However, the Constitutional Court did not suggest that professional confidentiality was unlimited. Based on Article 20 of the Directive, it specified in its judgment that a lawyer who failed to dissuade a client from conducting or taking part in a money-laundering or terrorist financing operation he knew to be illegal was required, in circumstances where the obligation to report suspicions applied to him, to pass on the information in his possession to the Chairman of the Bar for communication to the authorities. In such an event, he should terminate the relationship between himself and the client concerned, so that the relationship of confidence between lawyer and client was no longer an issue. (c) The European Bar Human Rights Institute (“EBHRI”) 86. EBHRI submitted that professional confidentiality was a legal obligation in France, prohibiting the disclosure of confidential information obtained by virtue of a person’s status or profession or as a result of a temporary mission or duty, the aim being to foster the trust necessary to the exercise of certain professions or functions. It was EBHRI’s conviction that professional confidentiality was an absolute duty of the lawyer in all his activities and in respect of all his files. In connection with the transposition of the Directives cited above, the National Bar Council had stated: “while the aim of combating crime and terrorism is legitimate, lawyers refuse to be informers or police the system and renege on the very essence of their oath and their essential values; the anti-money-laundering Directives and, as a result, our domestic law, threaten the fundamental rights of our citizens, the independence of our lawyers, the confidentiality of exchanges between lawyer and client, legal professional privilege and the presumption of innocence; they destroy the indispensable trust between the client and his lawyer; for fear of being reported, the client will feel obliged to withhold certain information; the lawyer will be ill-informed and unable to advise his client properly and defend his interests.” 87. EBHRI went on to point out that, according to the Court’s case-law, Article 8 of the Convention protected the confidentiality of exchanges between lawyers and their clients and legal professional privilege, and that the case-law of the Court of Justice of the European Union took a similar stance. 88. EBHRI emphasised that in order to assess the “need” for interference with the enjoyment of the rights guaranteed by Article 8, one had first to take into account “the extent of the interference and its effects”. In this connection it highlighted four points. Firstly, the client’s right to remain silent was also at stake. The obligation to report suspicions required lawyers to make their clients incriminate themselves. Secondly, as the legal provisions in issue were based on the notion of “suspicions”, but did not define that term, the “law” had neither the quality nor the foreseeability required. Thirdly, confidentiality was particularly important in the Court’s case-law – which protected the confidentiality of journalists’ sources and of medical data –, the protection of legal professional privilege in the face of this type of obligation had been affirmed in Canada and the United States of America, and the positive law of certain European Union member States (Belgium, Estonia, Ireland, Italy and the Netherlands), as well as Switzerland, was more protective. Fourthly, as the Court had pointed out in the Casado Coca v. Spain judgment (24 February 1994, Series A no. 285-A), the lawyer played a key role in preserving public confidence in the action of the courts; it was essential, therefore, that people should be able to trust in their lawyers, which meant preserving their independence from the authorities – which was undermined by the link with the FIU established by the legal provisions in issue – and the confidentiality of the information they handled. The interference also had to be proportionate to the aim pursued: the fight against money-laundering and terrorism. However, whereas the Court had found in the Xavier Da Silveira v. France case (no. 43757/05, 21 January 2010) that special procedural guarantees were needed in that particular case, which concerned searches or visits to a lawyer’s offices, the provisions in issue in the present case provided no such guarantees (the part played by the Chairman of the Bar was limited to an advisory role where he was certain that there was nothing suspicious to report). In addition, French lawyers were all subject to the criminal law on money-laundering, which was particularly strict, as well as to major ethical obligations, with sanctions for failure to comply, and to financial supervision. They were not allowed to handle cash transactions, except for very small sums, and bank transfers had to be made through a special payment fund for lawyers. 89. Lastly, on the subject of the presumption of equivalent protection, EBHRI pointed out that the Bosphorus case concerned the obligation for the respondent State to apply a Community Regulation implementing the obligations arising from a binding resolution of the United Nations Security Council. Thus far the cases in which the Court had allowed equivalent protection in favour of the European Union had not concerned the implementation of Directives, which, unlike Regulations, left the States a margin of appreciation. Furthermore, while the fact that certain of the Directives relating to money-laundering referred to the Convention might lead to the acknowledgment of an equivalence of the rules and the substantive protection, there was clearly no equivalence of procedural protection in the absence of a right of individual petition in the European Union system. EBHRI also noted that the Court had acknowledged the equivalence of the protection afforded in the case of disputes involving international organisation staff members, precisely because they had a right of direct individual application to a judicial body affording all the requisite guarantees (it referred to Boivin v. 34 member States of the Council of Europe (dec.), no. 73250/01, ECHR 2008; Gasparini v. Italy and Belgium (dec.), no. 10750/03, 12 May 2009; and Beygo v. 46 member States of the Council of Europe, no. 36099/06, 16 June 2009). 3. The Court’s assessment (a) Whether there was interference with the exercise of the right protected by Article 8 of the Convention 90. In establishing the right of “everyone” to respect for his “correspondence”, Article 8 of the Convention protects the confidentiality of “private communications” (see Frérot v. France, no. 70204/01, § 53, 12 June 2007), whatever the content of the correspondence concerned (ibid., § 54) [the text of §§ 53 and 54 is available only in French in Hudoc], and whatever form it may take. This means that what Article 8 protects is the confidentiality of all the exchanges in which individuals may engage for the purposes of communication. 91. So, in requiring lawyers to report to the administrative authorities information concerning another person which came into their possession through exchanges with that person, the obligation for them to report suspicions constitutes an interference with lawyers’ right to respect for their correspondence. It also constitutes an interference with their right to respect for their “private life”, a notion which includes activities of a professional or business nature (see Niemietz v. Germany, 16 December 1992, § 29, Series A no. 251 ‑ B). 92. In the present case it is true that the applicant does not claim to have found himself in a situation where he was actually obliged to declare such suspicions, or to have been disciplined under the regulations concerned for having failed to do so. However, as indicated previously, he is faced with the following dilemma: either he does as he is told and in so doing abandons his idea of the principle of the confidentiality of exchanges between lawyer and client and of legal professional privilege; or he refuses to comply and exposes himself to disciplinary sanctions and even being struck off. In the opinion of the Court, therefore, the obligation to report suspicions amounts to a “continuing interference” (see, mutatis mutandis, Dudgeon, § 41, and Norris, § 38, both cited above) with the applicant’s enjoyment, as a lawyer, of the rights guaranteed by Article 8, even if it is not the most intimate sphere of his private life that is affected but his right to respect for his professional exchanges with his clients. 93. Such interference violates Article 8, unless it is “in accordance with the law”, pursues one or more of the legitimate aims referred to in paragraph 2 and is “necessary in a democratic society” to achieve the aim or aims concerned. (b) Whether the interference was justified (i) Was the interference in accordance with the law? 94. The Court reiterates that the expression “in accordance with the law” requires first and foremost that the interference has a basis in domestic law (see Silver and Others v. the United Kingdom, 25 March 1983, §§ 86-88, Series A no. 61). Such is undeniably the case here: the obligation for lawyers to report suspicions is provided for in European Directives which have been transposed into French law (in particular Law no. 2004-130 of 11 February 2004 in the case of the Directive of 10 June 1991, as amended) and codified in the Monetary and Financial Code; the practical formalities are set forth in implementing regulations (the provisions of which are also codified) and also in the decision of the National Bar Council of 12 July 2007 cited above. 95. It is also necessary for the “law” to be sufficiently accessible – which the applicant does not dispute in the present case – and precise (ibid.). The applicant alleges that the “law” in question lacks clarity in so far as it requires lawyers to report “suspicions” without defining that term, and the field of activities it covers is vague. 96. The Court is not convinced by this argument. It reiterates that a norm cannot be regarded as a “law” unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail (ibid.). However, the Court has already recognised the impossibility of attaining absolute certainty in the framing of laws and the risk that the search for certainty may entail excessive rigidity. Many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice (ibid.). 97. The Court considers that the notion of “suspicions” is a matter of common sense and that an informed group such as lawyers can scarcely claim that they do not understand it in that, as the Government have explained, the Monetary and Financial Code gives specific guidance. What is more, as the suspicions are to be reported to the Chairman of the Bar, or the President of the Bar Council of the Conseil d’Etat and the Court of Cassation, any lawyer who has doubts about the existence of “suspicions” in a given case can seek the advice of an informed and experienced colleague. As to the allegedly vague nature of the type of activity concerned by the obligation to report suspicions, the Court notes that the texts in issue (for example Article 1 of the National Bar Council’s decision of 12 July 2007, see paragraph 12 above) state that the obligation applies to lawyers when, in the course of their business activity, they participate for and on behalf of their client in any financial or real-estate transaction or assist their client in the preparation or execution of certain types of transaction (relating to the buying and selling of real estate or businesses, the management of funds, securities or other assets belonging to the client, the opening of current accounts, savings accounts or securities accounts, the organisation of the contributions required to create companies, the formation, administration or management of companies, or the formation, administration or management of trusts governed by a foreign legal system, or of any other similar structure). The texts specify that they are not bound by the same rules when acting as legal counsel or in the context of judicial proceedings in connection with one or other of the above activities. The Court deems that this guidance is sufficiently clear, especially considering that the texts concerned are aimed at lawyers and, as the Government have pointed out, the notion of “legal counsel” is defined by the Bar Council, inter alia. 98. In conclusion, the interference was “in accordance with the law” within the meaning of Article 8 § 2 of the Convention. (ii) Did the interference have a legitimate aim? 99. The Court has no doubt that, intended as it was to combat money-laundering and associated crimes, the interference pursued one of the legitimate aims set out in the second paragraph of Article 8, namely the prevention of disorder and crime. Neither party disputed that. 100. Furthermore, the Court reiterates that compliance with European Union law by a Contracting Party constitutes a legitimate general-interest objective (see Bosphorus, cited above, §§ 150-51). (iii) Was the interference necessary? (α) Application of the presumption of equivalent protection 101. The Government submitted that the obligation for lawyers to exercise due diligence and report suspicions was the result of the fact that France, as a member of the European Union, was required to transpose European directives into French law. Referring to the Bosphorus judgment, cited above, they contended that France must be presumed to have respected the requirements of the Convention as all it had done was comply with its obligations, and it was established that the European Union afforded protection of fundamental rights equivalent to that provided by the Convention. General principles 102. The Court reiterates that absolving the Contracting States completely from their Convention responsibility where they were simply complying with their obligations as members of an international organisation to which they had transferred a part of their sovereignty would be incompatible with the purpose and object of the Convention: the guarantees of the Convention could be limited or excluded at will, thereby depriving it of its peremptory character and undermining the practical and effective nature of its safeguards. In other words, the States remain responsible under the Convention for the measures they take to comply with their international legal obligations, even when those obligations stem from their membership of an international organisation to which they have transferred part of their sovereignty (see Bosphorus, cited above, § 154). 103. It is true, however, that the Court has also held that action taken in compliance with such obligations is justified where the relevant organisation protects fundamental rights, as regards both the substantive guarantees offered and the mechanisms controlling their observance, in a manner which can be considered at least equivalent – that is to say not identical but “comparable” – to that for which the Convention provides (it being understood that any such finding of “equivalence” could not be final and would be susceptible to review in the light of any relevant change in fundamental rights protection). If such equivalent protection is considered to be provided by the organisation, the presumption will be that a State has not departed from the requirements of the Convention when it does no more than implement legal obligations flowing from its membership of the organisation. However, a State will be fully responsible under the Convention for all acts falling outside its strict international legal obligations, notably where it has exercised State discretion (see M.S.S. v. Belgium and Greece, cited above, § 338). In addition, any such presumption can be rebutted if, in the circumstances of a particular case, it is considered that the protection of Convention rights was manifestly deficient. In such cases, the interest of international cooperation would be outweighed by the Convention’s role as a “constitutional instrument of European public order” in the field of human rights (see Bosphorus, cited above, §§ 152-58, and also, among other authorities, M.S.S. v. Belgium and Greece, cited above, §§ 338-40). 104. This presumption of equivalent protection is intended, in particular, to ensure that a State Party is not faced with a dilemma when it is obliged to rely on the legal obligations incumbent on it as a result of its membership of an international organisation which is not party to the Convention and to which it has transferred part of its sovereignty, in order to justify its actions or omissions arising from such membership vis-à-vis the Convention. It also serves to determine in which cases the Court may, in the interests of international cooperation, reduce the intensity of its supervisory role, as conferred on it by Article 19 of the Convention, with regard to observance by the States Parties of their engagements arising from the Convention. It follows from these aims that the Court will accept such an arrangement only where the rights and safeguards it protects are given protection comparable to that afforded by the Court itself. Failing that, the State would escape all international review of the compatibility of its actions with its Convention commitments. The protection of fundamental rights afforded by European Union law 105. Concerning the protection of fundamental rights afforded by the European Union, the Court found in the Bosphorus judgment (cited above, §§ 160-65) that it was in principle equivalent to that of the Convention system. 106. To reach that conclusion, it firstly noted that the European Union offered equivalent protection of the substantive guarantees, noting that at the relevant time respect for fundamental rights had become a condition of the legality of Community acts, and that in its deliberations the Court of Justice of the European Communities referred extensively to Convention provisions and to this Court’s jurisprudence (see Bosphorus, cited above, § 159). A fortiori since 1 December 2009, the date of entry into force of Article 6 (amended) of the Treaty on European Union, which gave the Charter of Fundamental Rights of the European Union the force of law and made fundamental rights, as guaranteed by the Convention and as they resulted from the constitutional traditions common to the member States, general principles of European Union law. 107. The Court then considered whether the same could be said of the machinery for monitoring respect for fundamental rights. 108. It noted that private individuals had only limited access to the Court of Justice: actions for failure to fulfil Treaty obligations (initially provided for in Articles 169 and 170 of the Treaty establishing the European Community) were not open to them, access to annulment actions and actions for failure to perform Treaty obligations (initially provided for in Articles 173 and 175 of the same Treaty) was limited, as were, in consequence, related pleas of illegality (initially provided for in Article 184 of the Treaty), and individuals had no right to bring an action against another individual (see Bosphorus, cited above, §§ 161-62). 109. The Court nevertheless found that there was equivalent protection on this level too, noting that actions initiated before the Court of Justice by the European Union institutions or a member State constituted important control of compliance with European Union norms to the indirect benefit of individuals, and that individuals could also bring an action for damages before the Court of Justice in respect of the non-contractual liability of the institutions (initially provided for in Article 184 of the Treaty) (see Bosphorus, cited above, § 163). 110. It further noted that it was essentially through the national courts that the Community system provided a remedy to individuals against a member State or another individual for a breach of European Union law. Certain provisions of the Treaty establishing the European Community had envisaged a complementary role for the national courts in the Community control mechanisms from the outset, notably (referring to the original numbering) Articles 189 (the notion of direct applicability) and 177 (the preliminary reference procedure), and the role of the domestic courts in the enforcement of Community law and its fundamental rights guarantees had been greatly enlarged by the development by the Court of Justice of important notions such as the supremacy of Community law, direct effect, indirect effect and State liability. The Court then observed that the Court of Justice maintained its control on the application by national courts of European Union law, including its fundamental rights guarantees, through the preliminary referral procedure originally provided for in Article 177 of the Treaty, during which the parties to the domestic proceedings had the right to put their case. It noted in this connection that while the Court of Justice’s role was limited to replying to the interpretative or validity question referred by the domestic court, the reply would often be determinative of the domestic proceedings (as, indeed, it had been in the Bosphorus case (cited above, § 164)). 111. So, although individual access to the Court of Justice is far more limited than the access private individuals have to the Court under Article 34 of the Convention, the Court accepts that, all in all, the supervisory mechanism provided for in European Union law affords protection comparable to that provided by the Convention: firstly, because private individuals are protected under European Union law by the actions brought before the Court of Justice by the member States and the institutions of the European Union; and, secondly, because they have the possibility of applying to the domestic courts to determine whether a member State has breached Community law, in which case the control exercised by the Court of Justice takes the form of the preliminary referral procedure open to the domestic courts. The application in the present case of the presumption of equivalent protection 112. The present case differs from that of Bosphorus for two main reasons. 113. Firstly, as the latter case concerned a Regulation, which was directly and fully applicable in the member States, Ireland had no margin of manoeuvre at all in the execution of the obligations resulting from its membership of the European Union. In the present case France implemented Directives, which are binding on the member States as regards the result to be achieved but leave it to them to choose the means and manner of achieving it. That being so, the question whether France, in complying with its obligations resulting from its membership of the European Union, had a margin of manoeuvre capable of obstructing the application of the presumption of equivalent protection is not without relevance. 114. Secondly, and above all, in the Bosphorus case the control mechanism provided for in European Union law was fully brought into play. The Irish Supreme Court applied to the Court of Justice for a preliminary ruling on the alleged violation of the right of property of which the applicant subsequently complained to the Court. Conversely, in the present case the Conseil d’Etat refused to submit the applicant’s request to the Court of Justice for a preliminary ruling on whether the obligation for lawyers to report suspicions was compatible with Article 8 of the Convention, even though the Court of Justice had not had an opportunity to examine the question, either in a preliminary ruling delivered in the context of another case, or on the occasion of one of the various actions mentioned above which were open to the European Union’s member States and institutions. The Court observes that in its judgment in the case of Ordre des barreaux francophones et germanophone and Others, cited above (see paragraphs 27 ‑ 29), the Court of Justice examined the compatibility of the obligation for lawyers to report suspicions only in respect of the requirements of the right to a fair trial within the meaning of Article 6 of the Convention. In so doing, it ruled solely on the rights of the lawyer’s client. The question is different, however, when approached from the angle of Article 8 of the Convention: here the issue is not just the rights of the lawyer’s client under this provision, but also the rights of the lawyer himself, as illustrated by the judgments in Kopp v. Switzerland (25 March 1998, Reports 1998 ‑ II), André and Another (cited above), and Wieser and Bicos Beteiligungen GmbH v. Austria (no. 74336/01, ECHR 2007-IV), which respectively concerned telephone tapping, the search of a lawyer’s offices in the context of proceedings against a client company and the seizure of computer data. 115. The Court is therefore obliged to note that because of the decision of the Conseil d’Etat not to refer the question before it to the Court of Justice for a preliminary ruling, even though that court had never examined the Convention rights in issue, the Conseil d’Etat ruled without the full potential of the relevant international machinery for supervising fundamental rights – in principle equivalent to that of the Convention – having been deployed. In the light of that choice and the importance of what was at stake, the presumption of equivalent protection does not apply. 116. The Court is therefore required to determine whether the interference was necessary for the purposes of Article 8 of the Convention. (β) The Court’s assessment 117. The Court notes in this connection that it has on several occasions examined complaints under Article 8 of the Convention brought by lawyers in the exercise of their profession. For example, it has ruled on the compatibility with this Convention provision of searches and seizures carried out at a lawyer’s offices or home (see Niemietz, cited above; Roemen and Schmit v. Luxembourg, no. 51772/99, ECHR 2003 ‑ IV; Sallinen and Others v. Finland, no. 50882/99, 27 September 2005; André and Another, cited above; and Xavier Da Silveira, cited above), of the interception of correspondence between a lawyer and his client (see Schönenberger and Durmaz v. Switzerland, 20 June 1988, Series A no. 137), of the tapping of a lawyer’s telephone (see Kopp, cited above) and of the search and seizure of electronic data in a law firm (see Sallinen and Others, and Wieser and Bicos Beteiligungen GmbH, both cited above). It has pointed out in this connection that, by virtue of Article 8, correspondence between a lawyer and his client, whatever its purpose (strictly professional correspondence included: see Niemietz, cited above, § 32), enjoys privileged status where confidentiality is concerned (see Campbell v. the United Kingdom, 25 March 1992, §§ 46-48, Series A no. 233; and also, among other authorities, Ekinci and Akalın v. Turkey, no. 77097/01, § 47, 30 January 2007; this applies, as mentioned earlier, to all forms of exchanges between lawyers and their clients). It has also said that it “attaches particular weight” to the risk of impingement on the lawyer’s right to professional secrecy, “since it may have repercussions on the proper administration of justice” (see Wieser and Bicos Beteiligungen GmbH, cited above, §§ 65 and 66; see also Niemietz, § 37, and André and Another, § 41, both cited above) and professional secrecy is the basis of the relationship of confidence between lawyer and client (see André and Another, § 41, and Xavier Da Silveira, § 36, both cited above). 118. The result is that while Article 8 protects the confidentiality of all “correspondence” between individuals, it affords strengthened protection to exchanges between lawyers and their clients. This is justified by the fact that lawyers are assigned a fundamental role in a democratic society, that of defending litigants. Yet lawyers cannot carry out this essential task if they are unable to guarantee to those they are defending that their exchanges will remain confidential. It is the relationship of trust between them, essential to the accomplishment of that mission, that is at stake. Indirectly but necessarily dependent thereupon is the right of everyone to a fair trial, including the right of accused persons not to incriminate themselves. 119. This additional protection conferred by Article 8 on the confidentiality of lawyer-client relations, and the grounds on which it is based, lead the Court to find that, from this perspective, legal professional privilege, while primarily imposing certain obligations on lawyers, is specifically protected by that Article. 120. The question facing the Court is therefore whether, as implemented in France and bearing in mind the legitimate aim pursued, the obligation for lawyers to report suspicions, seen in this light, amounts to disproportionate interference with legal professional privilege. The Court reiterates that for the purposes of Article 8 of the Convention the notion of necessity implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued (see, among other authorities, Campbell, cited above, § 44). 121. The Court notes that in its judgment of 23 July 2010 (see paragraph 17 above), the Conseil d’Etat, after having agreed that Article 8 of the Convention protects “the fundamental right to professional confidentiality”, held that requiring lawyers to report suspicions did not amount to excessive interference with that right. It reached that conclusion regard being had to the general interest served by combating money-laundering and to the guarantee provided by the exclusion from the scope of the obligation of information received or obtained by lawyers in the course of activities connected with judicial proceedings, or in their capacity as legal counsel (save, in this latter case, where the lawyer is taking part in money-laundering activities, or the legal advice is provided for money-laundering purposes, or the lawyer knows that the client is seeking legal advice for money-laundering purposes). 122. The Court finds no fault with that reasoning. 123. It is true that, as previously indicated, legal professional privilege is of great importance for both the lawyer and his client and for the proper administration of justice. It is without a doubt one of the fundamental principles on which the administration of justice in a democratic society is based. It is not, however, inviolable, and the Court has already found that it may have to give way, for example, to the lawyer’s right to freedom of expression (see Mor v. France, no. 28198/09, 15 December 2011). Its importance should also be weighed against that attached by the member States to combating the laundering of the proceeds of crime, which are likely to be used to finance criminal activities linked to drug trafficking, for example, or international terrorism (see Grifhorst v. France, no. 28336/02, § 93, 26 February 2009). The Court observes in this connection that the European Directives at the origin of the obligation to report suspicions of which the applicant complained form part of a series of international instruments intended to prevent activities which constitute a serious threat to democracy (see, for example, the FATF recommendations and the Council of Europe’s Convention of 16 May 2005 on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism, cited in paragraphs 18 and 19 above). 124. As to the applicant’s argument that the obligation to report is not necessary because any lawyer found to be involved in a money-laundering operation would in any event be liable to criminal proceedings, the Court is not indifferent to it. It considers, however, that that argument does not prevent a State or a group of States from combining the repressive provisions they have adopted with a specifically preventive mechanism. 125. The Court also takes note of the statistics published by the FIU to which the applicant referred, in particular the fact that out of the 20,252 reports received by the FIU in 2010, including 19,208 reports of suspicions submitted by professionals, only 5,132 were examined in detail and only 404 were forwarded to the prosecuting authorities, and approximately only a hundred of those concerned money-laundering or terrorist financing. The applicant maintained that these figures showed that the system was ineffective and the interference therefore unnecessary. The Court is not convinced. It fails to see what lesson can be learnt from these figures in the present case when the FIU’s 2010 activity report reveals that none of the 19,208 reports of suspicions were submitted by a lawyer. It considers, on the contrary, that this report presents a positive picture of the results achieved; in fact FATF found that France’s methods of combating money-laundering and the financing of terrorism were among the most effective in the world. It further observes that the applicant’s argument ignores the deterrent effect of the system. 126. Lastly, and above all, two factors are decisive in the eyes of the Court in assessing the proportionality of the interference. 127. Firstly, as stated above and as the Conseil d’Etat noted, the fact that lawyers are subject to the obligation to report suspicions only in two cases: where, in the context of their business activity, they take part for and on behalf of their clients in financial or real-estate transactions or act as trustees; and where they assist their clients in preparing or carrying out transactions concerning certain defined operations (the buying and selling of real estate or businesses; the management of funds, securities or other assets belonging to the client; the opening of current accounts, savings accounts, securities accounts or insurance policies; the organisation of the contributions required to create companies; the formation, administration or management of companies; the formation, administration or management of trusts or any other similar structure; and the setting-up or management of endowment funds). The obligation to report suspicions therefore only concerns tasks performed by lawyers, which are similar to those performed by the other professions subjected to the same obligation, and not the role they play in defending their clients. Furthermore, the Monetary and Financial Code specifies that lawyers are not subjected to the obligation where the activity in question “relates to judicial proceedings, whether the information they have was received or obtained before, during or after said proceedings, including any advice given with regard to the manner of initiating or avoiding such proceedings, nor where they give legal advice, unless said information was provided for the purpose of money-laundering or terrorist financing or with the knowledge that the client requested it for the purpose of money-laundering or terrorist financing” (Article L. 561-3 II of the Monetary and Financial Code, see paragraph 32 above). 128. The obligation to report suspicions does not therefore go to the very essence of the lawyer’s defence role which, as stated earlier, forms the very basis of legal professional privilege. 129. The second factor is that the legislation has introduced a filter which protects professional privilege: lawyers do not transmit reports directly to the FIU but, as appropriate, to the President of the Bar Council of the Conseil d’Etat and the Court of Cassation or to the Chairman of the Bar of which the lawyer is a member. It can be considered that at this stage, when a lawyer shares information with a fellow professional who is not only subject to the same rules of conduct but also elected by his or her peers to uphold them, professional privilege has not been breached. The fellow professional concerned, who is better placed than anybody to determine which information is covered by lawyer-client privilege and which is not, transmits the report of suspicions to the FIU only after having ascertained that the conditions laid down by Article L. 561-3 of the Monetary and Financial Code have been met (Article L. 561-17 of the same Code, see paragraph 38 above). The Government pointed out in this regard that the information is not forwarded if the Chairman of the Bar considers that there is no suspicion of money-laundering or it appears that the information reported was received in the course of activities excluded from the scope of the obligation to report suspicions. 130. The Court has already pointed out that the role played by the Chairman of the Bar constitutes a guarantee when it comes to protecting legal professional privilege. In the André and Another judgment, it specified that the Convention did not prevent domestic law from allowing for the possibility of searching a lawyer’s offices as long as proper safeguards were provided; more broadly, it emphasised that, subject to strict supervision, it was possible to impose certain obligations on lawyers concerning their relations with their clients, in the event, for example, that there was plausible evidence of the lawyer’s involvement in a crime and in the context of the fight against money-laundering. It then took into account the fact that the search had been carried out in the presence of the Chairman of the Bar, which it saw as a “special procedural guarantee” (§§ 42 and 43). Similarly, in the Roemen and Schmit judgment cited above (§ 69) it noted that the search of the lawyer’s premises had been accompanied by “special procedural safeguards”, including the presence of the President of the Bar Council. Lastly, in Xavier Da Silveira, cited above (see in particular §§ 37 and 43), it found a violation of Article 8, in part because there had been no such safeguard when a lawyer’s premises were searched. 131. In the light of the above considerations, the Court considers that, regard being had to the legitimate aim pursued and the particular importance of that aim in a democratic society, the obligation for lawyers to report suspicions, as practised in France, does not constitute disproportionate interference with the professional privilege of lawyers. 132. There has therefore been no violation of Article 8 of the Convention. II. THE OTHER ALLEGED VIOLATIONS 133. The applicant complained that the professional regulations of 12 July 2007 did not define with sufficient clarity the obligations imposed on lawyers, subject to disciplinary action, in so far as they used such vague and general terms as “report suspicions” and “due diligence”. He alleged that this was in breach of the principle of legal certainty, in violation of Article 7 of the Convention. The Court reiterates that Article 7 prohibits the retrospective application of criminal law to the disadvantage of the accused and, more generally, embodies the principle that only the law can define a crime and prescribe a penalty and that criminal law must not be extensively construed to an accused’s detriment; it follows from this that “an offence must be clearly defined in law” (see Kokkinakis v. Greece, 25 May 1993, § 52, Series A no. 260 ‑ A). It applies only in the context of “criminal” proceedings, within the meaning of the Convention, which led to a “conviction” or to the imposition of a “penalty”. Now, even assuming that the disciplinary action to which failure to comply with the professional regulations of 12 July 2007 could lead might be classified as “criminal” proceedings within the meaning of the Convention, the Court notes that no such proceedings were brought against the applicant. This means that he cannot claim to be a victim of the alleged violation of Article 7. This part of the application is therefore incompatible ratione personae with the provisions of the Convention and must be rejected pursuant to Article 35 §§ 3 (a) and 4. 134. Relying on Article 6 of the Convention, the applicant complained that the obligation for lawyers to report their “suspicions” concerning the possible unlawful activities of their clients was incompatible with the right of those clients not to incriminate themselves, and with their right to be presumed innocent. The Court notes that the applicant’s complaint concerns a violation of the rights of others. Therefore, he cannot claim to be a victim within the meaning of Article 34 of the Convention. This part of the application is accordingly incompatible ratione personae with the provisions of the Convention and must be rejected pursuant to Article 35 §§ 3 (a) and 4. | The Court held that there had been no violation of Article 8 of the Convention. While stressing the importance of the confidentiality of lawyer-client relations and of legal professional privilege, it considered, however, that the obligation to report suspicions pursued the legitimate aim of prevention of disorder or crime, since it was intended to combat money laundering and related criminal offences, and that it was necessary in pursuit of that aim. On the latter point, the Court held that the obligation to report suspicions, as implemented in France, did not interfere disproportionately with legal professional privilege, since lawyers were not subject to the above requirement when defending litigants and the legislation had put in place a filter to protect professional privilege, thus ensuring that lawyers did not submit their reports directly to the authorities, but to the president of their Bar association. |
599 | Obligation to swear a religious oath | PROCEEDINGS BEFORE THE COMMISSION 15. Mr Buscarini, Mr Della Balda and Mr Manzaroli applied to the Commission on 17 November 1995. Relying on Article 9 of the Convention, they complained of an infringement of their right to freedom of religion and conscience. 16. The Commission declared the application (no. 24645/94) admissible on 7 April 1997. In its report of 2 December 1997 (former Article 31 of the Convention), it concluded unanimously that there had been a violation of Article 9. The full text of the Commission’s opinion is reproduced as an annex to this judgment [4]. FINAL SUBMISSIONS TO THE COURT 17. The Government raised three preliminary objections and asked the Court to declare the application inadmissible or, in the alternative, to dismiss it as ill-founded and devoid of purpose. 18. Mr Buscarini and Mr Della Balda requested the Court to dismiss the Government’s objections to admissibility and to find that there had been a breach of Article 9 of the Convention. THE LAW I. ALLEGED VIOLATION OF ARTICLE 9 OF THE CONVENTION A. The Government’s preliminary objections 19. The Government raised three pleas of inadmissibility as they had before the Commission, arguing that the application was an abuse of process, that it had been lodged out of time and that domestic remedies had not been exhausted. 1. Whether the application amounted to an abuse of process 20. The Government asserted that the applicants had improperly made the application for political ends, as was clear from their statements announcing their intention of approaching the Commission. In support of that assertion the Government cited, inter alia, the official record of the General Grand Council session of 26 and 27 July 1993 and a number of articles which had appeared in the press after the event, even as late as October 1998. 21. Like the Commission, the Court notes that the documents in the case file show that after taking the oath in its traditional form, Mr Buscarini and Mr Della Balda merely announced their intention of bringing the matter to the attention of “the Strasbourg Court”, a move which cannot be regarded as an abuse of the right of individual petition. Accordingly, this objection must be dismissed. 2. Whether the application was lodged out of time 22. The Government submitted that the application form was sent to the Commission after the time-limit laid down in former Article 26 (now Article 35 § 1) of the Convention of six months from the date of the final domestic decision. Further, they argued that, since Mr Buscarini had no power of attorney from Mr Della Balda and was not a lawyer, he could not validly act on the latter’s behalf in Commission proceedings. The Commission rejected the objection, taking the view that the applicants had complied with the six-month time-limit laid down by the Convention. 23. The Court points out that the running of the six-month period is interrupted by the first letter from an applicant summarily setting out the object of the application, unless the letter is followed by a long delay before the application is completed. What is important is that the applicant should be clearly identifiable before that period has expired and should have submitted his or her complaints, at least in substance. Further, it is not required by either the Convention or Rule 36 of the Rules of Court that an applicant should be represented at that stage of the proceedings. In the instant case the first applicant, in a letter of 17 November 1993 to the Commission, set out the object of the application with precision and stated that he was acting on behalf of the other two applicants as well as in his own name. Two application forms, one signed by the first applicant and one by the second, were received by the Commission on 1 and 18 July 1994; the third applicant formally joined in the application on 24 August 1995. The application was thus lodged by all three applicants within the period laid down by former Article 26 (now Article 35 § 1) of the Convention and was duly completed later. Consequently, this objection must likewise be dismissed. 3. Whether domestic remedies have been exhausted 24. Arguing that the General Grand Council’s resolution requiring the oath to be sworn on the Gospels was a political act, the Government maintained that the applicants should have brought a civil action for redress of the alleged prejudice to them before turning – if the domestic courts held that they had no jurisdiction – to the Commission. According to the Government, such a remedy would have been both accessible and effective, as the domestic judgments that had been produced to the Commission demonstrated. 25. Like the applicants, the Delegate of the Commission emphasised that, even supposing that a claim could as a matter of law have been brought in the civil courts, those courts would have had no choice but to “refer the matter to the General Grand Council, which would then have been a judge in its own cause”. 26. The Court reiterates that the rule of exhaustion of domestic remedies referred to in former Article 26 (now Article 35 § 1) of the Convention obliges those seeking to bring their case against the State before an international judicial or arbitral body to use first the remedies provided by the national legal system, thus dispensing States from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal systems. In order to comply with the rule, normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged (see, in particular, the Assenov and Others v. Bulgaria judgment of 28 October 1998, Reports of Judgments and Decisions 1998-VIII, p. 3286, § 85, and the Aksoy v. Turkey judgment of 18 December 1996, Reports 1996-VI, pp. 2275-76, §§ 51-52). 27. In the instant case the domestic decisions relied on by the Government to show that the civil courts would have had jurisdiction to deal with the matter are irrelevant, since they concern applications for San Marinese nationality and for building permits. While the civil courts have the power to rule on whether the conditions for acquiring citizenship have been fulfilled (as in the first instance) and to award damages to a plaintiff (as in the second), they cannot in any circumstances review and quash political decisions of the General Grand Council. Consequently, the Court considers that the Government have not demonstrated that the remedy in question is an effective one. It follows that this objection must be dismissed. 28. The Government also stated, both in the Commission proceedings and in their memorial to the Court, that the applicants could have brought proceedings in the Administrative Court or applied to the Sindacato della Reggenza (the body with power to review acts of the Captains-Regent). The Commission considered those remedies ineffective on the grounds that, by law, the first of them could not be used to challenge acts of the General Grand Council, and the second likewise did not cover that body’s decisions. The Court concurs in that conclusion. B. Compliance with Article 9 of the Convention 29. Article 9 of the Convention provides: “1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. 2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.” 30. Mr Buscarini and Mr Della Balda submitted that the obligation which the General Grand Council imposed on them on 26 July 1993 demonstrated that in the Republic of San Marino at the material time the exercise of a fundamental political right, such as holding parliamentary office, was subject to publicly professing a particular faith, in breach of Article 9. 31. The Commission agreed with that analysis; the Government contested it. 32. The Government maintained that the wording of the oath in question was not religious but, rather, historical and social in significance and based on tradition. The Republic of San Marino had, admittedly, been founded by a man of religion but it was a secular State in which freedom of religion was expressly enshrined in law (Article 4 of the Declaration of Rights of 1974). The form of words in issue had lost its original religious character, as had certain religious feast-days which the State recognised as public holidays. The act complained of therefore did not amount to a limitation on the applicants’ freedom of religion. 33. The applicants and the Commission rejected that assertion. 34. The Court reiterates that: “As enshrined in Article 9, freedom of thought, conscience and religion is one of the foundations of a ‘democratic society’ within the meaning of the Convention. It is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it” (see the Kokkinakis v. Greece judgment of 25 May 1993, Series A no. 260-A, p. 17, § 31). That freedom entails, inter alia, freedom to hold or not to hold religious beliefs and to practise or not to practise a religion. In the instant case, requiring Mr Buscarini and Mr Della Balda to take an oath on the Gospels did indeed constitute a limitation within the meaning of the second paragraph of Article 9, since it required them to swear allegiance to a particular religion on pain of forfeiting their parliamentary seats. Such interference will be contrary to Article 9 unless it is “prescribed by law”, pursues one or more of the legitimate aims set out in paragraph 2 and is “necessary in a democratic society”. 1. “Prescribed by law” 35. As the Commission noted in its report (paragraph 38), “the interference in question was based on section 55 of the Elections Act, Law no. 36 of 1958, which referred to the decree of 27 June 1909 laying down the wording of the oath to be sworn by members of parliament … Therefore, it was ‘prescribed by law’ within the meaning of the second paragraph of Article 9 of the Convention”. That point was not disputed. 2. Legitimate aim and whether “necessary in a democratic society” 36. The Government emphasised the importance, in any democracy, of the oath taken by elected representatives of the people, which, in their view, was a pledge of loyalty to republican values. Regard being had to the special character of San Marino, deriving from its history, traditions and social fabric, the reaffirmation of traditional values represented by the taking of the oath was necessary in order to maintain public order. The history and traditions of San Marino were linked to Christianity, since the State had been founded by a saint; today, however, the oath’s religious significance had been replaced by “the need to preserve public order, in the form of social cohesion and the citizens’ trust in their traditional institutions”. It would therefore be inappropriate for the Court to criticise the margin of appreciation which San Marino had to have in this matter. In any event, the Government maintained, the applicants had had no legal interest in pursuing the Strasbourg proceedings since the entry into force of Law no. 115 of 29 October 1993 (“Law no. 115/1993”), which did not require persons elected to the General Grand Council to take the oath on the Gospels. 37. According to Mr Buscarini and Mr Della Balda, the resolution requiring them to take the oath in issue was in the nature of a “premeditated act of coercion” directed at their freedom of conscience and religion. It aimed to humiliate them as persons who, immediately after being elected, had requested that the wording of the oath should be altered so as to conform with, inter alia, Article 9 of the Convention. 38. The Court considers it unnecessary in the present case to determine whether the aims referred to by the Government were legitimate within the meaning of the second paragraph of Article 9, since the limitation in question is in any event incompatible with that provision in other respects. 39. The Court notes that at the hearing on 10 December 1998 the Government sought to demonstrate that the Republic of San Marino guaranteed freedom of religion; in support of that submission they cited its founding Statutes of 1600, its Declaration of Rights of 1974, its ratification of the European Convention in 1989 and a whole array of provisions of criminal law, family law, employment law and education law which prohibited any discrimination on the grounds of religion. It is not in doubt that, in general, San Marinese law guarantees freedom of conscience and religion. In the instant case, however, requiring the applicants to take the oath on the Gospels was tantamount to requiring two elected representatives of the people to swear allegiance to a particular religion, a requirement which is not compatible with Article 9 of the Convention. As the Commission rightly stated in its report, it would be contradictory to make the exercise of a mandate intended to represent different views of society within Parliament subject to a prior declaration of commitment to a particular set of beliefs. 40. The limitation complained of accordingly cannot be regarded as “necessary in a democratic society”. As to the Government’s argument that the application ceased to have any purpose when Law no. 115/1993 was enacted, the Court notes that the oath in issue was taken before the passing of that legislation. 41. In the light of the foregoing, there has been a violation of Article 9 of the Convention. II. application of article 41 of the Convention 42. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 43. Mr Buscarini and Mr Della Balda claimed no more than one Italian lira for the damage which they alleged they had suffered as a result of being required to take the oath on the Gospels. 44. The Government did not express a view on this point. 45. Although the applicants did not expressly say so, their claim obviously relates to non-pecuniary damage. Like the Delegate of the Commission, the Court considers that in the circumstances of the case the finding of a violation of Article 9 of the Convention constitutes sufficient just satisfaction under Article 41. B. Costs and expenses 46. The applicants also sought reimbursement of their costs and expenses but did not specify an amount. 47. The Government did not make any submissions on this point. The Delegate of the Commission wished to leave the matter to the Court’s discretion. 48. By Rule 60 § 2 of the Rules of Court, itemised particulars of any claim made under Article 41 of the Convention must be submitted, together with the relevant supporting documents or vouchers, “failing which the Chamber may reject the claim in whole or in part”. Since the applicants did not quantify their claim, the Court dismisses it. | The Court held that there had been a violation of Article 9 of the Convention. It found in particular that the obligation to take the oath was not “necessary in a democratic society” for the purpose of Article 9 § 2 of the Convention, as making the exercise of a mandate intended to represent different views of society within Parliament subject to a prior declaration of commitment to a particular set of beliefs was contradictory. |
47 | Applications lodged by the parent whose child had been abducted by the other parent | II. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND DOCUMETS 50. The relevant provisions of Law no. 369/2004 on the enforcement of the Hague Convention, in so far as relevant, read as follows: ... Article 6 The proceedings under Article 3 of the Convention seeking the return of the child living in Romania shall be examined urgently. ... Article 9 ... The hearing of the child who is ten years old is mandatory. The child who is not ten years old may be heard by the court if it considers that it is necessary. A psychologist attached to the Bucharest social assistance and child protection agencies shall attend the hearing of a child and shall produce a psychological report if requested by the court. ... Article 12 The judgment shall be reasoned within ten days from the date it was delivered on. The judgment is subject to appeal on points of law before the Bucharest Court of Appeal within ten days from the date it was communicated to the parties. ” 51. The relevant provisions of the Hague Convention, which entered into force in respect of Romania on 30 September 1992, read, in so far as relevant, as follows. “The States signatory to the present Convention, Firmly convinced that the interests of children are of paramount importance in matters relating to their custody, Desiring to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access, Have resolved to conclude a Convention to this effect, and have agreed upon the following provisions - ... Article 1 The objects of the present Convention are - (a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and (b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States. ... Article 3 The removal or the retention of a child is to be considered wrongful where - (a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and (b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. The rights of custody mentioned in sub-paragraph a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State. Article 4 The Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights. The Convention shall cease to apply when the child attains the age of 16 years. Article 5 For the purposes of this Convention - (a) “rights of custody” shall include rights relating to the care of the person of the child and, in particular, the right to determine the child ’ s place of residence; (b) “rights of access” shall include the right to take a child for a limited period of time to a place other than the child ’ s habitual residence. ... Article 11 The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children. If the judicial or administrative authority concerned has not reached a decision within six weeks from the date of commencement of the proceedings, the applicant or the Central Authority of the requested State, on its own initiative or if asked by the Central Authority of the requesting State, shall have the right to request a statement of the reasons for the delay. Article 12 Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith. The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment. Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child. Article 13 Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that - (a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or (b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views. In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child ’ s habitual residence. Article 14 In ascertaining whether there has been a wrongful removal or retention within the meaning of Article 3, the judicial or administrative authorities of the requested State may take notice directly of the law of, and of judicial or administrative decisions, formally recognised or not in the State of the habitual residence of the child, without recourse to the specific procedures for the proof of that law or for the recognition of foreign decisions which would otherwise be applicable. ... Article 16 After receiving notice of a wrongful removal or retention of a child in the sense of Article 3, the judicial or administrative authorities of the Contracting State to which the child has been removed or in which it has been retained shall not decide on the merits of rights of custody until it has been determined that the child is not to be returned under this Convention or unless an application under this Convention is not lodged within a reasonable time following receipt of the notice. Article 17 The sole fact that a decision relating to custody has been given in or is entitled to recognition in the requested State shall not be a ground for refusing to return a child under this Convention, but the judicial or administrative authorities of the requested State may take account of the reasons for that decision in applying this Convention. ... Article 19 A decision under this Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue. Article 20 The return of the child under the provisions of Article 12 may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms. ...” 52. The Explanatory Report on the 1980 Hague Child Abduction Convention, prepared by Elisa Pérez-Vera and published by The Hague Conference on Private International Law (HCCH) in 1982, seeks to throw into relief the principles which form the basis of the 1980 Convention and to supply to those who must apply the Convention a detailed commentary on its provisions. It appears from this report that, in order to discourage the possibility for the abducting parent to have his or her action recognised as lawful in the State to which the child has been taken, the Convention enshrines, in addition to its preventive aspect, the restoration of the status quo, by an order for immediate return of the child, which would make it possible to restore the situation that had been unilaterally and wrongfully changed. Compliance with custody rights is almost entirely absent from the scope of this Convention, as this matter is to be discussed before the relevant courts in the State of the child ’ s habitual residence prior to removal. The philosophy of the Hague Convention is to fight against the multiplication of international abductions, based always on a wish to protect children by acting as interpreter of their real interests. Accordingly, the objective of prevention and immediate return corresponds to a specific conception of “the child ’ s best interests”. However, as the child ’ s removal may be justified for objective reasons which have to do either with his or her person, or with the environment with which he or she is most closely connected, the Convention allows for certain exceptions to the general obligations on the States to ensure an immediate return (§ 25). Since the return of the child is the basic principle of the Convention, the exceptions to the general duty to secure it form an important element in understanding the exact extent of this duty, and it is possible to distinguish exceptions which derive their justification from three different principles (§ 27). Firstly, the authorities of the requested State are not bound to order the return of the child if the person requesting the return was not actually exercising custody rights or where his or her behaviour shows acceptance of the new situation (§ 28). Secondly, paragraphs 1b and 2 of Article 13 contain exceptions which clearly derive from a consideration of the interests of the child, to which the Convention gives a definite content. Thus, the interest of the child in not being removed from his or her habitual residence without sufficient guarantees of stability in the new environment gives way before the primary interest of any person in not being exposed to physical or psychological danger or being placed in an intolerable situation (§ 29). Lastly, there is no obligation to return a child when, in terms of Article 20, his or her return “would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms” (§ 31). The explanatory report, which sets out those exceptions, also emphasises the margin of appreciation inherent in the judicial function. 53. In 2003 the HCCH published Part II of the “Guide to Good Practice under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction”. Although primarily intended for the new Contracting States and without binding effect, especially in respect of the judicial authorities, this document seeks to facilitate the Convention ’ s implementation by proposing numerous recommendations and clarifications. The Guide repeatedly emphasises the importance of the Explanatory Report to the 1980 Convention, known as the Pérez-Vera Report, in helping to interpret coherently and understand the 1980 Convention (see, for example, points 3.3.2 “Implications of the transformation approach” and 8.1 “Explanatory Report on the Convention: the Pérez-Vera Report”). In particular, it emphasises that the judicial and administrative authorities are under an obligation, inter alia, to process return applications expeditiously, including on appeal (point 1.5 “Expeditious procedures”). Expeditious procedures should be viewed as procedures which are both fast and efficient: prompt decision-making under the Convention serves the best interests of children (point 6.4 “Case management”). 54. Council Regulation (EC) No. 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility, in so far as relevant reads as follows: Preamble (17)“In cases of wrongful removal or retention of a child, the return of the child should be obtained without delay, and to this end the Hague Convention of 25 October 1980 would continue to apply as complemented by the provisions of this Regulation, in particular Article 11. [...]” Article 11 “1. Where a person, institution or other body having rights of custody applies to the competent authorities in a Member State to deliver a judgment on the basis of the Hague Convention [..], in order to obtain the return of a child that has been wrongfully removed or retained in a Member State other than the Member State where the child was habitually resident immediately before the wrongful removal or retention, paragraphs 2 to 8 shall apply. [...] 3. A court to which an application for return of a child is made as mentioned in paragraph 1 shall act expeditiously in proceedings on the application, using the most expeditious procedures available in national law. Without prejudice to the first subparagraph, the court shall, except where exceptional circumstances make this impossible, issue its judgment no later than six weeks after the application is lodged [ ... ]” THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 55. The applicant complained, under Articles 6, 8, 14, 17 and 18 of the Convention, Article 1 of Protocol No. 12 and Article 5 of Protocol No. 7, that the Romanian courts had misinterpreted the provisions of the Hague Convention and relied exclusively on the opinion of his children to deny him their return to the U.S., and had failed to provide sufficient reasons for ignoring the injunctions delivered by the U.S. courts and the documents submitted by the U.S. authorities. He also complained that the courts had failed to expedite the proceedings, which had prevented him from exercising his parental rights as the children had remained under their mother ’ s control. He had therefore incurred much higher legal costs than the children ’ s mother. Also by unlawfully transferring the de facto jurisdiction on custody matters to the courts in the State of refuge, the Romanian courts had discriminated against him and placed him at a substantial disadvantage vis-à-vis his wife. 56. The Court reiterates that since it is master of the characterisation to be given in law to the facts of the case, it does not consider itself bound by the characterisation given by the applicant (see Guerra and Others v. Italy, 19 February 1998, § 44, Reports of Judgments and Decisions 1998-I ). In this context, it notes that Article 8 serves the wider purpose of ensuring proper respect for, inter alia, family life. Also, it observes that the complaint raised by the applicant under other Articles of the Convention is closely linked to his complaint under Article 8. Therefore, it considers that the applicant ’ s complaint may be examined only under Article 8 of the Convention, which reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Admissibility 57. The Court notes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ submissions 58. The applicant submitted that at the time of the Hague Convention proceedings he had had joint custody of his children with his wife. However, the Romanian authorities failed to ensure the speedy return of his children to the U.S. in breach of his rights guaranteed by the European Convention on Human Rights (“the Convention”), even though they had acknowledged the unlawfulness of his children ’ s retention in Romania. 59. The applicant further contended that the relationship he enjoyed with his children belonged to the sphere of family life protected by Article 8 of the Convention. In addition, he contested the Government ’ s argument that the interference with his family life had been lawful under Article 13 § 2 of the Hague Convention. Moreover, by refusing to return his children to the U.S., the Romanian courts had forced him to become a party to divorce ‑ and ‑ custody proceedings in two different countries and had ignored the proceedings pending before the American courts. Furthermore, he had been unable to exercise his parental rights because of the geographical distance. 60. The applicant also submitted that the Hague Convention proceedings had been excessively lengthy, had been plagued by errors and amounted to a failure of the Romanian authorities to take any measures, including extra ‑ judicial ones, to help reunite him with his children. In addition, the domestic courts had refused to order the return of his children by relying exclusively on their opinion, even though the children did not have the required maturity to make such a decision. Moreover, the courts had negated the effect of the Hague Convention by misinterpreting its provisions and failing to strike a fair balance between the competing interests of the parties. 61. The Government submitted that the decision rendered by the domestic courts did not constitute an interference with the applicant ’ s right to respect for family life. In any event, even if the Hague Convention proceedings did amount to an interference with the applicant ’ s family life, that interference had a legal basis, namely Article 13 § 2 of the Hague Convention. It had also served the legitimate aim of protecting the children ’ s best interests. 62. The Government stressed that the domestic non-judicial bodies, in particular the Romanian Ministry of Justice, had represented the applicant actively and appropriately before the domestic authorities. The applicant had been involved in the decision - making process, had been represented throughout the proceedings by a legal representative of his choosing, had been informed about all the relevant procedural steps and had been given the opportunity to submit oral and written observations. In addition, the domestic courts had a wide margin of appreciation in respect of the factual circumstances of the case and were better placed to decide them. The courts relied on all the evidence adduced in the case, including witnesses ’ testimonies, a social inquiry report produced by the relevant authorities in respect of the children ’ s living conditions and the children ’ s statement. The wording of the domestic judgments clearly showed that the judges had had the children ’ s best interests at heart, as well as the need to ensure their psychological development, and that they had struck a fair balance between the parties ’ conflicting interests. 63. The Government also submitted that the Hague Convention proceedings had unfolded without unreasonable delays. The domestic courts had administered an extensive amount of evidence without periods of inactivity and although the case file had been remitted for retrial once, the judgments delivered by the courts had been promptly communicated to the parties. 2. The Court ’ s assessment 64. The Court reiterates that the mutual enjoyment by parents and children of each other ’ s company constitutes a fundamental element of family life and is protected under Article 8 of the Convention (see Monory v. Romania and Hungary, no. 71099/01, § 70, 5 April 2005, and Iosub Caras v. Romania, no. 7198/04, §§ 28-29, 27 July 2006). 65. In the sensitive area of family relations, the State is not only bound to refrain from taking measures that would hinder the effective enjoyment of family life, but, depending on the circumstances of each case, should take positive action in order to ensure the effective exercise of such rights. In this area the decisive issue is whether a fair balance between the competing interests at stake – those of the child, of the two parents, and of public order – was struck, within the margin of appreciation afforded to States in such matters (see Maumousseau and Washington v. France, no. 39388/05, § 62, 6 December 2007 ), bearing in mind, however, that the child ’ s best interests must be the primary consideration (see Gnahoré v. France, no. 40031/98, § 59, ECHR 2000 ‑ IX) and that the objectives of prevention and immediate return correspond to a specific conception of “the best interests of the child” ( see X v. Latvia [GC], no. 27853/09, § 95, 26 November 2013 ). 66. The Court recalls that it has already held that within the legal framework set up by the Hague Convention and the Council Regulation, if the children ’ s opinions must be taken into account, their opposition is not necessarily an obstacle to their return (see Raw v. France, no. 10131/11, § 94, 7 March 2013). 67. Notwithstanding the State ’ s margin of appreciation, the Court is called upon to examine whether the decision-making process leading to an interference was fair and afforded those concerned to present their case fully, and that the best interests of the child were defended (see Ignaccolo ‑ Zenide v. Romania, no. 31679/96, § 99, ECHR 2000 ‑ I, with further references, and Tiemann v. France and Germany (dec.), nos. 47457/99 and 47458/99, ECHR 2000 ‑ IV). 68. Moreover, the States ’ obligations under Article 8 of the Convention are to be interpreted in harmony with the general principles of international law, and, in the context of international child abduction, particular account must be given to the provisions of the Hague Convention (see Golder v. the United Kingdom, 21 February 1975, § 29, Series A no. 18, and Ignaccolo-Zenide, cited above, § 95). 69. To that end, the Court considers that a harmonious interpretation of the European Convention and the Hague Convention can be achieved provided that the following two conditions are observed. Firstly, the factors capable of constituting an exception to the child ’ s immediate return in application of Articles 12, 13 and 20 of the said Convention, particularly where they are raised by one of the parties to the proceedings, must genuinely be taken into account by the requested court. That court must then make a decision that is sufficiently reasoned on this point, in order to enable the Court to verify that those questions have been effectively examined. Secondly, these factors must be evaluated in the light of Article 8 of the Convention (see Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 133, ECHR 2010 ). 70. In consequence, the Court considers that Article 8 of the Convention imposes on the domestic authorities a particular procedural obligation in this respect: when assessing an application for a child ’ s return, the courts must not only consider arguable objection to the child ’ s return, but must also make a ruling giving specific reasons in the light of the circumstances of the case. Both a refusal to take account of objections to the return capable of falling within the scope of Articles 12, 13 and 20 of the Hague Convention and insufficient reasoning in the ruling dismissing or accepting such objections would be contrary to the requirements of Article 8 of the Convention and also to the aim and purpose of the Hague Convention. Due consideration of such allegations, demonstrated by reasoning of the domestic courts that is not automatic and stereotyped, but sufficiently detailed in the light of the exceptions set out in the Hague Convention, which must be interpreted strictly (see Maumousseau and Washington, cited above, § 73), is necessary. This will also enable the Court, whose task is not to take the place of the national courts, to carry out the European supervision entrusted to it (see X v. Latvia [GC], cited above, § 107 ). 71. Furthermore, as the Preamble to the Hague Convention provides for children ’ s return “to the State of their habitual residence”, the courts must satisfy themselves that adequate safeguards are convincingly provided in that country, and, in the event of a known risk, that tangible protection measures are put in place. 72. The Court also reiterates that in matters pertaining to the reunification of children with their parents, the adequacy of a measure is also to be judged by the swiftness of its implementation, such cases requiring urgent handling, as the passage of time can have irremediable consequences for the relations between the children and the parent who does not live with them (see Iosub Caras, cited above, § 38). The delays in the procedure alone enable the Court to conclude that the authorities had not complied with their positive obligations under the Convention (see Shaw v. Hungary, no. 6457/09, § 72, 26 July 2011). 73. In the instant case, while they acknowledged that their mother ’ s refusal to return them to their habitual residence in the U.S. had been unlawful within the meaning of Article 3 of the Hague Convention, the domestic courts dismissed the applicant ’ s request for the return of his children. The Court finds that, in spite of the Government ’ s submission to the contrary, such a measure constituted an interference with the applicant ’ s right to respect for family life (see Iosub Caras, cited above, § 30, and Karrer v. Romania, no. 16965/10, § 42, 21 February 2012 ). 74. Notwithstanding the applicant ’ s arguments, the Court accepts, however, the Government ’ s submissions that the interference was provided for by law, namely Article 13 § 2 of the Hague Convention, which entered into force for Romania in September 1992 and forms part of its domestic law, and that it pursued the legitimate aim of protecting the children ’ s best interests. 75. The Court must therefore determine whether the interference in question was “necessary in a democratic society” within the meaning of Article 8 § 2 of the Convention, interpreted in the light of the above ‑ mentioned international instruments, and whether, when striking a balance between the competing interests at stake, the authorities acted swiftly and appropriate consideration was given to the children ’ s best interests, within the margin of appreciation afforded to the State in such matters. 76. The Court notes that the domestic courts examined whether the children ’ s retention to Romania had been justified and whether there existed any exceptions under the Hague Convention precluding their return to the U.S. In doing so, the courts examined the evidence submitted by the parties and found that the children ’ s father, who enjoyed joint custody of the children and had exercised it prior to their departure from the U.S., had not agreed to their retention in Romania. In addition, there was no grave risk that their return would expose them to physical or psychological harm or to an intolerable situation, in spite of the strict social and religious upbringings as well as the physical punishments argument the applicant ’ s wife had raised before the domestic courts (see paragraphs 26 and 32, above). 77. The Court also notes that the domestic court ’ s decision to refuse the children ’ s return to their State of habitual residence had been based on their objection to return. In this connection, the Court notes that the first-instance court had heard the children directly in the absence of any of their parents or relatives and after they had received psychological counselling. All the three children had freely stated that they objected to their return to the U.S. In addition, the domestic courts provided reasons why they considered that the children had attained a sufficient degree of maturity for their opinions to be taken into consideration and for refusing to distinguish between the situations of the three children on the basis of their age (see paragraph 33, above). 78. While, the Court would like to underline its concern with the fact that only one of the children had been over ten years old at the time, namely almost eleven, and met the minimum lawful age requirement for her opinion to be heard by the domestic courts, it is prepared to accept that the conditions for the domestic courts to be able to rely on the exception provided by Article 13 § 2 of the Hague Convention had been met. In particular, the children had objected to their return and they had been considered by the judicial authorities to be sufficiently mature for their statements to be taken into account. In addition, given the wording of the aforementioned Article of the Hague Convention, the Court can also accept that the opinion of the children can be an independent exception under the Hague Convention which, on its own, may support the exercise of discretion to refuse to order a return. 79. In terms of the weight the domestic courts gave to the children ’ s objections, the Court notes that according to the reasoning of the domestic courts they were decisive for their decision to refuse their return to the State of their habitual residence. 80. In this connection, the Court observes, however, that Article 13 § 2 of the Hague Convention or its interpretation by the Elisa Pérez-Vera Explanatory Report does not require a judge to automatically accede to the child ’ s stated wishes even if the said judge finds that the child has attained a sufficient degree of maturity (see paragraphs 51 and 52, above). Therefore, the Court considers that while the Convention recognizes that the objecting child should have a voice, it does not consider that voice to amount to a veto in the process of deciding whether he or she will be returned. Consequently, it appears that the domestic courts may be called to examine also other aspects of the child ’ s circumstances before exercising the discretion to refuse to order a return. 81. In this context the Court notes that the domestic courts also examined other aspects of the children ’ s circumstances. However, it is not entirely convinced that the domestic courts had sufficiently balanced the applicant ’ s interest of a right to family life against the competing interest of the other parties in the case and therefore had sufficiently protected the best interest of the children as defined in the light of the Hague Convention principles. In particular, the Court notes that when assessing the risks entailed by a potential separation of the children from their current environment, the last-instance court concluded that it amounted to a serious risk for them (see paragraph 33, above). Although, it is uncontested that in reaching its conclusion the last-instance court mentioned, without going into detail, the conclusions of the psychological evaluation reports available to the domestic case file, the Court notes that the said court gave no express consideration to the issue of whether the children could quickly re-adapt to a return in the U.S. Moreover, it does not appear that the courts attempted to examine if it would have been possible for the children to return to the U.S. accompanied by their mother and whether arrangements could have been made within the legal framework of the State of habitual residence or following agreements with the father for them to live together, separately from their father, pending the outcome of divorce and custody proceedings, and consequently whether such arrangements would have alleviated the serious risks mentioned by the court. 82. Such express considerations appear even more relevant given that according to the psychological evaluation report and the social investigation report submitted by the parties before the Court the opinion of the psychologist was confined to the harm to the child which would flow from an immediate separation from their mother (see paragraphs 15 and 18, above). The reports did not directly address the question of the children ’ s return or stated that it would be in any way harmful if they were to return to the U.S. accompanied by their mother and lived separately from their father. The fact that the applicant ’ s wife appeared to have refused the amiable settlement of the case prior to the initiation of the Hague Convention proceeding, does not amount in the Court ’ s view to a justification for a failure to clearly and duly consider the aforementioned aspect. 83. In addition, the Court notes from the outset that Article 11 of the Hague Convention imposes a six-week time-limit for a return decision, failing which the decision body may be requested to give reasons for the delay. The Court further notes that the European Union subscribes to the same philosophy, accepting delays in respect of the afore-mentioned time ‑ limit only in exceptional circumstances, in the framework of a system involving only EU Member States and based on a principle of mutual trust. Despite this recognised urgency, in the instant case a period of more than thirteen months elapsed from the date on which the applicant lodged his request for the return of the children to that on which the final decision was taken (see paragraphs 16 and 31, above). 84. The Court notes in this connection that the appellate court had quashed the judgment of the first-instance court on account of procedural flaws which had been independent of the applicant ’ s actions. Also the domestic authorities had allowed for a month and several days to lapse before they had re-registered the case on the fist-instance court ’ s docket. In addition, the first-instance court held the first re-hearing of the case only one month and several weeks after the file had been re-registered on its docket (see paragraphs 23-26, above). 85. The Court also observes that the Bucharest County Court failed to provide any explanation to the applicant for the length of the proceedings following his request of 12 February 2010 for a statement on the delay in the proceedings (see paragraph 29, above). In addition, no satisfactory explanation was put forward by the Government to justify the delays. 86. Consequently, the Court considers that the domestic authorities failed to act expeditiously in the proceedings to return the children, manifestly in breach of the applicable law. 87. In this connection, the Court notes that the domestic courts considered that a potential return of the children to the U.S. against their will would have destabilized them and would have subjected them to pressures which would have negatively affected their future development, particularly since the relationship between their parents had radically changed since they had left the U.S. (see paragraph 34, above). 88. The Court recalls that the interests of the child are paramount in such cases. Thus it may well have been justified, more than thirteen months after the removal from the U.S. of the applicant ’ s children, for the domestic courts to hold that the family situation they had been familiar with at the time of the departure had changed and that it was in their best interests to remain in Romania with their mother although, at that time, no final decision had established her residence there. However, where the Court accepts that a change in the relevant facts may exceptionally justify such a decision, it must be satisfied that the change was not brought about by the State ’ s actions or inactions (see, mutatis mutandis, Sylvester v. Austria, applications no. 36812/97 and 40104/98, § 59, 23 April 2003 ). 89. Having found that the time it took for the courts to adopt the final decision in the present case failed to meet the urgency of the situation, the Court considers that the change in the children ’ s circumstances was also considerably influenced by the slow reaction of the authorities. 90. In the light of the foregoing, the Court considers that the applicant suffered a disproportionate interference with his right to respect for his family life, in that the decision-making process under domestic law did not satisfy the procedural requirements inherent in Article 8 of the Convention. 91. It follows that there has been a violation of Article 8 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 92. The applicant complained that the divorce - and - custody proceedings instituted against him by his wife had been unreasonably lengthy. He relied on Article 6 § 1 of the Convention, which, in so far as relevant, reads as follows: “In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing within a reasonable time by [a] ... tribunal ...” A. Admissibility 93. The Court notes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ submissions 94. The applicant submitted that the divorce - and - custody proceedings instituted against him by his wife had been excessively lengthy. While he acknowledged that the proceedings had been complex and unusual, he argued that the complexity of the case was not sufficient to justify the delays. He further submitted that, unlike the authorities, he had not been responsible for any of the repeated procedural delays and could not be held responsible for using the available means to present his case. 95. The Government submitted that the present case was particularly complex considering the exceptional character of both the factual and the legal questions involved. In addition, the proceedings were not plagued by long periods of inactivity on the part of the authorities. The divorce ‑ and ‑ custody proceedings had been suspended for more than thirteen months Therefore, that thirteen - month period should not be taken into account when assessing the total length of the proceedings. 96. The Government contended that numerous procedural steps had been undertaken during the proceedings following requests by the applicant, including attempts to hear witnesses residing in the U.S. by means of international rogatory commission proceedings and examination of preliminary objections raised by him concerning the alleged lack of jurisdiction of the Romanian courts. Therefore, the applicant had substantially contributed to the length of the proceedings. 97. The Government further submitted that the length of the proceedings had not been excessive and had not had a negative impact on the applicant. 2. The Court ’ s assessment 98. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case; the conduct of the applicant and the relevant authorities; and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII). 99. While it is not the Court ’ s task to determine whether the proceedings in which the applicant was involved were properly stayed (see, mutatis mutandis, Broka v. Latvia, no. 70926/01, § 24, 28 June 2007), delays caused by the adjournment or suspension of proceedings pending the outcome of another case can be attributable to the State (see, mutatis mutandis, König v. Germany, 28 June 1978, §§ 104-05, Series A no. 27). Furthermore, when assessing the relevance and reasonableness of an adjournment of a case pending the outcome of another case, the Court must take into account what is at stake for the persons involved (see, mutatis mutandis, Tibbling v. Sweden, no. 59129/00, § 32, 11 October 2005). 100. The Court notes that the divorce-and-custody proceedings instituted against the applicant by his wife lasted from 14 October 2008 to 12 March 2014. Consequently, the period to be taken into consideration is five years and five months for three levels of jurisdiction. 101. The Court considers that there have been repeated procedural delays over the entire course of the proceedings. It can accept that the case against the applicant could be regarded as complex and that the applicant was also responsible for some of the delays. That being said, it cannot but note that the proceedings, including the period in which they were adjourned pending the outcome of the Hague Convention proceedings, have lasted for more than four years and eight months only before the first ‑ instance court. Given what was at stake for the applicant and the fact that it has already found that the Hague Convention proceedings were excessively lengthy, the Court considers that the length of this period and the overall length of the proceedings cannot be justified by the complexity of the case and the adjournments caused by the applicant alone. In the Court ’ s opinion, the length of the proceedings can only be explained by the failure of the domestic authorities to deal with the case diligently (see Gümüşten v. Turkey, no. 47116/99, §§ 24-26, 30 November 2004). 102. Having regard to all the evidence before it, the Court finds that the length of the divorce-and-custody proceedings at issue does not satisfy the “reasonable time” requirement. 103. There has accordingly been a breach of Article 6 § 1 of the Convention. III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 104. The applicant complained, under Article 6 of the Convention, of the unfairness of the Hague Convention proceedings, in particular that the interlocutory judgment of 13 April 2009 had been missing from the domestic case file and that the domestic authorities had failed to send him a copy of the final judgment of 25 March 2010. In respect of the divorce ‑ and ‑ custody proceedings instituted against him by his wife, after the case had been communicated to the Romanian Government he complained under the same Article that the domestic courts ’ refusal to hear foreign witnesses on his behalf through the international rogatory commission proceedings or to expedite the said proceedings, and the fact that he had had to incur high financial costs in order to submit the relevant testimonial and documentary evidence, had amounted to a breach of his right to a fair trial and prevented him from defending his rights. 105. The Court has examined the complaints as submitted by the applicant. However, having regard to all the material in its possession, and in so far as they fall within its jurisdiction, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention. IV. APPLICATION OF ARTICLES 46 AND 41 OF THE CONVENTION A. Article 46 106. Article 46 of the Convention provides, in so far as relevant: “ 1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties. 2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution. ... ” 107. Given the special circumstances of the present case, in particular, the subsequent developments in the children ’ s and their family ’ s situation, the Court does not consider that its judgment should imply the return of the applicant ’ s children to the U.S. (see mutatis mutandis Pontes v. Portugal, no. 19554/09, § 1 10, 10 April 2012). B. Article 41 108. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 1. Damage 109. The applicant claimed 22,559 United States dollars (USD) (approximately 16,500 euros (EUR)) in respect of pecuniary damage and USD 180,000 (approximately EUR 131,600) in respect of non-pecuniary damage. He argued that the pecuniary damages claimed were for costs incurred for legal representation and transportation related to the parallel divorce-and-custody proceedings which he had had to institute before the U.S. courts. In addition, he contended that he had suffered non ‑ pecuniary damage owing to the anxiety and distress he had experienced as a result of the excessively lengthy proceedings before the Romanian courts and the separation from his children. 110. The Government submitted that the pecuniary damages claimed by the applicant actually represented costs and expenses incurred by him and should be examined accordingly. They contended that the finding of a violation would provide sufficient just satisfaction with regard to non ‑ pecuniary damage. 111. The Court shares the Government ’ s view that the pecuniary damages claimed by the applicant represent costs and expenses incurred by him and considers that the claim should be examined accordingly. Consequently, it finds no reason to award the applicant any sum under this head. 112. The Court considers that the applicant must have suffered distress as a result of the Hague Convention and the divorce-and-custody proceedings in which he was involved. It considers that sufficient just satisfaction would not be provided solely by a finding of a violation. Consequently, making an assessment on an equitable basis, the Court awards the applicant EUR 9,750 in respect of non-pecuniary damage, plus any tax that may be chargeable. 2. Costs and expenses 113. The applicant also claimed a total of EUR 27,497, including the aforementioned EUR 16,500, for the costs and expenses incurred before the domestic Romanian and American courts, and EUR 2,365 for those incurred before the Court. He submitted copies of invoices and court judgments supporting part of his claims. 114. The Government submitted that the amount claimed by the applicant was excessive and was not fully supported by the documents submitted by him. 115. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, having regard to the above criteria, the supporting documents submitted by the applicant, the fact that part of the expenses concerned proceedings in countries outside the Court ’ s jurisdiction and the nature of the issues dealt with, the Court considers it reasonable to award the sum of EUR 8,000 to cover the applicant ’ s costs and expenses. 3. Default interest 116. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 8 of the Convention, finding that the applicant had suffered a disproportionate interference with his right to respect for his family life, in that the decision-making process under domestic law had not satisfied the procedural requirements inherent in Article 8. |
46 | Applications lodged by the parent whose child had been abducted by the other parent | II. RELEVANT DOMESTIC, EUROPEAN AND INTERNATIONAL LAW AND PRACTICE A. Hague Convention 57. For the purposes of the present case, the key provisions of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction state as follows: “The States signatory to the present Convention, Firmly convinced that the interests of children are of paramount importance in matters relating to their custody, Desiring to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access, Have resolved to conclude a Convention to this effect, and have agreed upon the following provisions – ... Article 1 The objects of the present Convention are – (a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and (b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States. ... Article 11 The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children. ... Article 12 Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith. The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment. ... Article 13 Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that – (a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or (b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. ... In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child ’ s habitual residence. ... Article 20 The return of the child under the provisions of Article 12 may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms. ...” B. Further relevant provisions of European and international law 58. Further relevant provisions of the Hague Convention, the United Nations Convention on the Rights of the Child, the Charter of Fundamental Rights of the European Union and Regulation No. 2201/2003 have recently been summarised in the Court ’ s judgment in the case of X v. Latvia ([GC], no. 27853/09, §§ 34-42, ECHR 2013). C. Relevant domestic law and practice 1. Constitution 59. Article 127 reads as follows: “1. The Constitutional Court shall decide on complaints by natural or legal persons alleging a violation of their fundamental rights or freedoms ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court. 2. If the Constitutional Court finds a complaint to be justified, it shall deliver a decision stating that the person ’ s rights or freedoms as set out in paragraph 1 have been violated by a final decision, specific measure or other act and shall quash that decision, measure or act. If the violation that has been found is the result of a failure to act, the Constitutional Court may order [the authority] which has violated the [person ’ s] rights or freedoms to take the necessary action. At the same time it may remit the case to the authority concerned for further proceedings, order that authority to refrain from violating the [person ’ s] fundamental rights and freedoms ... or, where appropriate, order those who have violated the rights or freedoms set out in paragraph 1 to restore the situation to that existing prior to the violation. 3. In its decision on a complaint the Constitutional Court may grant appropriate financial compensation to a person whose rights under paragraph 1 have been violated. 4. The liability for damage or other loss of a person who has violated the rights or freedoms as referred to in paragraph 1 shall not be affected by the Constitutional Court ’ s decision.” 2. Constitutional Court Act (Law no. 38/1993 Col., as amended) 60. Article 21 : “1. The parties to proceedings ( účastníci konania ) are the plaintiff and, as the case may be, the person against whom the application is directed, as well as [other] persons so identified under this Act. 2. Intervening parties to proceedings ( vedľajší účastníci konania ) are persons so identified under this Act, as long as they do not waive this status. They have the same rights and duties in the proceedings as the parties, but they act always in their own name. ” 61. Article 51 “ The parties to proceedings [ concerning individual complaints] are the complainants and the person against whom the complaint is directed.” 3. The Constitutional Court ’ s practice as regards third-party interventions 62. In a judgment of 27 May 2010 in case no I. ÚS 223/09, the Constitutional Court ruled on the merits of an individual complaint by a private entity against decisions of the Supreme Court in an administrative case. In the proceedings leading up to that judgment, the Constitutional Court had admitted sixteen individuals and one municipality to the proceedings as third parties on behalf of the Supreme Court. It observed that, as regards proceedings before the Constitutional Court, the Constitutional Court Act was the lex specialis in relation to the CCP. It further observed that, contrary to the CCP (Article 93 § 1), the Constitutional Court Act (section 21(2)) provided no basis for third parties to intervene in proceedings on individual complaints. Nevertheless, the Constitutional Court found that there could be no doubt that the individuals and the municipality in question had a legal interest in the outcome of the proceedings. Therefore, in conformity with the applicable constitutional principles, the standing of an intervening third party was to be granted to them and their observations were to be taken into account. 63. In its judgment cited in the precedent paragraph, the Constitutional Court referred to its previous judgments of 9 September 2008 (case no. II. ÚS 91/08 ) and 14 June 2006 (case no. II. ÚS 122/05 ). In the former case, a municipality had claimed the status of an intervening party. Although this status was declined with reference to section 21(2) of the Constitutional Court Act as having no legal basis, the views of the municipality were nevertheless taken into account, as it was recognised that it had a legal interest in having a fair trial. In the latter case, a third party was denied the right to intervene without any explanation. 64. In another unrelated case, no. IV. ÚS 249/11, the Constitutional Court examined an individual complaint of an alleged violation of the complainant ’ s rights to judicial protection and fair trial in the proceedings in an action by his former wife against him for maintenance payments. In a judgment of 20 June 2013 the Constitutional Court observed that, upon the request of the complainant ’ s former wife, she had been allowed to make written submissions in respect of the complaint. In its judgment, the Constitutional Court cited the relevant part of those submissions but there is no indication how, if at all, it took them into account. There is equally no indication that it took any formal decision as to the standing of the complainant ’ s former wife in the proceedings before the Constitutional Court. 4. The U.N. Convention on the Rights of the Child and the Hague Convention in Slovakia 65. The U.N. Convention on the Rights of the Child entered into force in respect of Slovakia on 6 February 1991 (Notice of the Ministry of Foreign Affairs no. 104/1991 Coll.), while the Hague Convention did so on 1 February 2001 (Notice of the Ministry of Foreign Affairs no. 119/2001 Coll.). 5. Other practice 66. In an unrelated international child abduction case before the Bratislava II District Court (case no. 49P 414/2007 ), an extraordinary appeal on points of law was lodged by the PPS against a final, binding and enforceable return order. On 4 February 2009, in response to an enquiry prompted by the father of the child concerned, the President of the District Court provided the Office of the President of Slovakia with an update on the state of the proceedings and added the following comment: “It does not behove me to judge the actions of the Office of the Prosecutor General. I am not privy to the reasons why an extraordinary appeal on points of law was lodged. I detect a problem in the system, which allows for such a procedure even in respect of decisions on the return of minor children abroad ( ‘ international child abductions ’ ). Irrespective of the outcome of the specific case, the possibility of lodging an appeal on points of law and an extraordinary appeal on points of law in cases of international child abduction protracts the proceedings and negates the object of the [Hague Convention], which is as expeditious a restoration of the original state [of affairs] as possible, that is to say the return of the child to their country of habitual residence within the shortest possible time.” THE LAW I. ALLEGED VIOLATIONS OF THE CONVENTION 67. Relying on Articles 6 and 8 of the Convention, the applicant complained that : (i) the Slovakian authorities had failed to ensure the prompt return of the child; (ii) the proceedings for the child ’ s return had not been expeditious; (iii) in the Hague Convention proceedings he had not been provided with a translation of judgments and decisions into a language he understood; (iv ) those proceedings had been interfered with by an arbitrary judgment of the Constitutional Court, given in proceedings to which he had not been a party, and had thus not been able to affect the outcome of despite having a direct interest in it; and (v) as a result of the foregoing, he had been deprived of contact with his child for a protracted period of time. A. Admissibility 68. The Government objected that the guarantees of Article 6 of the Convention did not apply ratione materiae to the proceedings commenced by the mother ’ s petition of 31 August 2010 for an order governing the exercise of parental rights and responsibilities in respect of the child (see paragraphs 8 to 10 above) and to those concerning her petition for reopening of the Hague Convention proceedings (see paragraphs 29 and 30 above). 69. The Government also objected that, as far as the Hague Convention proceedings were concerned, the applicant had failed to comply with the requirement of exhaustion of domestic remedies under Article 35 § 1 of the Convention, especially in so far as he was complaining under Article 6 of the Convention about the length of those proceedings and their alleged unfairness and under Article 8 of the Convention of a violation of his right to respect for his private and family life in those proceedings. In the Government ’ s submission, the applicant could have, but had not, raised such matters before the Constitutional Court by way of a complaint under Article 127 of the Constitution. 70. The Court observes, first of all, that the present application is not directly concerned with the specific proceedings referred to in the Government ’ s first objection, as summarised in paragraph 68 above, and that these proceedings are captured in the present judgment merely as a part of the background and context of the present case. It therefore finds that this part of the Government ’ s submission calls for no separate judicial examination. 71. As to the Government ’ s non-exhaustion objection, in respect of the complaints summarised under numerals (i) to (iii) in paragraph 67 above, the Court observes that the proceedings under the Hague Convection ended by the dismissal on 20 November 2012 of the applicant ’ s appeal against the ruling refusing his application for an order for the return of the child (see paragraph 49 above). 72. The Court is in agreement with the Government ’ s argument that, in so far as the applicant has complained of the length of these proceedings and their final outcome, including the question of the language of the proceedings, be it under Article 6 or Article 8 of the Convention, such complaints could and should first have been made before the Constitutional Court. By not having done so, the applicant has failed to exhaust domestic remedies. In consequence, the relevant part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention. 73. However, the Court notes that the applicant also complained of a violation of his Convention rights due to the Constitutional Court ’ s judgment of 13 December 2011 ( the complaints summarised under numerals (iv) and (v) in paragraph 67 above). 74. As regards those complaints, the Court observes that the Constitutional Court ’ s judgment was final and not amenable to appeal before the Constitutional Court or any other body (see paragraph 4 7 above). 75. Therefore, in respect of the relevant part of the application, the Government ’ s objection of non ‑ exhaustion of domestic remedies has to be dismissed. Noting that it is neither manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention nor inadmissible on any other ground, the Court finds that it must be declared admissible. B. Merits 76. Relying on Articles 6 and 8 of the Convention, the applicant complained that the Hague Convention proceedings had been arbitrarily interfered with by the Constitutional Court ’ s judgment of 13 December 2011 and that he had consequently been deprived of contact with his child for a protracted period of time. 77. The Court considers that, on the facts of the present case, these complaints most naturally fall to be examined under Article 8 of the Convention, the relevant part of which reads as follows: “1. Everyone has the right to respect for his private and family life ... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 1. The parties ’ arguments 78. The applicant contended that he had not been informed of the proceedings before the Constitutional Court leading up to its judgment of 13 December 2011, let alone been able to be a party to them. Yet this judgment had had a direct impact on his rights, in that it had quashed the final, binding and enforceable order for the return of the child, had led to a new round of the Hague Convention proceedings, with the attendant continued deprivation of his contact with the child, and, in view of the critical importance of the passage of time in those proceedings, had ultimately led to the denial of the child ’ s return. 79. In reply, the Government admitted that the Constitutional Court ’ s judgment of 13 December 2011 had constituted an interference with the applicant ’ s Article 8 rights but contended that such interference had been justified, in that it had pursued the legitimate aim of promoting the best interests of the child. In addition, the Government relied on the Constitutional Court ’ s judgment of 27 May 2010 in case no I. ÚS 223/09 (see paragraph 6 2 above) and submitted that, just as had been possible in that case, it had been open to the applicant to seek admission to the Constitutional Court proceedings in the present case as an intervening third party. The Government emphasised that the entire Hague Convention proceedings had been expeditious and considered that the proceedings before the Constitutional Court had also been conducted with sufficient promptness. In addition, they submitted that the applicant had ignored the mother ’ s invitations to come and see the child in Slovakia and had limited himself to telephone communications with the child, despite having been in Slovakia on several occasions. 80. In a rejoinder, the applicant submitted that his first step towards the initiation of the Hague Convention proceedings had not been his application of 21 October 2010 to the Bratislava I District Court, but rather his complaint of 5 August 2010 to the Spanish Central Authority (see paragraphs 1 1 and 1 2 above). In addition, he contended that he had in fact been made to contribute towards the maintenance of the child under the interim measure of 14 September 2010, and had done so after it had been served on him on 9 February 20 11 (see paragraph 9 above). As to the proceedings before the Constitutional Court, the applicant emphasised that they had concerned a final, binding and enforceable court order and that neither he nor his lawyer had been informed of them, which was why he had not, in fact, had any ability to take part in them. In so far as the Constitutional Court judgment complained of had been based on the failure of the court-appointed representative to show up at scheduled hearings, such failure had not been imputable to him and it had been unfair to make him bear the consequences of such failure. As a result of the Constitutional Court ’ s judgment, the Hague Convention proceedings had been arbitrarily protracted and their purpose frustrated. Lastly, the applicant submitted that he considered the mother ’ s actions to be criminal in nature, which had made him apprehensive and reluctant to seek more active contact with the child upon the mother ’ s invitation. 81. In a further rejoinder, the Government argued that the Constitutional Court was under no statuary duty to notify third parties of the commencement of proceedings on individual complaints with possible repercussions on such third parties ’ rights and interests. This was due to the specific role the Constitutional Court played in the constitutional system of Slovakia. As to the final outcome of the Hague Convention proceedings, the Government referred to the reasons relied on by the domestic courts and emphasised that the child had already spent a significant amount of time in Slovakia and had become fully integrated into society there. 2. The Court ’ s assessment 82. The Court observes that there was no dispute between the parties that the relationship between the applicant and the child was one of family life, that the proceedings for the return of the child under the Hague Convention impacted on the applicant ’ s right to respect for his family life and that, consequently, his complaint fell within the ambit of Article 8 of the Convention. 83. The Court reiterates that, while the essential object of Article 8 of the Convention is to protect the individual against arbitrary action by the public authorities, there are in addition positive obligations inherent in an effective “respect” for family life (see, for example, Chabrowski v. Ukraine, no. 61680/10, § 104, 17 January 2013, with further references). 84. In that respect, the Court reiterates that positive obligations under Article 8 of the Convention may involve the adoption of measures designed to secure respect for family life even in the sphere of relations between individuals, including both the provision of a regulatory framework of adjudicatory and enforcement machinery protecting individuals ’ rights and the implementation, where appropriate, of specific measures (see, mutatis mutandis, Tysiąc v. Poland, no. 5410/03, § 110, ECHR 2007 ‑ I). 85. On the facts of the present case, the Court observes that the primary interference with the applicant ’ s right to respect for his family life may not be attributed to an action or omission by the respondent State but rather to the actions of the mother, a private party, who – as the domestic courts concluded – has wrongfully retained the child in Slovakia. 86. It therefore remains to be ascertained whether there were any positive obligations on the part of the respondent State that required to be taken with a view to securing to the applicant his right to respect for his family life and, if so, whether any such positive obligations have been complied with by the respondent State. 87. Furthermore, the Court has held in the past that the State ’ s positive obligations under Article 8 include a right for parents to have access to measures which will enable them to be reunited with their children and an obligation on the national authorities to take such action (see Chabrowski, cited above, § 105). 88. The Court observes that in disputes over the status of children comprising an international element a question often arises as to the jurisdiction to deal with such disputes and that, in a situation of international child abduction, that question is answered under Regulation No. 2201/2003 with reference to the child ’ s habitual residence immediately before the wrongful removal or retention (Article 10). 89. Moreover, the Court notes that, by operation of the Hague Convention, the courts of the country where a child is removed or retained are to carry out proceedings aimed at establishing whether the removal or retention has been wrongful (Article 3 of the Hague Convention) and, unless there are circumstances preventing the child ’ s return within the meaning of Article 13 or 20 of the Hague Convention, to order the return of the child to his or her country of habitual residence (Article 12 of the Hague Convention ). In the European Union this is subject to the provisions of Article 11 §§ 2 – 8 of Regulation No. 2201/2003. 90. The Court further observes that Slovakia is both a Member State of the European Union and a Contracting State of the Hague Convention. It follows that, in the circumstances of the present case, it was under an obligation to carry out the proceedings for the return of the child, which it did relying on the Hague Convention, as complemented by Regulation No. 2201/2003 (see paragraphs 12 et seq. and 50 et seq. above), with a view to enabling the courts in the country of the child ’ s habitual residence to resolve all questions relating to the child ’ s status, including matters relating to the applicant ’ s parental rights and responsibilities. In that respect, the Court notes that the parties have pleaded the case exclusively in terms of the Hague Convention and that the domestic courts essentially dealt with the case within the framework of that instrument. 91. As to the ensuing question whether in discharging its obligations under the Hague Convention Slovakia has complied with its positive obligations under Article 8 of the Convention, the Court finds it opportune, at the outset, to refer to the summary of the general principles applicable in any assessment under the Convention of complaints concerning proceedings under the Hague Convention set out in its recent judgment in the case of X v. Latvia [GC] (cited above, §§ 99-108). 92. In respect of those general principles, the Court would observe, in particular, that the extent of its jurisdiction under Article 32 of the Convention is limited to matters concerning the interpretation and application of the Convention and the Protocols thereto. Nevertheless, in the area of international child abduction, the obligations imposed on the Contracting States by Article 8 of the Convention must be interpreted in the light of the requirements of the Hague Convention and those of the Convention on the Rights of the Child, and of the relevant rules and principles of international law applicable in relations between the Contracting Parties (see X v. Latvia [GC], cited above, § 93, with further references). 93. The decisive issue in that type of case is whether the fair balance that must exist between the competing interests at stake – those of the child, of the two parents, and of public order – has been struck, within the margin of appreciation afforded to States in such matters, taking into account, however, that the best interests of the child must be the primary consideration and that the objectives of prevention and immediate return correspond to a specific conception of “the best interests of the child” (see X v. Latvia [GC], cited above, § 95, with further references). 94. In addition, whilst Article 8 of the Convention contains no explicit procedural requirements, the decision ‑ making process involved must be fair and such as to ensure due respect of the interests safeguarded by Article 8 (see Buckley v. the United Kingdom, no. 20348/92, § 76, ECHR 1996-IV). In other words, the procedural protection enjoyed by applicants at the domestic level in respect of their rights protected under Article 8 of the Convention has to be practical and effective (see, among many other authorities, Papamichalopoulos and Others v. Greece, § 42, 24 June 1993, Series A no. 260-B, and also Turek v. Slovakia, no. 57986/00, § 113, ECHR 2006 ‑ II (extracts) ), and consequently compatible with that Article. 95. Turning again to the specific circumstances of the present case, the Court notes that, in the initial round of examination, the applicant ’ s application for the return of the child under the Hague Convention was examined once by courts at two levels of jurisdiction, that their order for the return of the child became final, binding and enforceable, and that the order was nevertheless subsequently examined by the Supreme Court and the PPS, neither of these institutions having established any errors of substance or procedure justifying its quashing. 96. It was then that the Constitutional Court intervened, by quashing the Supreme Court ’ s decision, which then led to the quashing of the return order and the remittal of the matter to the first - instance court. 97. The Court observes that although the Constitutional Court ’ s judgment in the present case did not constitute a final decision on the applicant ’ s Hague Convention application, in view of the critical importance attached to the passage of time in the proceedings of this type it was instrumental in the ultimate determination of the applicant ’ s application. 98. The Court therefore finds it appropriate to examine whether the Constitutional Court ’ s intervention in the proceedings was compatible with the respondent State ’ s positive obligation as specified above. 99. In that respect, the Court notes that there is no issue in terms of the lawfulness of the Constitutional Court ’ s judgment and considers that it may be acknowledged that the judgment served the legitimate aim of protecting the rights and freedoms of others, namely those of the child. 100. The Court shall therefore proceed to examine whether the contested judgment could be considered as having struck a fair balance between the competing interests at stake. From that perspective, the Court finds the applicant ’ s procedural standing and protection, if any, in relation to the proceedings before the Constitutional Court to be of particular importance. 101. In that respect, the Court observes that the Constitutional Court proceedings were initiated by the mother and that the defendant was the Supreme Court. Consequently, the applicant was neither plaintiff nor defendant in those proceedings. 102. The Court further observes that the proceedings before the Constitutional Court are governed by the Constitutional Court Act, as the lex specialis, and that this Act does not envisage third parties, such as the applicant in the present case, having standing to intervene. 103. In so far as the Government argued that it was open to the applicant to seek admission to the Constitutional Court proceedings as an intervening third party by virtue of the subsidiary application of the relevant provisions of the CCP, the Court finds the Constitutional Court ’ s practice in that respect at the time of its judgment complained of in the present case to be rather inconclusive. 104. Be that as it may, the Court notes that there does not appear to be any official means by which a third party could learn about Constitutional Court proceedings concerning it. 105. Moreover, in the present case there is no indication that, at the relevant time, the applicant actually had any knowledge of the constitutional complaint by the mother. As a result, the proceedings before the Constitutional Court were carried out without his participation and he had no opportunity to influence their outcome, despite having a legitimate interest in it. 106. The Court finds that the complete lack of any procedural protection for the applicant before the Constitutional Court in this case was aggravated by an additional factor. 107. In particular, the Court considers that the impugned judgment has to be seen in a wider procedural context, taking into account the fact that, prior to it being rendered, all ordinary and extraordinary remedies against the return order had been exhausted. These included the mother ’ s appeal, appeal on points of law, petition for an extraordinary appeal on points of law, petition for reopening, and repeated petitions to have the enforcement proceedings stayed. To make matters worse, it is to be noted that, upon one of such petitions being filed, the enforcement proceedings were stayed on a ground ( petition for reopening pending ) that later turned out to be wholly unsupported at law (reopening of proceedings concluded by a decision impermissible at law) (see paragraphs 30, 36 and 37 above). 108. As regards the existing procedural framework for Hague Convention proceedings in Slovakia, which the present case was ultimately concluded under as a result of the impugned Constitutional Court judgment, the Court notes in particular the opinion expressed by the President of the Bratislava II District Court (see paragraphs 6 6 above), which may be understood as suggesting that there is a systemic problem in that appeals and extraordinary appeals on points of law are allowed in the course of return proceedings, with the attendant effect of negating the object and purpose of the Hague Convention. 109. The remittal of the present case to the ordinary courts resulted in yet more time being taken to deal with the case, which in the given type of case is of relevance for the outcome of the proceedings. The ultimate dismissal of the applicant ’ s application under the Hague Convection bears witness to this premise, as, in fact, does the relevant part of the Government ’ s arguments before the Court (see paragraph 81 above). 110. As a result, for a protracted period of time the status of the child has not been determined by any court, the courts in Slovakia having no jurisdiction to do so, and the courts in Spain having no practical opportunity to do so, a state of affairs which can by no means be said to have been in the child ’ s best interests. 111. The above considerations are sufficient for the Court to conclude that the respondent State has failed to secure to the applicant the right to respect for his family life by providing him with proceedings for the return of the child under the Hague Convention in compliance with the requirements of Article 8 of the Convention. 112. In view of this finding, the Court considers it unnecessary to examine separately the substantive grounds behind the Constitutional Court ’ s judgment of 13 December 2011. For similar reasons, the Court finds it unnecessary to examine separately the remaining admissible complaint. 113. In sum, there has been a violation of Article 8 of the Convention. II. OTHER ALLEGED VIOLATIONS 114. Lastly, the applicant alleged a violation of Articles 1, 7, 11 and 12 of the Hague Convention. 115. As observed above, the Court has no jurisdiction ratione materiae to examine issues of compliance with the Hague Convention taken alone. It follows that the remainder of the application must be rejected in accordance with Article 35 § 4 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 116. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 117. By way of compensation in respect of non-pecuniary damage, the applicant claimed 150,000 euros (EUR) for either of the alleged violations of his rights under Articles 6 and 8 of the Convention. He also claimed EUR 15,000 in respect of each month until the child returned to Spain. Moreover, he claimed EUR 692.40 in respect of pecuniary damage, this amount consisting of the amounts he had been made to pay by way of contribution to the child ’ s maintenance and a fee for the child ’ s registration in a Spanish kindergarten (see paragraphs 9 and 55 above). 118. The Government contested the claim in respect of non-pecuniary damage as overstated, the claim for a monthly payment until the return of the child as not having any basis in the Court ’ s case-law, and the claim in respect of pecuniary damage as unfounded. 119. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. 120. In so far as the applicant may be understood as seeking a form of aggravated or punitive damages, the Court recalls that it has declined to make any such awards in the past (see, for example, Greens and M.T. v. the United Kingdom, nos. 60041/08 and 60054/08, § 97, ECHR 2010 (extracts), with further references). Having found no reasons for reaching a different conclusion in the present case, the Court rejects this claim. 121. However, it awards the applicant EUR 19,500 in respect of non ‑ pecuniary damage. B. Costs and expenses 122. The applicant also claimed EUR 6,079.94 for legal costs at the domestic level; EUR 7,080 for legal costs incurred before the Court; EUR 1,760.95 for translation costs; and EUR 1,921.53 for transportation and accommodation expenses incurred in connection with his travel to and from Slovakia and with his stay there. 123. The Government considered the claim concerning legal costs before the Court to be overstated. As for the costs and expenses incurred by the applicant at the domestic level, they requested that in the event of a finding of a violation of the applicant ’ s Convention rights compensation in that regard only be ordered in so far as those expenses had reasonably been incurred. 124. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 7 ,500 covering costs under all heads. C. Default interest 125. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 8 of the Convention. It observed that the applicant had had no standing in the proceedings before the Constitutional Court which lead to the quashing of a final and enforceable order previously issued by the ordinary courts for the return of his child to Spain. He had not been informed of the constitutional proceedings, let alone been able to participate in them, despite having a legitimate interest in the matter. In addition, the Court took into account that the Constitutional Court’s intervention in the case had come at a point when all other remedies had been exhausted, and that there was an indication that there might be a systemic problem due to the fact that those remedies were available in child return proceedings in Slovakia. |
348 | Rape and sexual abuse | II. RELEVANT LAW AND PRACTICE A. Relevant domestic law 31. Article 197 (1) of the Criminal Code regulating the criminal offence of rape, as in force at the time of the events, reads as follows: “(1) Sexual intercourse of any kind, with a person of a different sex or of the same sex, by constraint or by taking advantage of the victim ’ s lack of capacity to express [his/her] will, is punished with imprisonment from 3 to 10 years and the withdrawal of certain rights. ...” 32. Law no. 211/2004 on the protection of victims of crime, as in force at the relevant time, included an obligation on the judicial authorities to provide victims of crime with information concerning their rights. More specifically, the law provided in Article 4 an obligation on the judicial authorities to inform the victims about their procedural rights, the availability of psychological counselling or any other social assistance, and the opportunity to apply for legal aid. Psychological counselling (Article 8) and legal aid (Article 14) were to be provided free to victims of rape. The law received several amendments throughout the years but the above provisions remained in force and are still included in its most recent version of 5 May 2018. B. Relevant domestic practice 33. The Government submitted seventy-seven judgments in order to illustrate the practice of the domestic authorities in the matter of rape, as set forth below: 34. Six judgments (adopted between 2009 and 2012) concerned convictions for rape in cases where adult victims did not have any injuries on their body. In all these cases the domestic courts held, based on the evidence in the files, that the victims had been threatened with violence and therefore coerced to have sex with the perpetrators. In three of these cases the crimes were committed by two perpetrators together. 35. Nineteen judgments (adopted between 2010 and 2015) concerned convictions for rape in cases where evidence showed that adult or minor victims had been threatened with knives. 36. Thirty-six judgments (adopted between 2010 and 2015) concerned convictions for rape in cases where evidence (witness statements, injuries on the victims ’ bodies, perpetrators ’ confessions, police reports) was coupled with the specific circumstances of the cases (minor victims of a very young age, perpetrators being members of the family, victims kidnapped, intoxicated or in a coma). 37. The remaining sixteen judgments (adopted between 2009 and 2014) concern victims with mental disabilities (such as schizophrenia), some of them minor, some hospitalised and medicated with tranquillisers. In the majority of these cases the domestic courts held, on the basis of psychiatric assessments, that the victims ’ mental disabilities were so severe that they lacked any capacity to understand the content and consequences of their acts. In some of these cases the convictions are based on the perpetrators ’ confessions. 38. The Government also submitted sixty-six indictments (adopted between 2009 and 2015) charging with rape and sending for trial perpetrators in cases where victims had been threatened with violence but had no injuries on their bodies. The majority of these indictments concerned minor victims. Some of these indictments were adopted in the cases mentioned in paragraphs 34-37 above, others involved cases where victims had been threatened with knives or with being thrown in lakes or rivers. C. Relevant international law 39. A detailed description of the relevant international material concerning violence against women can be found in M.G.C. v. Romania (no. 61495/11, §§ 38-46, 15 March 2016), and Bălşan v. Romania (no. 49645/09, §§ 43-44, 23 May 2017). 40. The relevant international materials regarding abuse against people with disabilities can be found in I.C. v. Romania (no. 36934/08, §§ 41-44, 24 May 2016). 41. Excerpts from the relevant Council of Europe and European Union materials on the rights of the victims of crime are described in Y. v. Slovenia (no. 41107/10, §§ 71-72, 28 May 2015). 42. In a statement issued on 11 November 2018 on the occasion of her visit to Romania, the Council of Europe Commissioner for Human Rights mentioned that “Romania needs to strengthen its institutional framework to better protect the rights of persons with disabilities, and should step up the efforts to combat violence against women”. The Commissioner underscored the importance of Romania ’ s ratification of the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (Istanbul Convention) in 2016 and urged the authorities to reinforce capacity-building measures to ensure that women ’ s complaints against violence are effectively investigated and that victim protection is strengthened. THE LAW I. ALLEGED VIOLATION OF ARTICLES 3 AND 8 OF THE CONVENTION 43. The applicant complained under Articles 3, 6 § 1 and 13 of the Convention that the Romanian authorities had not investigated her allegations of rape effectively, and had breached their positive obligation to provide effective legal protection against sexual abuse. In addition, she complained that the authorities had failed to protect her as a victim of crime in that she did not benefit from legal assistance or counselling and the criminal proceedings exposed her to traumatic experiences which violated her personal integrity. 44. The Court reiterates that by virtue of the jura novit curia principle it is not bound by the legal grounds adduced by the applicant under the Convention and the Protocols thereto and has the power to decide on the characterisation to be given in law to the facts of a complaint by examining it under Articles or provisions of the Convention that are different from those relied upon by the applicant (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 126, ECHR 2018). Therefore, having regard to the nature and the substance of the applicant ’ s complaints, they fall to be examined under Articles 3 and 8 of the Convention (see M.G.C. v. Romania, no. 61495/11, § 48, 15 March 2016), which read as follows: Article 3 “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Article 8 “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Admissibility 45. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ submissions (a) The applicant 46. The applicant alleged that the authorities had not investigated her allegations of rape effectively. She contended that the statements taken during the investigation had been too brief, and had not clarified the facts. The authorities had failed to take into consideration her psychological state, which was supported by medical documents, and had failed to conduct a psychiatric assessment in order to assess her capacity to defend herself. They had also failed to test the credibility of the alleged perpetrator, notably the fact that he had a previous conviction for rape which had been totally overlooked during the investigation. 47. She stressed that the authorities had failed to inform her of her procedural rights and to provide her with free legal assistance and counselling, in breach of their obligations as provided by Law no. 211/2004 on the protection of victims of crime. Moreover, the applicant submitted that no weight had been attached to her particular vulnerability as a psychologically impaired woman victim of rape. As a result, she could not effectively participate in the investigation and was subjected to additional suffering. 48. The applicant also alleged that she had raised all the above complaints before the domestic courts; however, the Mureş County Court, in the judgment adopted on 11 February 2011, decided with final effect to upheld the prosecutor ’ s decision not to open criminal proceedings, without replying to any of her arguments. (b) The Government 49. The Government submitted that the investigation had been prompt, thorough and effective. They conceded that the documents in the file did not indicate that the applicant had been informed of her rights as provided by Law no. 112/2004. However, the applicant had failed to inform the police that she had oligophrenia. Nevertheless, the Government stressed that, during her hearing by the police, the applicant had been accompanied by her husband, who was fully capable of ensuring respect for her rights. Moreover, the applicant proved that she had been well aware of her rights since she had used all the available remedies provided by the law against the prosecutor ’ s decision not to open an investigation, and she had succeeded in applying for ex officio legal assistance before the courts. On this point, the Government also maintained that the failure of the investigative authorities to provide the applicant with an ex officio lawyer during the investigation had been remedied before the courts, where the applicant had in fact had had access to a lawyer. In any event, they submitted that the presence of a lawyer during the applicant ’ s questioning by the police would not have influenced the course of the investigation, as no evidence was found to support the applicant ’ s accusations. They concluded that the authorities ’ omission to inform the applicant of her rights under Law no. 211/2004 had not had any negative effect on her situation. 50. The Government further submitted that the applicant could have requested the courts to render the investigation acts void because of the authorities ’ failure to inform her of her rights provided by Law 211/2004. Such a decision could have been taken by the courts under the provisions of the Criminal Procedure Code if a breach of rights had been observed and that breach could not have been remedied otherwise. 51. As regards the applicant ’ s allegations that the investigation had subjected her to additional suffering, the Government maintained that there had been no direct interaction between the applicant and T.F.S.; all their encounters had been as limited as possible and had taken place only in the presence of police officers. Similarly, during the trial before the courts T.F.S. had not addressed the applicant directly but through the intermediary of the judge. In addition, the advice to the applicant to withdraw her complaint, advice allegedly given her by the police, may have been just information about the possible results of the criminal proceedings she was about to initiate. 52. Lastly, they contended that the domestic courts had thoroughly analysed the applicant ’ s arguments and no significant or considerable shortcomings in the investigation could be observed, by contrast with the case of M.C. v. Bulgaria (no. 39272/98, 4 December 2003). In addition, the applicant had had effective remedies at her disposal, as required by Article 13 of the Convention. Therefore, the system put in place by the Romanian State to deal with sexual violence was in accordance with the requirements set forth by Articles 3 and 8 of the Convention. 2. The Court ’ s assessment (a) General principles 53. The Court reiterates that the obligation of the High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken together with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to ill-treatment, including ill-treatment administered by private individuals. These measures should provide effective protection, in particular of children and other vulnerable persons, and include reasonable steps to prevent ill-treatment of which the authorities had or ought to have had knowledge. In the case of people in a vulnerable position, including people with disabilities, the Court held that the authorities must show particular vigilance and afford increased protection, in view of the fact that such individuals ’ capacity or willingness to pursue a complaint will often be impaired (see I.C. v. Romania, no. 36934/08, § 51, 24 May 2016, and the cases cited therein). 54. On that basis, the Court considers that States have a positive obligation inherent in Article 3 of the Convention to enact criminal-law provisions that effectively punish rape and to apply them in practice through effective investigation and prosecution (see M.C. v. Bulgaria, cited above, § 153). 55. Furthermore, positive obligations on the State are inherent in the right to effective respect for private life under Article 8; these obligations may involve the adoption of measures even in the sphere of the relations of individuals between themselves. While the choice of the means to secure compliance with Article 8 in the sphere of protection against acts of individuals is in principle within the State ’ s margin of appreciation, effective deterrence against serious acts such as rape, where fundamental values and essential aspects of private life are at stake, requires efficient criminal-law provisions. Children and other vulnerable individuals, in particular, are entitled to effective protection (see M.C. v. Bulgaria, cited above, § 150). The Court has not excluded the possibility that the State ’ s positive obligation under Article 8 to safeguard the individual ’ s physical integrity may extend to questions relating to the effectiveness of a criminal investigation (ibid., § 152). 56. In the light of the above, the Court is persuaded that any rigid approach to the prosecution of sexual offences, such as requiring proof of physical resistance in all circumstances, risks leaving certain types of rape unpunished and thus jeopardising the effective protection of the individual ’ s sexual autonomy. In accordance with contemporary standards and trends in that area, the member States ’ positive obligations under Articles 3 and 8 of the Convention must be seen as requiring the penalisation and effective prosecution of any non-consensual sexual act, including in the absence of physical resistance by the victim (ibid., § 166). (b) Application of the above-mentioned principles to the present case 57. The Court notes that the authorities in the current case were confronted with two conflicting versions of the events. The applicant alleged that she had been raped on the evening of 20 May 2008. However, the man involved in the incident claimed that she had consented to sexual intercourse that evening. Therefore, the authorities ’ central task in this case was to determine whether or not the sexual intercourse had been consensual. 58. In similar cases the Court has already held that the presence of two irreconcilable versions of the facts obviously called for a context-sensitive assessment of the credibility of the statements made and for verification of all the surrounding circumstances (see M.C. v. Bulgaria, cited above, § 177). That could have been done by questioning people known to the applicant and the perpetrator, such as friends, neighbours and others who could shed light on the trustworthiness of their statements, or by seeking an opinion from a specialist psychologist. In this context, the authorities could also verify whether any reasons existed for the victim to make false accusations against the alleged perpetrator (see I.C. v. Romania, cited above, § 54). However, the Court observes that none of the above was done at any stage of the investigation and trial in the current case. 59. The Court further observes that according to a medical document dated 30 May 2008 submitted to the prosecutor on 22 February 2009 (see paragraph 21 above) the applicant had been diagnosed with a slight intellectual disability. In this context, the nature of the sexual abuse against her was such that the existence of useful detection and reporting mechanisms was fundamental to the effective implementation of the relevant criminal laws and to the applicant ’ s access to appropriate remedies. Indeed, the Court has already expressed the view that failure to properly investigate or provide appropriate judicial response to complaints of sexual abuse against children or other vulnerable persons such as persons with intellectual disabilities creates a background of impunity which may be in breach of the State ’ s positive obligations under Article 3 of the Convention (see I.C. v. Romania, cited above, § 55). 60. In such circumstances, the Court considers that the applicant ’ s intellectual disability, confirmed by medical documents, placed her in a heightened state of vulnerability and required both the investigating authorities and the domestic courts to show increased diligence in analysing her statements. Moreover, particular attention should have been also focused on analysing the validity of the applicant ’ s consent to the sexual acts in the light of her intellectual capacity ( ibid., § 56). However, it appears that none of the personal circumstances of the applicant, such as her level of mental and physical development or the circumstances in which the incident took place – in the evening, in the proximity of a cemetery – were considered by the prosecutors or the judges deciding on this case. 61. The conclusions drawn by the prosecutor and the domestic courts appear to have been based only on the fact that the applicant had not asked for help, taken together with the fact that the applicant ’ s body showed no signs of violence specific to rape (see paragraphs 20, 22 and 29 above). 62. On this point, the Court observes that Article 197 of the Romanian Criminal Code does not mention any requirement for physical resistance by the victim (see paragraph 31 above). What is decisive, therefore, is the meaning given by the investigating authorities and the courts to words such as “constraint” and “the victim ’ s lack of capacity to express his/her will”. The Court notes from the examples of case-law submitted by the Government in the present case that the majority of convictions for rape were adopted in cases involving violence, where the victims were clearly in situations in which they could not express their will, where the perpetrators confessed, or where direct evidence was available from witnesses (see paragraphs 35 - 38 above). In very few of the cases submitted as examples ‒ six out of seventy-seven, to be precise ‒ did the domestic courts adopt convictions for rape in the absence of any injuries on the victim ’ s body and in the absence of other direct evidence (see paragraph 34 above). It cannot therefore be concluded that settled and consistent practice had been developed by the national courts in cases concerning rape where little or no physical injuries had been established. 63. In view of the above elements, the Court considers that the authorities in the current case also put undue emphasis on the absence of proof of resistance from the applicant, and they failed to take a context ‑ sensitive approach (see M.C. v. Bulgaria, cited above, § 182). The authorities ’ conduct was aggravated by the fact that no psychological or psychiatric assessment had ever been carried out for the purposes of obtaining a specialist analysis of the applicant ’ s reactions from the point of view of her mental capacity, although this was requested by the applicant during the investigation (see paragraph 21 above) and also ordered by the Târnăveni District Court in their judgment of 6 May 2009 (see paragraph 25 above). 64. As regards the applicant ’ s allegations that she was subjected to additional suffering as a result of the authorities ’ failure to inform her of her procedural rights and to provide her with free legal assistance and counselling, in breach of Law no. 211/2004, the Court notes that the Government has not disproved those allegations, but merely submitted that the omissions complained about did not undermine the effectiveness of the investigation. 65. In this connection, the Court notes that the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence requires the Contracting Parties to take the necessary legislative and other measures to protect the rights and interests of victims. Such measures involve, inter alia, protection from intimidation, retaliation and victimisation, as well as informing them of the rights and the services at their disposal and providing them with appropriate support services so that their rights and interests are duly presented and taken into account (see paragraph 41 above). In the same context, in a recent statement the Council of Europe Commissioner for Human Rights urged the Romanian authorities to strengthen the protection of victims (see paragraph 42 above). 66. Against this background, the Court observes that in the current case there is no evidence that the provisions of the domestic law on the rights of victims were observed as regards the applicant. Moreover, her complaints in this respect (see paragraphs 21, 23 and 27 above) were overlooked by the domestic courts (see paragraph 29 above). The Court also notes that the applicant on several occasions alerted the authorities, to no avail, that she was afraid of retaliation by the alleged perpetrator (see paragraphs 17 and 21 above). An approach such as the one taken by the authorities in the current case deprived the national legal framework on violence against women and protection of victims of its purpose, and was inconsistent with international standards on these issues. 67. In view of the above, without expressing an opinion on the guilt of T.F.S., the Court finds that the failure to adequately respond to the allegations of rape in this case and to adequately respect the applicant ’ s rights as a victim of violence raises doubts as to the effectiveness of the system put in place by the State in accordance with its international obligations, and leaves the criminal proceedings in the case devoid of meaning. 68. The foregoing considerations are sufficient to enable the Court to conclude that the authorities failed to meet their positive obligations to apply effectively a criminal-law system punishing all forms of rape and sexual abuse and to ensure adequate protection of the applicant ’ s physical integrity. There has accordingly been a violation of Articles 3 and 8 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 69. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 70. The applicant claimed 12,000 euros (EUR) in respect of non ‑ pecuniary damage. 71. The Government submitted that in similar cases examined by the Court (see, for example, M.C. v. Bulgaria, cited above) the Court has awarded the applicants lower amounts than the one requested by the applicant in the current case. 72. The Court considers that the applicant must have suffered distress and psychological trauma because of the authorities ’ failure to adequately respond to her allegations of rape and to adequately respect her rights as a victim of violence. Making an assessment on an equitable basis, the Court awards the applicant the entire amount claimed in respect of non-pecuniary damage. B. Costs and expenses 73. The applicant also claimed EUR 1,400 for the costs and expenses incurred before the Court. In support of this request the applicant submitted an invoice for the amount of 6,300 Romanian lei (ROL, approximately EUR 1,400) representing legal assistance services provided by Ms C. Schwab, the lawyer who represented the applicant before the Court until 15 May 2018. 74. The Government requested the Court to award an amount proportionate to the activity conducted by the lawyer. 75. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 1,400 for costs and expenses for the proceedings before the Court. C. Default interest 76. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 3 (prohibition of inhuman or degrading treatment) and of Article 8 (right to respect for private life) of the Convention in the applicant’s case. It found in particular that the Romanian authorities had failed to carry out a proper investigation and had overly emphasised the fact that the applicant had not resisted her alleged attacker. In addition, owing to her slight intellectual incapacity, her case had required a context-sensitive investigation, but there had not been one. The Court also considered that the authorities’ approach had undermined the applicant’s rights as a victim of violence, had deprived domestic law of its purpose of effectively punishing and prosecuting sexual offences, and had raised doubts about the system put in place by the Romanian State under its international obligations. |
174 | Deprivation of liberty and challenging the lawfulness of detention | II. RELEVANT DOMESTIC LAW AND PRACTICE A. The Immigration Act and the Refugees Act 29. The relevant articles of the above - mentioned Acts can be found in Aden Ahmed v. Malta (no. 55352/12, §§ 31-35, 23 July 2013). B. Government Policy 30. According to the Irregular Immigrants, Refugees and Integration Policy Document, issued by the Ministry for Justice and Home Affairs and the Ministry for the Family and Social Solidarity, in 2005: “ Irregular immigrants who, by virtue of their age and/or physical condition, are considered to be vulnerable are exempt from detention and are accommodated in alternative centres”. 31. The document contains an inclusive list of those categories of migrants considered vulnerable, which includes: “unaccompanied minors, persons with disability, families and pregnant women”. With specific reference to unaccompanied minors and age assessment, the policy document states that: “Unaccompanied children and minors will be placed under state custody in terms of the Children and Young Persons (Care Order) Act (Chapter 285). This ensures that an unaccompanied minor is given the same treatment as a Maltese minor. ... The detention of minors should be no longer than what is absolutely necessary to determine their identification and health status. Interviews are to be carried in a ‘ child friendly ’ manner. Unfortunately there will be cases where individuals make false claims about their age in order to benefit from the terms and conditions of a Care Order. In order to ensure, as far as possible, that: (a) Care Orders are only issued in respect of true minors; (b) provisions for minors are not abused, and (c) actual minors are not deprived of the accommodation and services to which they are entitled by virtue of their age and the degree of vulnerability associated with it, Ministry for Justice and Home Affairs in consultation with the Ministry for the Family and Social Solidarity shall, in those cases where there is good reason to suspect the veracity of the minority age claimed by the immigrant, require the individual concerned to undertake an age verification test as soon as possible after arrival”. C. The Age- Assessment Procedure 32. In order to give effect to this policy, a procedure known as the Age ‑ Assessment Procedure was developed and implemented first by the Refugee Service Area within Aġenzija Appoġġ ( the National Agency for children, families and the community) and later by AWAS (formerly OIWAS), with a view to assessing claims to minor age. Although AWAS is not formally charged with the responsibility for this procedure by the law which constitutes it (see below) in practice the said agency has full responsibility for this procedure. 33. In practice, from the information available, it appears that the Age ‑ Assessment Procedure consisted of a number of different phases. Individuals were referred to the Agency for the Welfare of Asylum Seekers (AWAS) by the Immigration Police (where they declare to be minors on arrival) or the Refugee Commissioner (where they declare to be minors in their PQ). Following referral, an initial interview is conducted by one member of AWAS staff. Where this interview is inconclusive, a second interview is conducted by a panel of three persons known as the Age ‑ Assessment Team (AAT). 34. Where the panel is convinced that the individual concerned is not a minor, the minority age claim is rejected. Where a doubt remains, s/he is referred for a Further Age Verification (FAV) test, which essentially consists of an X-ray of the bones of the wrist. Although the AAT is not bound by the results of the test, in practice, it would appear that in most cases where it is resorted to the result will determine the outcome of the assessment. 35. If the individual concerned is found to be a minor, a care order is issued, the individual is released from detention and placed in an appropriate non-custodial residential facility, and a legal guardian is appointed to represent the minor. Once a guardian is appointed the asylum interview is carried out, and during the said interview the minor is assisted by a legal guardian. If the individual ’ s claim to minor age is rejected, AWAS informs the Refugee Commissioner so that his office can proceed with the refugee status determination procedure. 36. In so far as relevant, Regulation 6 of the Agency for the Welfare of Asylum Seekers Regulation, Subsidiary Legislation 217.11, reads as follows: “(1) The function of the Agency shall be the implementation of national legislation and policy concerning the welfare of refugees, persons enjoying international protection and asylum seekers. (2) In the performance of its functions, the Agency shall: (a) oversee the daily management of accommodation facilities either directly or through subcontracting agreements; (b) provide particular services to categories of persons identified as vulnerable according to current policies; (c) provide information programmes to its clients in the areas of employment, housing, education, health and welfare services offered under national schemes; (d) act as facilitator with all public entities responsible for providing services to ensure that national obligations to refugees and asylum seekers are accessible; (e) promote the Government ’ s policy and schemes regarding resettlement and assisted voluntary returns; (f) maintain data and draw up reports that are considered relevant for its own function and to provide statistics to appropriate policy-making bodies; (g) advice the Minister on new developments in its field of operation and propose policy or legislation required to improve the service given and fulfil any legal obligations in respect of its service users; (h) encourage networking with local voluntary organisations so as to increase the service standards as well as academic research; (i) work with other public stakeholders and, where possible, offer its services to asylum seekers accommodated in other reception centres not under its direct responsibility; and (j) implement such other duties as may be assigned to it by the Minister or his representative.” 37. Regulation 15 of the Procedural Standards in Examining Applications for Refugee Status Regulations Subsidiary Legislation 420.07 ‑ Legal Notice 243 of 2008, as applicable at the time of the present case (prior to amendments in 2014) laid down some basic procedural safeguards applicable when minors are interviewed, including the provision of information about the asylum procedure, assistance with preparation for the interview and presence of the representative during the interview. Its paragraph (2) dealt with the use of medical procedures to determine age within the context of an application for asylum. In so far as relevant it read as follows: “(1) In relation to an unaccompanied minor falling within the provisions of article 13(3) of the Act, as soon as possible, and not later than thirty days from the issue of the care order under that article: (a) it shall be ensured that the appointed representative of the unaccompanied minor is given the opportunity to inform the unaccompanied minor about the meaning and possible consequences of the personal interview and, where appropriate, how to prepare himself for the personal interview. The representative shall be present at the interview and may ask questions or make comments within the framework set by the person who conducts the interview; (b) where an unaccompanied minor has a personal interview on his application for asylum, that interview is to be conducted and the decision prepared by a person who has the necessary knowledge of the special needs of minors. (2) Medical examinations to determine the age of unaccompanied minors within the framework of any possible application for asylum may be carried out. Provided that: (a) unaccompanied minors are informed prior to the examination of their application for asylum, and in a language which they may reasonably be supposed to understand, of the possibility that their age may be determined by medical examination. This shall include information on the method of examination and the possible consequences of the result of the medical examination for the examination of the application for asylum, as well as the consequences of refusal on the part of the unaccompanied minor to undergo the medical examination which may include the rejection of his claim that he is a minor; (b) unaccompanied minors and their representatives consent to carry out the determination of the age of the minors concerned; (c) the decision to reject an application from an unaccompanied minor who refused to undergo this medical examination shall not be based solely on that refusal: Provided that an unaccompanied minor who has refused to undergo such a medical examination shall not prevent the determining authority from taking a decision on the application for asylum and that the best interests of the minor shall be a primary consideration in any such decision.” 38. Article 15 of the Reception of Asylum Seekers (Minimum Standards) Regulations, Subsidiary Legislation 420.06 – Legal Notice 320 of 2005, states that: “an unaccompanied minor aged sixteen years or over may be placed in accommodation centres for adult asylum seekers”. D. Other Relevant Subsidiary Legislation 39. Part IV of Subsidiary Legislation 217.12, Common Standards and Procedures for Returning Illegally Staying Third-Country Nationals Regulations, Legal Notice 81 of 2011 ( Transposing Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in member States for returning illegally staying third-country nationals, aka the Return Directive) in so far as relevant, is set out in Aden Ahmed (cited above, §§ 31-35). III. RELEVANT INTERNATIONAL TEXTS 40. Under European Union law, in particular Article 24 of The Reception Conditions Directive provides guidance on the type of accommodation to be provided to unaccompanied minors, which must be with adult relatives, with a foster family, in reception centres with special provisions for minors, or in other suitable accommodation. Detention of unaccompanied minors is not fully prohibited but is only allowed in exceptional circumstances and never in prison accommodation (Article 11 (3) of the Recast Directive). The directive considers that a ‘ minor ’ means a third-country national or stateless person below the age of 18 years; it also notes that applicants aged sixteen and over, but under the age of eighteen and therefore still minors, may be placed in accommodation centres for adult asylum seekers, but only if it is in the best interests of the child [1]. 41. In so far as relevant the United Nations Convention on the Rights of the Child, of 20 November 1989, ratified by Malta in 1990, reads as follows: Article 1 “For the purposes of the present Convention, a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier.” Article 2 “1. States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child ’ s or his or her parent ’ s or legal guardian ’ s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status. 2. States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child ’ s parents, legal guardians, or family members.” Article 3 “1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. 2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures. 3. States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.” Article 37 “States Parties shall ensure that: (a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age; (b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time; (c) Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child ’ s best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances; (d) Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action.” 42. In Recommendation Rec(2003)5 of the Committee of Ministers of the Council of Europe, to member States, on measures of detention of asylum seekers, adopted by the Committee of Ministers on 16 April 2003 at the 837th meeting of the Ministers ’ Deputies, the Committee of Ministers recommended, in particular in respect of minors, that: “ 20. As a rule, minors should not be detained unless as a measure of last resort and for the shortest possible time. 21. Minors should not be separated from their parents against their will, nor from other adults responsible for them whether by law or custom. 22. If minors are detained, they must not be held under prison-like conditions. Every effort must be made to release them from detention as quickly as possible and place them in other accommodation. If this proves impossible, special arrangements must be made which are suitable for children and their families. 23. For unaccompanied minor asylum seekers, alternative and non-custodial care arrangements, such as residential homes or foster placements, should be arranged and, where provided for by national legislation, legal guardians should be appointed, within the shortest possible time.” 43. In Recommendation 1985 (2011) of the Parliamentary Assembly of the Council of Europe, of 7 October 2011, entitled “Undocumented migrant children in an irregular situation: a real cause for concern”, the Parliamentary assembly considered that undocumented migrant children are triply vulnerable: as migrants, as persons in an undocumented situation and as children. They recommended that member States refrain from detaining undocumented migrant children, and protect their liberty by abiding by the following principles: “9.4.1. a child should, in principle, never be detained. Where there is any consideration to detain a child, the best interest of the child should always come first; 9.4.2. in exceptional cases where detention is necessary, it should be provided for by law, with all relevant legal protection and effective judicial review remedies, and only after alternatives to detention have been considered; 9.4.3. if detained, the period must be for the shortest possible period of time and the facilities must be suited to the age of the child; relevant activities and educational support must also be available; 9.4.4. if detention does take place, it must be in separate facilities from those for adults, or in facilities meant to accommodate children with their parents or other family members, and the child should not be separated from a parent, except in exceptional circumstances; 9.4.5. unaccompanied children should, however, never be detained; 9.4.6. no child should be deprived of his or her liberty solely because of his or her migration status, and never as a punitive measure; 9.4.7. where a doubt exists as to the age of the child, the benefit of the doubt should be given to that child;” 44. Prior to the above recommendation, in Resolution 1707 (2010) 28 January 2010, the Parliamentary Assembly, called on member states of the Council of Europe in which asylum seekers and irregular migrants are detained to comply fully with their obligations under international human rights and refugee law, and encouraged them to abide by a number of guiding principles, inter alia, that vulnerable people should not, as a rule, be placed in detention and specifically that unaccompanied minors should never be detained. IV. RELEVANT MATERIALS 45. The Report by Thomas Hammarberg, Commissioner for Human Rights of the Council of Europe following his visit to Malta from 23 to 25 March 2011, 9 June 2011, paragraphs 19-20, reads as follows; “19. At the end of their detention, migrants, including refugees, beneficiaries of subsidiary protection, asylum seekers and persons whose asylum claims have been rejected, are accommodated in open centres around Malta. Conditions prevailing in these centres vary greatly, with adequate arrangements reported in the smaller centres that cater for some vulnerable groups, such as families with children or unaccompanied minors, and far more difficult conditions in the bigger centres. As mentioned above, when the Commissioner ’ s visit took place the number of irregular arrivals had been very low for over 18 months and the 2011 arrivals from Libya had not yet started. As a result, the vast majority of migrants had moved out of the detention centres and were living in open centres, with the respective populations numbering at 49 and 2 231 respectively. The Commissioner visited the detention centre in Safi, and three open centres - the Hal-Far tent village, the Hangar Open Centre in Hal-Far and Marsa. 20. At the time of the visit the material conditions in the Safi detention centre, where all 49 of the migrant detainees were kept, appeared to be considerably better than those in open centres. Although a number of issues remained to be addressed, including those regarding the detainees ’ access to a diversified diet and water other than from the tap, the premises visited, including the dormitories, toilets and showers had been recently refurbished. The only female detainee of the centre was accommodated in a separate facility. The Commissioner wishes to note however, that in accordance with the mandatory detention policy referred to above, most of the persons (approximately 1 100) who have arrived from Libya since his visit have been placed in detention centres. This is naturally bound to have a significant impact on the adequacy of the conditions in these centres.” 46. The Report to the Maltese Government on the visit to Malta carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( CPT) from 19 to 26 May 2008, 17 February 2011), in so far as relevant reads as follows: “52. In accordance with Maltese policy on administrative detention of foreigners under aliens ’ legislation, all foreigners arriving illegally in Malta are still detained for prolonged periods, in the case of asylum seekers until such time as their request for refugee status is determined (normally 12 months) and for irregular immigrants for up to a maximum of 18 months. In practice, however, some may spend even longer periods in detention. The only declared exceptions to this general rule concern persons deemed to be vulnerable because of their age and/or physical condition, unaccompanied minors and pregnant women ... 53. The situation found in the detention centres visited by the delegation had not substantially improved since the CPT ’ s previous visit in 2005. Indeed, many of the problems identified in the report on that visit still remain unresolved. In several parts of the detention centres, the combined effects of prolonged periods of detention in poor, if not very poor, material conditions, with a total absence of purposeful activities, not to mention other factors, could well be considered to amount to inhuman and degrading treatment. material conditions ... 60. At Safi Barracks Detention Centre, which at the time of the visit accommodated a total of 507 immigration detainees, living conditions for detainees had slightly improved in comparison to the situation observed by the CPT in 2005. At Warehouse No. 1, living conditions were less cramped than when last visited by the CPT, and the toilet facilities were new and clean. That said, the Committee has strong reservations as regards the use of converted warehouses to accommodate detainees. This should only be seen as a temporary - and short term - solution. B Block has been refurbished since the CPT ’ s last visit. The sanitary facilities have been renovated and a large exercise area is at the disposal of the immigration detainees. However, conditions were still difficult in certain rooms, where immigration detainees were sleeping on mattresses on the floor. Surprisingly, poor conditions of detention were observed in the new C Block. Living conditions were cramped, access to natural light was insufficient and ventilation very poor. Further, access to running water was limited, as well as access to hot water, the latter being unavailable for prolonged periods. In addition, the internal regulation in force at Safi Barracks provided for the compulsory closing of the doors in B and C Blocks every afternoon at 5 p.m., thereby preventing access to the outdoor yard. This exacerbated significantly the already far from ideal living conditions in these blocks.” 47. The Report to the Maltese Government on the visit to Malta carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 26 to 30 September 2011, published on 4 July 2013, in so far as relevant in connection with Safi barracks, reads as follows: “44. At the time of the visit, Safi Detention Centre was accommodating a total of 506 male adult detainees (236 in Warehouse No. 1, 113 in Warehouse No. 2 and 124 in Block B). In keeping with the Government ’ s Detention Policy, no unaccompanied minors were held in either of the two detention centres visited. Upon issuance of a care order by the Minister of Social Policy, unaccompanied minors were always transferred to a juvenile institution. Single women were always accommodated separately from male detainees. ... 48. As was the case in 2008, a number of detainees complained about disrespectful behaviour and racist remarks by detention officers (in particular in the Warehouses at Safi Detention Centre). The CPT reiterates its recommendation that the Maltese authorities remind all members of staff working in detention centres for foreigners that such behaviour is not acceptable and will be punished accordingly. ... 55. At both [ Lyster and ] Safi Detention Centres, material conditions have improved since the 2008 visit. ... At Safi Barracks, additional renovation work had been carried out in Block B. It is noteworthy that all foreign nationals received personal hygiene products on a regular basis and were also supplied with clothes and footwear. However, material conditions of detention were still appalling in the two Warehouses at Safi Barracks. In particular, at Warehouse No. 1, foreign nationals were being held in extremely crowded conditions and the sanitary facilities consisting of seven mobile toilets (without a flush) and seven mobile shower booths, located in the outdoor exercise yard, were in a deplorable state. In fact, the Warehouses are not suitable for accommodating persons for prolonged periods, but should only be used in the event of an emergency. The CPT recommends that the Maltese authorities take the necessary measures to ensure that all immigration detainees currently being held in the two Warehouses at Safi Barracks are transferred as soon as possible to Ta ’ Kandja Detention Centre and that both Warehouses are in future only used for short ‑ term detention in emergency situations. ... 57. At Safi Detention Centre, conditions of detention in the two warehouses were further exacerbated by the total lack of any organised activities. The situation was slightly better, but far from satisfactory in Block B, where detainees could play football in the exercise yard (surrounded by high walls), which was accessible from 8.30 a.m. to 7 p.m. The CPT calls upon the Maltese authorities to introduce a regime providing purposeful activities to foreign nationals held at Safi [ and Ta ’ Kandja Detention ] Centres. ... 58. Medical and nursing services in detention centres for foreigners were provided by two separate privately-run companies. There was a pool of doctors ensuring the presence of one doctor from Mondays to Fridays (including public holidays), for five hours per day at Safi [and four hours per day at Lyster Barracks]. Further, a nurse was present in each detention centre from Mondays to Fridays from 8 a.m. to 3 p.m. In addition, at Safi Barracks, a nurse from the local health - care service came to the establishment to administer medication requiring supervision in the evenings and at weekends. The CPT must stress that, given the size of the inmate populations, the current arrangements for the provision of health care were clearly insufficient to ensure that detainees ’ health problems were dealt with in a timely and effective manner. The delegation was overwhelmed by complaints from detainees about delays in seeing a doctor (up to several days) and, subsequently, in receiving prescribed medicines (up to one week). In practice, only a limited number of requests (usually five) per detention block were forwarded by detention officers to the nurse on duty on a first-come first ‑ served basis. This was described by many detainees as source of constant tension among themselves. ... In the two Warehouses at Safi Barracks, the delegation observed that a significant number of detainees were lying in bed all day in total apathy. Given that nurses never entered the detention areas, the likelihood was great that detainees in need of urgent psychological support remained undetected for a long time. Regrettably, both centres were still not being visited by a psychologist and a psychiatrist. Another major shortcoming was the lack of systematic medical screening of detainees upon admission to a detention centre. The delegation was informed by health-care staff that, on arrival at the port, all foreign nationals had undergone a chest X-ray, but no further screening was performed at the detention centres. In this regard, the CPT wishes to recall that systematic medical screening is not only an essential means of protecting detainees and staff alike (in particular, with regard to transmissible diseases) but also an important safeguard against ill-treatment. ... 60. As regards contact with the outside world, the CPT welcomes the fact that, in both detention centres visited, foreign nationals could receive telephone calls from the outside. They were also were provided with telephone cards free of charge on a regular basis, although these were limited to a total of 5€ every two months. ” In their report the CPT noted that, at Safi Detention Centre, attempts were made by the management to provide misleading information and to hide from the delegation a significant number of complaints which had been lodged by foreign nationals. 48. In a report by the International Commission of Jurists (“ICJ”) entitled “Not here to stay”, Report of the International Commission of Jurists on its visit to Malta on 26 ‑ 30 September 2011, May 2012, which assessed migration and asylum practice in Malta (at the time of the Libyan crisis), the ICJ expressed concern that the Safi Barracks detention centres, including B-Block, were located on two military bases – a situation at odds with international law and standards. The ICJ report concluded that the accumulation of poor conditions of detention, brought the situation in the Safi Barracks detention centre beyond the threshold of degrading treatment, in violation of Malta ’ s international human rights obligations under Article 3 of the Convention. 49. They considered that a lesser, though still worrisome, situation of overcrowding existed in B-Block of the Safi Barracks at the time of the ICJ visit. While this centre was provided with open cells, these were overcrowded with bunk beds, and the only privacy was that which had been tentatively achieved through hanging blankets from the top of the bunks. In their view in B-Block, the kitchen and the bathroom appeared rather dirty. 50. They noted, inter alia, that in the Warehouse the number of toilets and showers appeared to the delegation to be insufficient in comparison to the number of people detained. The migrants detained in Warehouse One had no facilities for cooking, mainly due to the structure of the detention centre, which did not allow for a kitchen, big enough for all detainees, to be installed. 51. Other relevant extracts from their report read as follows: “There is a lack of leisure facilities in the detention centres visited. In Warehouse One, the only entertainment was provided by a single television in the main common room and by the recreation-yard. In B-Block, there was also a recreation ‑ yard, although of rather limited dimensions, and the detainees expressly complained of the lack of means of recreation, claiming that they had only one ball at their disposal. No books seemed to be present in the detention facilities.” ... “The detainees in Warehouse One also complained about the clothing provided to them. According to them, clothes were given to them through charity and some of them were wearing very worn out t-shirts.” ... “ [the ICJ] considers that in Safi Barracks, the accumulation of poor conditions of detention, including sanitary conditions, together with the apparent existence of cases of psychological instability, with the lack of leisure facilities, the overcrowded conditions and the mandatory length of 18 months of detention brought, at the time of the visit, the situation in the detention centre beyond the threshold of degrading treatment, and therefore in violation of Article 3 ECHR, Articles 1 and 4 EU Charter, Article 7ICCPR and Article 16 CAT.” 52. Bridging Borders, a JRS Malta report on the implementation of a project to provide shelter and psychosocial support to vulnerable asylum seekers between June 2011 and June 2012, highlights the fact that not all medication prescribed by medical personnel in detention is provided free by the Government health service. In fact the said report notes that during the lifetime of the project the organisation purchased medication for 130 detainees. 53. Care in Captivity, a more recent JRS Malta report on the provision of care for detained asylum seekers experiencing mental health problems (research period December 2013 to June 2014), documented several obstacles to quality health care including: lack of availability of interpreters; lack of attendance for follow-up appointments following discharge to detention (in seven out of seventy-four cases); and failure to dispense prescribed psychotropic medication in some cases. It held that: “In this regard, the current system where, after discharge from the ASU ward, the responsibility for continuity of care, in terms of attendance of hospital appointments and dispensation of medication, falls under detention health care providers and custodial staff appears not to be operating effectively.” 54. In so far as relevant, extracts from a report by Human Rights Watch in 2012 called “Boat-ride to Detention”, reads as follows: “ Children lack adequate information about the age determination process (including whether documents are accepted and whether there is an appeal). Some migrants who request an age determination procedure are seemingly ignored: interviewees reported telling authorities they were minors but never receiving age determination. Other children never request an age determination because they lack information on the procedure.” “The government should do more to provide children with reliable information about the age determination procedure. Children receive no guidance on the content of the procedure, whether documents will be useful, or whether they can appeal. Malta has taken considerable steps in providing information to migrants about the process for asylum, including by conducting information sessions to every incoming migrant. It could easily do the same for the age determination process.” 55. A 2014 report issued by Aditus, a local NGO entitled “Unaccompanied Minor Asylum-Seekers in Malta: a technical Report on Ages Assessment and Guardianship Procedures ”, reads as follows: “The procedural information provided to persons undergoing age assessment is extremely limited which further excludes the applicant from active participation in the process.” “Under the old procedure [2012] persons were not adequately informed of the possibility of appeal... persons were also typically not informed of the reasons for a negative decision” “Most experts agree that age assessment is not a determination of chronological age but rather an educated guess. There are risks that due to the inaccuracy of age assessment techniques, persons claiming to be minors may have their age mis ‑ assessed” 56. The relevant extracts of General Comment no.6 (2005) of the Committee on the Rights of the Child, entitled “ Treatment of unaccompanied and separated children outside their country of origin” read as follows : “ 61. In application of article 37 of the Convention and the principle of the best interests of the child, unaccompanied or separated children should not, as a general rule, be detained. Detention cannot be justified solely on the basis of the child being unaccompanied or separated, or on their migratory or residence status, or lack thereof. Where detention is exceptionally justified for other reasons, it shall be conducted in accordance with article 37(b) of the Convention that requires detention to conform to the law of the relevant country and only to be used as a measure of last resort and for the shortest appropriate period of time. In consequence, all efforts, including acceleration of relevant processes, should be made to allow for the immediate release of unaccompanied or separated children from detention and their placement in other form of appropriate accommodation. ... 63. In the exceptional case of detention, conditions of detention must be governed by the best interests of the child and pay full respect to article 37(a) and (c) of the Convention and other international obligations. Special arrangements must be made for living quarters that are suitable for children and that separate them from adults, unless it is considered in the child ’ s best interests not to do so. Indeed, the underlying approach to such a program should be “care” and not “detention”. Facilities should not be located in isolated areas where culturally-appropriate community resources and access to legal aid are unavailable. Children should have the opportunity to make regular contact and receive visits from friends, relatives, religious, social and legal counsel and their guardian. They should also be provided with the opportunity to receive all basic necessities as well as appropriate medical treatment and psychological counselling where necessary. During their period in detention, children have the right to education which ought, ideally, to take place outside the detention premises in order to facilitate the continuance of their education upon release. They also have the right to recreation and play as provided for in article 31 of the Convention. In order to effectively secure the rights provided by article 37(d) of the Convention, unaccompanied or separated children deprived of their liberty shall be provided with prompt and free access to legal and other appropriate assistance, including the assignment of a legal representative.” 57. In their report “20 years of combatting torture” 19th General Report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) 1 August 2008 - 31 July 2009, the CPT remarked as follows: “97. The CPT considers that every effort should be made to avoid resorting to the deprivation of liberty of an irregular migrant who is a minor. Following the principle of the “best interests of the child”, as formulated in Article 3 of the United Nations Convention on the Rights of the Child, detention of children, including unaccompanied and separated children, is rarely justified and, in the Committee ’ s view, can certainly not be motivated solely by the absence of residence status. When, exceptionally, a child is detained, the deprivation of liberty should be for the shortest possible period of time; all efforts should be made to allow the immediate release of unaccompanied or separated children from a detention facility and their placement in more appropriate care. Further, owing to the vulnerable nature of a child, additional safeguards should apply whenever a child is detained, particularly in those cases where the children are separated from their parents or other carers, or are unaccompanied, without parents, carers or relatives. 98. As soon as possible after the presence of a child becomes known to the authorities, a professionally qualified person should conduct an initial interview, in a language the child understands. An assessment should be made of the child ’ s particular vulnerabilities, including from the standpoints of age, health, psychosocial factors and other protection needs, including those deriving from violence, trafficking or trauma. Unaccompanied or separated children deprived of their liberty should be provided with prompt and free access to legal and other appropriate assistance, including the assignment of a guardian or legal representative. Review mechanisms should also be introduced to monitor the ongoing quality of the guardianship. 20 years of combating torture: CPT General Report 2008-20 99. Steps should be taken to ensure a regular presence of, and individual contact with, a social worker and a psychologist in establishments holding children in detention. Mixed-gender staffing is another safeguard against ill-treatment; the presence of both male and female staff can have a beneficial effect in terms of the custodial ethos and foster a degree of normality in a place of detention. Children deprived of their liberty should also be offered a range of constructive activities (with particular emphasis on enabling a child to continue his or her education).” THE LAW I. JOINDER OF THE APPLICATIONS 58. In accordance with Rule 42 § 1 of the Rules of Court, the Court decides to join the applications, given their similar factual and legal background. II. PRELIMINARY ISSUES Article 37 § 1 of the Convention 59. Article 37 § 1 of the Convention allows the Court to strike an application out of its list of cases and provides as follows: “1. The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that (a) the applicant does not intend to pursue his application; or (b) the matter has been resolved; or (c) for any other reason established by the Court, it is no longer justified to continue the examination of the application. However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.” 60. In their first round of observations the Government submitted that it was not clear whether the first applicant intended to pursue his application, given the fact that he had absconded and had not kept the Court informed of his whereabouts, or of the outcome of his judicial proceedings in Germany. In their view, this behaviour was clear evidence that he was no longer interested in pursuing the application, and thus the Court should strike out his application. In their second round of observations, following the declaration produced by the first applicant ’ s legal representative, the Government highlighted that the signature on the declaration did not correspond to that on the application form; in consequence it could not be taken as a valid expression of interest to continue pursuing the application. 61. The first applicant ’ s legal representatives, who submitted that they were still in touch with the first applicant, relied on the declaration made by him (in February 2015), in which he stated that he was in Germany and that he was still interested in pursuing his case before the Court, through his legal representatives who remained authorised to so do. In their further submissions they noted that they were regularly in contact - by telephone and with an interpreter - with the first applicant throughout the proceedings before this Court. They further explained that a photograph of the declaration signed by the first applicant (in February 2015) had been sent through a free instant messaging service for mobile telephones. They submitted that following the Government ’ s contestation (August 2015) the first applicant ’ s legal representatives again contacted the first applicant and his lawyer in Germany in order to obtain a further declaration. However, the first applicant informed them that he was unable to make the trip to his lawyer ’ s office in Frankfurt to have the declaration and signature authenticated, as he had no money for the journey. The first applicant ’ s legal representatives also submitted a signed declaration, dated 14 September 2015, by Ms Lena Ronte, an advocate practising in Germany, currently representing the first applicant in the proceedings in Germany. In the mentioned declaration she confirmed that the first applicant was residing in a reception centre in Schonbach, Germany, awaiting the outcome of his asylum proceedings. She confirmed that the first applicant ’ s representatives before this Court had contacted her to obtain a fresh declaration by him but that she had been unable to meet him, although she had spoken with him by telephone. According to her declaration, the first applicant told her that he was still interested in pursuing the case before the Court and confirmed that he was represented by Dr Michael Camilleri and Dr Katrine Camilleri, as stated in the authority form he signed on 16 April 2013. 62. The Court notes that the first applicant ’ s legal representatives have not rebutted the Government ’ s challenge concerning the difference in the first applicant ’ s signatures in the application and the declaration. Nevertheless, in the Court ’ s view, while the signatures on the two documents are certainly different, it cannot be excluded that the first applicant, being Somali, was little accustomed to the Latin alphabet at the time of his signature in 2013. This situation may have evolved by the time the applicant signed his declaration in 2015 and thus the Court finds no reason to doubt its veracity in the present circumstances. Indeed, the Court considers that the submissions made by the first applicant ’ s legal representatives, together with the first applicant ’ s declaration in February 2015 as well as that of his lawyer in Germany dated September 2015, leave no doubt that the first applicant wishes to pursue his application. 63. Accordingly, the Court rejects the Government ’ s request to strike the application no. 25794/13 out of its list of cases under Article 37 § 1 of the Convention, and continues the examination of the case. III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 64. The applicants complained about the conditions of their detention in Warehouse 2 and Block B in Safi Barracks. They relied on Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Admissibility 1. The Government ’ s objection as to non-exhaustion of domestic remedies (a) The parties ’ submissions 65. The Government submitted that the applicants had not brought their complaint before the domestic authorities. They considered that the applicants had a twofold remedy, namely constitutional redress proceedings to challenge the conditions of their detention while they were in detention and an action for damage in tort after they left detention. They further noted that an action under the European Convention Act was not subject to any time-limits. A summary of their submissions can be found in Mahamed Jama v. Malta ( no. 10290/13, §§ 49-53, 26 November 2015). 66. The applicants submitted that there existed no effective domestic remedy which should have been used. A summary of their lawyers ’ submissions can be found in Mahamed Jama ( cited above, §§ 54-57 ). (b) The Court ’ s assessment 67. The Court notes that in the present case, when the applicants lodged their application with the Court (on 17 April 2013) complaining, inter alia, about their conditions of detention, the applicants were still in detention, and thus, apart from requiring a remedy providing compensation, they required to have a preventive remedy capable of putting an end to the ongoing violation of their right not to be subjected to inhuman or degrading treatment. 68. In a number of cases concerning the same situation, the Court has already found that none of the remedies indicated by the Government, alone or in aggregate, satisfy the requirements of an effective remedy in the sense of preventing the alleged violation or its continuation in a timely manner (see Mahamed Jama, cited above, §§ 58-66, and Moxamed Ismaaciil and Abdirahman Warsame v. Malta, nos. 52160/13 and 52165/13, §§ 43-51, 12 January 2016 ). 69. It follows that the Government ’ s objection is dismissed. 2. Conclusion 70. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ submissions (a) The applicants 71. The applicants considered the conditions of detention to be basic. They noted in particular the lack of access to constructive or recreational activities, insufficient provision of basic needs (including clothing), lack of information, difficulties in communicating with the outside world, limited access to open air, and obstacles in obtaining the most basic services. Other factors which had to be taken into consideration were their young age, their inability to communicate in any language apart from Somali, and the fact that they were detained in a facility with adult men from many different ethnic, linguistic and cultural backgrounds. Further, the detention centre was staffed by men, most having a security background, leaving a huge gap in the provision of social welfare services to detainees, in spite of their best efforts. In their view all the above took a greater toll, given their personal circumstances and situation while they were in detention. In particular both applicants claimed that they had been bullied and victimised by fellow detainees in both the facilities where they had been detained. 72. They referred to the international reports about the matter, noting that while those reports did not refer to Warehouse 2, but solely to Warehouse 1, the conditions were practically identical in both warehouses. According to the CPT the warehouses were unsuitable to accommodate people in the long term. 73. The first applicant also considered the warehouses to be overcrowded. There was no privacy, and he felt insecure as there was no protection from abuse and victimisation. He also emphasised that he had a number of health problems while he was in detention, during which period he was unable to obtain the necessary medical care; no support was provided while he was waiting for his age- assessment procedure. 74. Relying on the Court ’ s case-law the applicants submitted that when assessing conditions of detention account had to be taken of the cumulative effect of the conditions, and that the minimum level of severity of ill ‑ treatment or degrading treatment depended on the circumstances of the case, such as the duration, physical and mental effects, sex, age and state of health of the victim. In the present case, at the time of their detention both the applicants were minors. They noted that in Mubilanzila Mayeka and Kaniki Mitunga v. Belgium (no. 13178/03, ECHR 2006 ‑ XI) concerning the detention of a five-year-old child, the Court had emphasised that steps should be taken to enable the effective protection of children and vulnerable members of society, including reasonable measures to prevent ill-treatment of which the authorities have or ought to have knowledge ( § 53). According to the Court, her very young age, her immigration status, and the fact that she was unaccompanied rendered that child extremely vulnerable, and the respondent State owed her a duty of care and protection as part of its positive obligations under Article 3 ( § 55). The applicants submitted that even though they were older than the applicant in the aforementioned case, they were nevertheless minors and thus should have benefited from the enhanced guarantees provided by law for the protection of this vulnerable category of asylum seekers. 75. They referred to Article 37 of the Convention on the Rights of the Child (see paragraph 41 above), to which Malta was a party. They noted that national law provided that “in the implementation of the provisions relating to material reception conditions and health care, account shall be taken of the specific situation of vulnerable persons which shall include minors, unaccompanied minors and pregnant women, found to have special needs after an individual evaluation of their situation”. It also stipulated that in the implementation of the provisions relating to the reception of minors “the best interests of the child shall constitute a primary consideration”. It did allow, however, that unaccompanied minors “aged sixteen years or over may be placed in accommodation centres for adult asylum seekers”. Moreover, minor asylum seekers are entitled to “ have access to the education system under similar conditions to Maltese nationals... Access to the education system shall not be postponed for more than three months from the date the application for asylum was lodged by the minor... Provided that this period may be extended to one year where specific education is provided in order to facilitate access to the education system.” They noted that although the law does not specifically prohibit the detention of minors, several human rights monitoring bodies had emphasised that detention of children should be avoided (see paragraphs 48 and 54 above). 76. The applicants clarified that their complaint did not only relate to the physical conditions in which they were detained, which they considered to be very bad, but also to the severely detrimental impact that detention had on their wellbeing due to their particular personal circumstances. They noted that both the applicants spent around five months (from August to mid ‑ January) in Warehouse 2 and around three months (from mid-January to the respective dates of their release in April) in Block B. 77. They referred to the report by the ICJ (see paragraphs 52 et seq., above) and further noted that Warehouse 2, as its name implied, was designed for storage purposes and not to accommodate people. From the inside of the warehouse it was practically impossible to look outside, as all the windows were set high in the wall. This also limited the light inside the building and the ventilation. The only exits from the building were two doors to the yard, which were locked during the night. The first applicant complained that in summer it was scorching hot, and that he had been the victim of abuse by one of the hundreds of people of various ethnicities housed in the warehouse. The applicants submitted that according to information obtained at the time, in August and September 2012 Warehouse 2 contained far more than the stipulated 200 detainees (approximately 290-320 people ). From October the number of people held there went down to 200 or less and continued to go down progressively until January, when the detainees still held there were transferred to Block B. 78. The only recreational activity available in detention was watching television or spending time in the yard adjoining the block. This lack of facilities had been commented on by the CPT and the ICJ. The first applicant noted that it was however difficult to join in playing football because the yard was small and all the other detainees were older than him. Both applicants complained that there was hardly anything for them to do to occupy their minds during their time in detention; the second applicant noted that he was left with a lot of time to worry about his situation. 79. The applicants noted that it was not true that English classes were offered at Safi (they were offered at Lyster Barracks, another detention centre) and the SPARKLET project ended in November 2012, so it was only operating for the first three months of the applicants ’ detention and even while it was operational it only served small groups of migrants at any given time. 80. Both applicants complained about their access to medical care and the quality of medical care provided. In particular they noted the unavailability of interpreters (excluding fellow detainees ); missed hospital appointments; and delay in the provision of medication/unavailability of medicine prescribed. While not doubting the efficacy of the medical personnel providing a service - given that they were more often than not communicating with migrants with little or no knowledge of English - it was difficult to understand how they could provide a quality service in an average of six minutes per patient (in the light of the Government submissions, see paragraph 94 below ). The applicants again referred to the CPT report and the JRS Malta report, Bridging Borders (see IV. Relevant Materials, above ). 81. The applicants submitted that the centres at Safi Barracks were both staffed exclusively by Detention Service personnel, most of whom came from a security background and were neither trained nor competent to provide psychological or social support to detainees. While the applicants acknowledged that the personnel did their best, there was no provision of psycho-social support to detainees, especially to the applicants who were minors. Thus many of their concerns related to the treatment they experienced at the hands of fellow detainees which could not be addressed. The applicants highlighted that they were not provided with support to deal with the harsh realities of life in detention. 82. Both applicants complained about the food in detention and that they mostly ate chicken while in detention. The first applicant complained that his skin was itching from the bad diet and when he tried to complain to the soldiers he was told that the food would remain as it was. They considered that the quality and quantity of the food provided lacked variety and was not culturally appropriate. According to reports by Médecins Sans Frontières and the JRS (relevant links submitted to the Court) the diet provided had led to a number of gastrointestinal problems among detainees. 83. The applicants submitted that they received very little information apart from that provided by the Refugee Commissioner at the initial stages of the asylum procedure. Neither of them understood the written information, provided by the immigration authorities in Arabic, about their rights and obligations while in detention. They were also provided with very little information about the age- assessment procedure, to the extent that the second applicant felt compelled to go on a hunger strike in protest about the length of the procedure to determine his age. They referred to reports on the matter (see IV. Relevant Materials, above ). 84. As to the lack of contact with the outside world, the applicants noted that like all the other detainees they were provided with a five ‑ euro phone card once every two months. This meant that their contact with their families was extremely limited. Being minors this was particularly hard for them to bear. The credit provided was quite limited and often insufficient to make long ‑ distance calls. Other, less costly, options were not available since detainees did not have Internet access. The lack of Internet access also hampered their access to information about what was happening in the outside world. 85. Contrary to what the Government claimed, both applicants stated that they were not provided with the basic items they needed while in detention. The first applicant explained that when he arrived in detention the only things he was given were two sheets, one T -shirt, a blanket and two pairs of underwear but no shoes, not even flip-flops. It was only after four months that he was given shoes he could wear to play football, and that was only because he protested. In the meantime he had had to make do with some shoes which had been left behind by other Somalis who had since been released. 86. The applicants found the living conditions in detention very difficult, particularly because of the fact that they had to live with so many people. They highlighted how unsafe they both felt in the often tense and violent atmosphere of detention, where other violent individuals were hosted (despite criminal records); both applicants describe incidents of bullying and intimidation which left them feeling very threatened and unsafe in detention, where it was impossible for them to obtain protection or effective redress for the harm suffered. Apart from being a minor, the first applicant also belonged to a minority group in that he was a member of the Midgan, a minority tribe, which caused him to fear other detainees, who often also stole his food. The applicants failed to understand how they, as minors, could be detained with other aggressive individuals, without any form of protection, supervision or support. Furthermore they admitted that they did not always report certain individuals for fear of reprisals. They noted that incidents of assault in detention were common, particularly among detainees, although few if any were reported, possibly due to doubts about the efficacy of the system in place to provide redress. A report entitled Becoming Vulnerable in Detention, National Report on Malta, July 2010 under the DEVAS project, reported that 28% of respondents interviewed for the study reported being physically assaulted while in detention. Of these 68% were assaulted by other detainees; 18% of them reported that they had filed complaints in cases of physical assault, but none reported that the complaints had resulted in any change. 87. Furthermore, the applicants had to contend with the anxiety of not knowing what would happen to them or how long they would be detained. As the months went by, the adults who had arrived in Malta with them were released with protection, while they remained detained awaiting the outcome of the age- assessment procedure. This made life fraught with anxiety to the extent that the first applicant suffered from insomnia, and the second applicant repeatedly refused food in protest. The applicants claimed that prolonged detention caused a significant deterioration in their physical and mental well-being which was exacerbated by the lack of any real possibility of obtaining effective redress and the knowledge that detention was not serving any useful purpose and was in no way proportionate to the aim sought to be achieved. 2. The Government ’ s submissions 88. The Government submitted that the Safi Detention centre (a military base) had two warehouses (House 1 and House 2) as well as ( according to the photographs submitted ) a two-storey building called B Block. They explained that Warehouse 2 had been closed at the beginning of 2013 for refurbishment. Both warehouses have a capacity of 200 persons and host only men and male minors undergoing age- assessment procedures. They consist of a single open space with half-length low partitions between rows of bunk beds. At the entrance of the warehouse, there is a common area with tables, benches and a television, which exits onto an outdoor recreational facility. There is also access to secluded sanitary facilities with hot and cold water which respect the privacy of the individual using the shower facilities. All compounds have recreation yards which are accessible to inmates from sunrise to sunset. 89. The Government submitted that they allocated substantial sums of money to secure the maintenance and upkeep of detention centres, while also providing shelter, food, clothing, and medical assistance to migrants. In the Government ’ s view the facility catered for all the needs of the migrants. Further, as far as possible migrants with different ethnicities and religious beliefs were kept separate while in detention. 90. According to the Government, upon arrival an emergency bag is distributed and a second bag is supplied on the second day. Further supplies are provided on a regular basis to cater for the migrants ’ well-being, including that of the applicants, who did not have the financial means to purchase supplies. Every two weeks new cleaning products were supplied to each room in order to secure the cleanliness of the areas. The applicants were also given clothing and supplies to cater for personal hygiene, and had access to sanitary facilities equipped with hot and cold water, as well as secluded showers. 91. The Government submitted that whilst in detention the applicants were housed in a sheltered compound with adequate bedding and were provided with three meals a day on a daily basis (the menu changed daily and food was prepared in different ways) and mineral water. Meals were provided from a pre-set menu, however, particular dietary requests were regularly respected and the food supplied respected the relevant religious traditions. The detention centres had a medical practitioner and a nurse who provided on-site treatment and could make referrals to hospital treatment, and “custody clinics” were set up in all compounds housing migrants. 92. The detention centre is equipped with ceiling fans which can be used in the summer months and the building is equipped with windows that can be easily opened and which provide the necessary ventilation and circulations of air. The Government submitted that access to outside exercise was limited to one and a half hours daily, during which immigrants could engage in sports activities such as playing football. 93. Immigration detainees were provided with telephone cards and various telephones can be found in the detention centre. Moreover, the Red Cross also operated a mobile phone calling service on a daily basis. The Government submitted that access to the Internet or mobile phones was restricted for security reasons. Interpreters were provided for free at the detention centres. The detainees were further provided with stationery and books on request and have unlimited access to NGOs and legal assistance. In 2013 the immigrants also had the opportunity to take part in an EU funded project (SPARKLET) which provided, inter alia, educational and cultural activities. 94. The Government explained that medical services at the Safi Detention Centre had been outsourced since April 2007. Two doctors and two nurses visited the detention centres every day (except weekends) between 8 am and 3 pm ( nurses) and 9 am and 11 pm (doctors). On a daily basis each doctor examined forty inmates, meaning that 400 patients were examined each week. The clinics on site at each of the compounds in Safi were refurbished and equipped with basic medical equipment. During silent hours (when doctors were not present) detainees were allowed to visit the nearest health centre to see a doctor. Furthermore, nurses from the Malta Memorial District Nursing Association (MMDNA) reported to detention centres during weekdays in the evening and weekends both morning and evenings to dispense medicines. For migrants requiring mental health support, the doctor would refer them for further treatment at Mount Carmel Hospital (the State mental health hospital) and other referrals to the State General Hospital were made if specialised attention was necessary. 95. As to the second applicant ’ s allegation, the Government reiterated that the Safi Detention centre had a clinic staffed by a doctor and a nurse, and in their absence he would have been taken to a health centre had he sought medical assistance. However, the Government claimed that no such report had ever been made by the applicant with the detention staff, neither was any report made concerning any beating by a fellow immigrant – in respect of which the second applicant gave no details. Further, the Government alleged (without any supporting evidence) that one of the people the applicant feared was in prison while the second applicant was detained in Safi. The Government further noted that the authorities kept medical appointments, but that it was the migrants who often refused to attend them, and other dates thus had to be fixed. The Government also contested the second applicant ’ s allegation that he was not given shoes on arrival, as the emergency bag distributed on the first day contains flip ‑ flops. 96. The Government submitted that the applicants were given information on their arrival, by means of an information leaflet and verbally, and the Commissioner for Refugees holds information sessions with the aid of interpreters. As to information concerning the AWAS procedure the Government submitted that information was easily available had the applicants asked for it from the staff at the detention centre; however it did not appear that they had asked for it. The Government further noted that although coming from a security background the staff at the detention centre were given training to provide support to migrants. 97. The Government referred to the Court ’ s case-law ( Sizarev v. Ukraine, no. 17116/04, 1 7 January 2013; Selcuk and Akser v. Turkey, nos. 23184/94 and 23185/94, 24 April 1998; Pretty v. the United Kingdom, no. 2346/02, ECHR 2002 ‑ III; and particularly Aden Ahmed v. Malta, no. 55352/12, 23 July 2013 ), and the principles cited therein. They considered that the conditions of detention at issue could not be compared to those in facilities in respect of which the Court had found a violation (for example, Dougoz v. Greece, no. 40907/98, ECHR 2001 ‑ II; S.D. v. Greece, no. 53541/07, 11 June 2009; and A.A. v. Greece, no. 12186/08, 22 July 2010). In the present case the applicants had been given ample personal space (as the warehouse was never overcrowded) with adequate ventilation and bedding as well as exercise time. They had a balanced and varied diet and other items as mentioned above. Moreover, according to the Government “immediate” action was being taken to determine the applicants ’ age and conclude the procedure. In their view the applicants ’ age verification assessment (which had been concluded within seven months) had been determined diligently, and no room for uncertainty arose, given that their age could not be determined ictu oculi. 98. The Government distinguished the case from that of Aden Ahmed (cited above) in that the detention period in the present case was shorter, and the applicants were not particularly fragile given that they were sixteen and seventeen years of age respectively, thus were almost adults, who from the information provided did not require frequent medical attention. Their age also distinguished the case from that of Mubilanzila Mayeka and Kaniki Mitunga (cited above) which concerned a five-year old child. Bearing in mind all the above, the Government considered that there had not been a violation of Article 3. 3. The Court ’ s assessment (a) General principles 99. The Court reiterates that, according to its case-law, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 of the Convention. The assessment of this minimum level of severity is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim. Furthermore, in considering whether treatment is “degrading” within the meaning of Article 3, the Court will have regard to whether its object is to humiliate and debase the person concerned and whether, as far as the consequences are concerned, it adversely affected his or her personality in a manner incompatible with Article 3. However, the absence of such a purpose cannot conclusively rule out a finding of a violation of Article 3 (see Riad and Idiab v. Belgium, nos. 29787/03 and 29810/03, §§ 95-96, 24 January 2008). 100. Under Article 3, the State must ensure that a person is detained in conditions which are compatible with respect for human dignity and that the manner and method of the execution of the measure do not subject the individual to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention (see Riad and Idiab, cited above, § 99; S.D. v. Greece, cited above, § 47; and A.A. v. Greece, cited above, § 55 ). When assessing conditions of detention, account has to be taken of the cumulative effects of these conditions, as well as of specific allegations made by the applicant (see Dougoz, cited above, § 46). The length of the period during which a person is detained in specific conditions also has to be considered (see, among other authorities, Alver v. Estonia, no. 64812/01, § 50, 8 November 2005, and Aden Ahmed, cited above, § 86). 101. The extreme lack of personal space in the detention area weighs heavily as an aspect to be taken into account for the purpose of establishing whether the impugned detention conditions were “degrading” from the point of view of Article 3 (see Karalevičius v. Lithuania, no. 53254/99, § 36, 7 April 2005, and Yarashonen v. Turkey, no. 72710/11, § 72, 24 June 2014, and, for a detailed analysis of the principles concerning the overcrowding issue, see Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, §§ 143 ‑ 48, 10 January 2012 ). 102. The Court further reiterates that, quite apart from the necessity of having sufficient personal space, other aspects of physical conditions of detention are relevant for the assessment of compliance with Article 3. Such elements include access to outdoor exercise, natural light or air, availability of ventilation, and compliance with basic sanitary and hygiene requirements (see Ananyev and Others, cited above, § 149 et seq. for further details, and M.S.S. v. Belgium and Greece [GC], no. 30696/09, § 222, ECHR 2011). The Court notes in particular that the Prison Standards developed by the Committee for the Prevention of Torture make specific mention of outdoor exercise and consider it a basic safeguard of prisoners ’ well-being that all of them, without exception, be allowed at least one hour of exercise in the open air every day and preferably as part of a broader programme of out ‑ of ‑ cell activities (see Ananyev and Others, cited above, § 150). 103. With more specific reference to minors, the Court has established that it is important to bear in mind that the child ’ s extreme vulnerability is the decisive factor and takes precedence over considerations relating to the status of illegal immigrant (see Mubilanzila Mayeka and Kaniki Mitunga, cited above, § 55, and Popov v. France, nos. 39472/07 and 39474/07, § 91, 19 January 2012 ). Children have specific needs that are related in particular to their age and lack of independence, but also to their asylum-seeker status. The Court has also observed that the Convention on the Rights of the Child encourages States to take appropriate measures to ensure that a child who is seeking to obtain refugee status enjoys protection and humanitarian assistance, whether the child is alone or accompanied by his or her parents (see to this effect Popov, cited above, § 91 ). 104. Accordingly, the reception conditions for children seeking asylum must be adapted to their age, to ensure that those conditions do not “create ... for them a situation of stress and anxiety, with particularly traumatic consequences” (see Tarakhel v. Switzerland [GC], no. 29217/12, § 99, ECHR 2014 (extracts) ). Otherwise, the conditions in question would attain the threshold of severity required to come within the scope of the prohibition under Article 3 of the Convention (ibid.). (b) Application to the present case 105. The Court notes that it has already had occasion to express its concern about the appropriateness of the place and the conditions of detention in Safi Barracks (see Suso Musa v. Malta, no. 42337/12, § 101, 23 July 2013 in the context of an Article 5 complaint ). In that case it noted that various international reports had expressed concerns on the matter. Both the CPT and the ICJ considered that the conditions in question could amount to inhuman and degrading treatment under Article 3 of the Convention; furthermore, those conditions had been exacerbated during the Libyan crisis, a time when Mr Suso Musa was in detention. In that light, the Court found it difficult to consider such conditions as appropriate for persons who have not committed criminal offences but who, often fearing for their lives, have fled from their own country. 106. The Court notes that the present case concerns a period subsequent to that commented on by international bodies (see above). However it is safe to assume that Warehouse 2 remained in the same conditions it was in in 2011 (date of reports) until it closed for refurbishment in 2013, the time when the applicants were moved to Block B. In respect of the latter Block the Government have not claimed that any further improvements have been made since those reports. 107. As to overcrowding the Court notes that, on the one hand, the applicants submitted that in the months of August and September Warehouse 2 hosted approximately 290-320 inmates. On the other hand the Government have submitted that Warehouse 2 can host around 200 inmates and that it was never overcrowded. The Court observes that the Government did not provide any specific rebuttal to this allegation, nor did they submit any relevant documentation concerning the number of detainees present at the relevant time, or the size of the premises. The Court considers that in the absence of exact numbers and the relevant measurements of Warehouse 2 being provided by any of the parties it cannot conclude with certainty that there existed overcrowding which was so severe as to justify in itself a finding of a violation of Article 3. Nevertheless, the Court notes that even at the time of the CPT visit in 2011 Warehouse 1 was hosting more than 200 inmates (see paragraph 47 above). The Court thus considers that the numbers submitted by the applicants are credible. Those numbers indicate that Warehouse 2 hosted around 50% more individuals than it was intended to host, and in the Court ’ s view this gives rise to a presumption that the applicants were detained in overcrowded conditions for around two months. 108. In any event it is for the Court to assess the other aspects of the conditions of detention which are relevant to the assessment of compliance with Article 3. 109. As regards the suffering from heat raised by the first applicant, the Court reiterates that suffering from cold and heat cannot be underestimated, as such conditions may affect well-being, and may in extreme circumstances affect health (see Aden Ahmed, cited above, § 94). Nevertheless, the Court notes that ceiling fans were in place, and despite the fact that Malta is an extremely hot country in the summer months the Court considers that the authorities cannot be expected to provide the most advanced technology. The applicants were also provided with telephone cards and three meals a day. The meals of which the applicants complain do not appear to have been entirely unbalanced or to have affected their health ‑ indeed it has not been shown that the first applicant ’ s allegation as to itching was as a result of the food provided. Further, the applicants ’ basic needs had been seen to by the distribution of items free of charge, and even if it is regrettable that certain items were not readily available, the applicants were not left without clothes or in unhygienic conditions – even if partly with private help. 110. However, the Court is concerned about a number of other factors. The applicants complained of limited light and ventilation - while this concern has not been specifically highlighted by international reports in connection with Warehouse 2 and Block B ( where both applicants were detained for around five and three months respectively), the Court notes that such reports considered that Warehouse 2 was not intended to host people, and that it was not suitable to accommodate people for prolonged periods (see paragraphs 46 and 47 above). Similarly, although not emphasised by the applicants, the CPT report considered that the sanitary facilities in the warehouses were in a deplorable state and that the conditions of detention there were “appalling”. The situation appears to have improved slightly in the last three months of their detention when they were detained in Block B. However, the Court also notes that while the applicants had access to a common area equipped with a television, as well as to a yard, for a specific time daily, the CPT also highlighted the complete lack of any organised activity in the warehouses, and the poor situation prevailing also in Block B. 111. These concerns assume a new dimension in view of the fact that the applicants were minors at the time of their detention (as confirmed by the domestic procedures). While it is true that the applicants were not young children, they still fell within the international definition of minors, in respect of which detention should be a last resort and which should be limited to the shortest time possible. As mentioned above, under the Court ’ s case-law reception conditions for children seeking asylum must be adapted to their age. However no measures were taken to ensure that the applicants as minors received proper counselling and educational assistance from qualified personnel specially mandated for that purpose (see Mubilanzila Mayeka and Kaniki Mitunga, cited above, § 50 ). Nor were any entertainment facilities provided for persons of their age. Furthermore, the Court cannot ignore the applicants ’ submissions to the effect that there was a tense and violent atmosphere, as also documented by reports (see paragraph 86 above). The lack of any support mechanism for the applicants, as minors, as well as the lack of information concerning their situation, must have exacerbated their fears. 112. The Court reiterates that a State ’ s obligations concerning the protection of migrant minors may be different depending on whether they are accompanied or not (see Rahimi v. Greece, no. 8687/08, § 63, 5 April 2011). However, the Court has found violations in both ambits. It found a violation of Article 3 in Popov (cited above, § 103) concerning accompanied minors in view of the children ’ s young age (five months and three years), the length of their detention (over a period of fifteen days) and the conditions of their confinement in a detention centre. It also found a violation of Article 3 in the Muskhadzhiyeva and Others (cited above, § 63) concerning four young children who were held, accompanied by their mother, for one month pending their removal – the Court having taken into consideration their young age (seven months to seven years), the duration of the detention and their health status (see also Kanagaratnam v. Belgium, no. 15297/09, § 69, 13 December 2011). The Court has also previously found, in Rahimi ( cited above, §§ 85-86) in respect of an unaccompanied minor (aged fifteen) in such facilities, that the conditions of his detention were so poor that they undermined the very essence of human dignity and that they could be regarded in themselves, without taking into consideration the length of the detention (a few days), as degrading treatment in breach of Article 3 of the Convention (see also Mubilanzila Mayeka and Kaniki Mitunga, cited above, §§ 50-59, in connection with a five - year - old unaccompanied minor). 113. The Court observes that in the applicants ’ case the aforementioned conditions persisted for a period of around eight months, during which no specific arrangements were made for the applicants as migrants awaiting the outcome of their age-assessment procedure (whose status as minors was later confirmed). The Court reiterates that the applicants, as asylum-seekers, were particularly vulnerable because of everything they had been through during their migration and the traumatic experiences they were likely to have endured previously (see M.S.S., cited above, § 232). Moreover, in the present case the applicants, who were sixteen and seventeen years of age respectively, were even more vulnerable than any other adult asylum seeker detained at the time because of their age (see, a contrario, Mahamed Jama, cited above, § 100). 114. It follows, in the present case, that since the applicants were minors who were detained for a period of around eight months, the cumulative effect of the conditions complained of amounted to degrading treatment within the meaning of the Convention. 115. There has accordingly been a violation of Article 3 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION 116. The applicants complained that they did not have a remedy which met the requirements of Article 5 § 4, as outlined in the Court ’ s jurisprudence, to challenge the lawfulness of their detention. The provision reads as follows: “Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” A. Admissibility 117. The Government submitted that Article 5 § 4 did not apply to the present case since, according to the Court ’ s case-law, such a remedy is no longer required once an individual is lawfully free. They noted that the applicants had been released. 118. The applicants noted that they were entitled to raise this complaint, since they had not had such a remedy during their detention, and had instituted proceedings before the Court while they were still in detention. 119. While it is true that Article 5 § 4 cannot be relied on by a person who has been lawfully released (see Stephens v. Malta (no. 1), no. 11956/07, § 102, 21 April 2009), the Court notes that when the applicants lodged their application with the Court they were still detained and they were precisely complaining that they did not have an effective remedy to challenge the lawfulness of their detention during the time they were detained. They are not complaining of the absence of such a remedy following their release. In consequence the provision is clearly applicable. Moreover, the Court reiterates that a released person may nonetheless challenge under Article 5 § 4 the speediness of a remedy ( see Aden Ahmed, cited above, § 105 ). 120. It follows that the Government ’ s objection must be dismissed. B. Merits 1. The parties ’ submissions 121. The applicants relied on the Court ’ s findings in Louled Massoud v. Malta (no. 24340/08, 27 July 2010), whereby the Court held that the available remedies in the Maltese domestic system were ineffective and insufficient for the purposes of Article 5 § 4. A summary of their submissions can be found in Mahamed Jama ( cited above, §§ 109-11 ). 122. The Government submitted that this review was provided by Article 409A of the Maltese Criminal Code, and even if that were not so, it could be provided by means of proceedings before the constitutional jurisdictions. A summary of their lawyers ’ submissions can be found in Mahamed Jama ( cited above, §§ 112-14 ). 2. The Court ’ s assessment 123. The Court has already had occasion to examine such complaints and found that it had not been shown that applicants in situations such as that of the present case had at their disposal an effective and speedy remedy under domestic law by which to challenge the lawfulness of their detention (see, inter alia, Mahamed Jama, cited above, §§ 115-21, and Moxamed Ismaaciil and Abdirahman Warsame, cited above, § 112-18 ). There is no reason to hold otherwise in the present case. 124. Article 5 § 4 of the Convention has therefore been violated. IV. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION 125. The applicants also complained under Article 5 § 1 (f) that their continued detention for eight months was arbitrary and unlawful, as it did not fall under either of the two limbs under the mentioned provision. In any event, even assuming it fell under the first limb, the law was not precise and did not provide for procedural safeguards. Moreover, their continued detention could not be considered reasonably required for the purpose, nor was it closely connected to the purpose of preventing an unauthorised entry. Furthermore, they had been detained in conditions which were not appropriate for young asylum seekers. The provision reads as follows: “Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.” A. Admissibility 126. The Government submitted that the applicants had not brought their complaint before the domestic authorities. 127. The Court has already held that the applicants did not have at their disposal an effective and speedy remedy by which to challenge the lawfulness of their detention (see paragraph 123 above). It follows that the Government ’ s objection must be dismissed. 128. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ submissions (a) The applicants 129. The applicants submitted that their initial detention was for the purpose of deportation as a result of the removal order and was in line with Article 14 (2) of the Immigration Act. Nevertheless once they applied for asylum, they could no longer be detained under either limb as, in their view, Maltese law provided that once such application was lodged the asylum seeker “shall not be removed ... and the applicant shall be allowed to enter or remain in Malta pending a final decision” (see Relevant domestic law). However, even assuming that their detention was to be considered as falling under the first limb, they considered that an approximately eight month detention (eight months and three days and seven months and twenty ‑ four days respectively) was arbitrary, as it exceeded the time reasonably required for its purpose, and thus could not be closely connected to the purpose of preventing an unauthorised entry. 130. They noted that their detention was not the result of an individual decision to detain on the particular circumstances of their cases. It was not a measure taken after less coercive measures were deemed to be ineffective. Their detention was a result of a blanket policy applied to all without distinction, which made the detention arbitrary and discriminatory, irrespective of the Government ’ s claims to the contrary. 131. Moreover, at no point was their continued detention reviewed in order to determine whether it remained closely connected to the purpose pursued or whether the length of their detention had exceeded that reasonably required for the purpose. They believe that their eight-month detention pending the outcome of age- assessment procedures in fact exceeded the length of time “ reasonably required for the purpose” and cannot be said to be “ closely connected to the purpose of preventing unauthorised entry”, especially given the relatively straightforward assessment process which consists of one or two interviews and an X-ray of the bones of the wrist. In their view, none of these procedures required more than a few days to be concluded. In fact, most of the months were spent waiting either to be sent for the ‘ bone test ’ or for the result of the test and the issuing of the care order. In fact the first applicant was taken for the bone test some weeks after his arrival but only released months later, although he was verbally informed in the interim that he was found to be a minor. As to the second applicant, he was interviewed some weeks after his arrival and taken for his bone test some five months later. They considered, that a huge influx of applications could not be used as a justification for unnecessarily prolonged administrative procedures, as a result of which they remained in detention. 132. Further, the applicants submitted that in spite of the fact that the AWAS procedure can have a determining impact on the continued detention of individuals detained in terms of the Immigration Act, it was not adequately regulated by law or by publicly available rules or procedures. The only reference to age- assessment procedures was that in the Government ’ s policy document and subsidiary legislation (see Relevant domestic law below). They considered that nearly eight months to reach a determination on age was unjustifiable, and had an impact on the amount of time spent in detention (irrespective of the result of that process). 133. The applicants claimed that the Age- Assessment Procedure has often been criticised, as it is plagued by delays and by a lack of adequate procedural guarantees, including lack of information about the procedure followed and the possibility of appeal. No reasons are ever given for decisions and there is no real possibility to challenge the decision taken by the AAT. In addition, migrants undergoing Age- Assessment Procedures are detained throughout the procedures, usually in centres with adults without any special consideration for the fact that they are minors. They referred to the 2012 report of Human Rights Watch entitled ‘ Boat - ride to Detention: Adult and Child Migrants in Malta ’ [2]. 134. Furthermore, the applicants submitted that they had not been kept in conditions which were appropriate for minor asylum seekers, and that they had no access to procedural safeguards. (b) The Government 135. The Government submitted that the applicants ’ deprivation of liberty was a consequence of their unauthorised entry and pending the examination of their asylum application, thus in line with the first limb of the provision. Once they resulted to be minors, they had been released. They noted that practically all immigrants reaching Malta did not carry documents and thus ascertaining their identities upon entry was a lengthy process which dependent on the cooperation of the migrants themselves. Moreover, the large number of undocumented migrants constituted a huge and entirely justified security concern for Malta. 136. The Government considered that the detention was carried out in good faith, as the centre at issue had been set up especially for that purpose, and the detention had fulfilled all the conditions indicated by the Court in Saadi v. the United Kingdom [GC] (no. 13229/03, ECHR 2008). They also considered that detention was based in law and was not discriminatory, nor was it applied across the board. 137. They further noted that age assessment of persons who were quite young was fast tracked as in such cases there was little difficulty in assessing the age. In straightforward cases release from detention was effected within a maximum of two weeks from arrival. On the other hand with teenagers close to the age of adulthood, the procedure involved more steps and thus inevitably took longer. The procedure involved the holding of interviews with AWAS officials, and if they were inconclusive a Further Age Verification (FAV) test which consists of an X-ray of the hand and wrist bones and which, according to the Government, gives accurate results. At the same time the Government also admitted that the test had a margin of error of two years. 138. The Government submitted that in 2013 567 individuals had claimed to be unaccompanied minors and most of them had required referral to the FAV test. Thus, any delay in the examination of the applicants ’ request was as a result of this huge influx. Moreover, one had to bear in mind the small size of the island and its limited resources, which sometimes resulted in a waiting list to carry out certain tests. They further noted that out of the 567 individuals, only 274 were ruled to be minors. 2. The Court ’ s assessment 139. The Court refers to its general principles relevant to the present case as reiterated in Mahamad Jama (cited above, §§ 136-40). 140. It is noted that the applicants do not complain about the lawfulness and compliance with Article 5 of their detention between their arrival and the date when they applied for asylum (see paragraph 1 29 above, in primis ). 141. As to the subsequent period the Court observes that the applicants had been detained in accordance with the provisions of the Immigration Act (Articles 5 and 14(2), Chapter 217 of the Laws of Malta). While expressing reservations about the quality of all the applicable laws seen together in such context, the Court has already accepted that in cases similar to those of the applicants, the detention had a sufficiently clear legal basis, and that up to the decision on an asylum claim, such detention can be considered to fall under the first limb of Article 5 § 1 (f), namely to “prevent effecting an unauthorised entry” (see Suso Musa, cited above, § 99 and Mahamed Jama, cited above, § 144). There is no reason to find otherwise in the present case. 142. It remains to be determined whether the detention in the present case was not arbitrary, namely whether it was carried out in good faith; whether it was closely connected to the ground of detention relied on by the Government; whether the place and conditions of detention were appropriate and whether the length of the detention exceeded that reasonably required for the purpose pursued. 143. The Court has already noted a series of odd practices on the part of the domestic authorities when dealing with immigrant arrivals and subsequent detentions and it expressed its reservations as to the Government ’ s good faith in applying an across-the-board detention policy (save for specific vulnerable categories) and the by-passing of the voluntary departure procedure (see Suso Musa, cited above § 100 and Mahamed Jama, cited above, § 146 ) - reservations which it maintains, noting that the two practices persisted in the present case (see paragraphs 7 and 10 above in connection with the first applicant, and paragraphs 12 and 15 with the second applicant ). 144. Nevertheless, the focus of the applicants ’ complaint concerns the fact that they were detained despite the fact that at the time they had claimed to be minors (and later found to be so). The Court reiterates that the necessity of detaining children in an immigration context must be very carefully considered by the national authorities (see Mahamed Jama, cited above, § 147). It is positive that in the Maltese context, when an individual is found to be a minor, the latter is no longer detained, and he or she is placed in a non-custodial residential facility, and that detention of minors should be no longer than what is absolutely necessary to determine their identification and health status (see paragraphs 31 and 36 above). An issue may however arise, inter alia, in respect of a State ’ s good faith, in so far as the determination of age may take an unreasonable length of time - indeed, a lapse of various months may also result in an individual reaching his or her majority pending an official determination (ibid. ). 145. The Court is, on the one hand, sensitive to the Government ’ s argument that younger looking individuals are fast tracked, and that the procedure is lengthier only in cases of persons close to adulthood, as well as their statement that in 2013 out of 567 individuals, only 274 were ruled to be minors ( in 2012 only forty-six turned out to be minors out of seventy ‑ five ‑ see Mahamed Jama, cited above, § 148). The Court observes that, as noted in Mahamed Jama, cited above, less than 10% of arrivals claimed to be minors in 2012 (that is when the applicants started their age ‑ assessment procedure). In this connection, the Court considers that despite the fact that “borderline” cases may require further assessment, the numbers of alleged minors per year put forward by the Government cannot justify a duration of more than seven months to determine the applicants ’ claims. Indeed, the Government have not explained why it was necessary for the first applicant in the present case to wait for a few weeks for his first age - assessment interview (see paragraph 18 above) and to wait for around seven months to have a decision following a standard medical test. The Court notes that during this time the first applicant remained in detention, despite having been told orally that he had been found to be a minor six months before (see paragraph 18). Similarly the Government have not explained why, following his interview, the second applicant had to wait for five months to have the FAV test and to wait for another two and a half months for such a decision, and therefore for his release under a care order. Indeed, in the present case it transpires that in October 2012 the authorities were already aware that the first applicant was a minor, and yet he remained in detention until a care order was issued on 19 April 2013, while the second applicant remained in detention for at least another month after his age was determined. In this connection the Court notes that Government policy clearly states that vulnerable people are exempt from detention and that unaccompanied minors are considered as a vulnerable category (see paragraphs 30 and 31 above). 146. It follows that, even accepting that the detention was closely connected to the ground of detention relied on, namely to prevent an unauthorised entry, and in practice to allow for the applicants ’ asylum claim to be processed with the required prior age assessment, the delays in the present case, particularly those subsequent to the determination of the applicants ’ age, raise serious doubts as to the authorities ’ good faith. A situation rendered even more serious by the fact that the applicants lacked any procedural safeguards (as shown by the finding of a violation of Article 5 § 4, at paragraph 124 above), as well as the fact that at no stage did the authorities ascertain whether the placement in immigration detention of the applicants was a measure of last resort for which no alternative was available (see, mutatis mutandis, Popov, cited above, § 119). 147. Moreover, as to the place and conditions of detention, the Court has already found that the situation endured by the applicants as minors, for a duration of eight months, was in breach of Article 3 of the Convention. 148. In conclusion, bearing in mind all the above, the Court considers that in the present case the applicants ’ detention was not in compliance with Article 5 § 1. Accordingly, there has been a violation of that provision. V. ALLEGED VIOLATION OF ARTICLE 5 § 2 OF THE CONVENTION 149. The applicants further complained under Article 5 § 2 that the Return Decision and Removal Order, provided to them in English, a language they did not understand, did not contain sufficient information enabling them to challenge their detention. The provision reads as follows: “ Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.” 150. The Government submitted that the complaint was outside the six ‑ month limit, in so far as the applicants had been informed of the reasons of their detention on 16 and 31 August 2012 respectively, while they lodged their application only on 17 April 2013, which is eight months after the alleged violation. 151. Relying on their submissions concerning non-exhaustion of domestic remedies, the applicants reiterated that migrant detainees had difficulties instituting judicial proceedings, and in consequence they submitted that they were not in a position to take action regarding this complaint within the six-month period prescribed by law. 152. The Court notes that in the absence of a remedy (see paragraph 123 above), in principle, the six-month time-limit must be calculated from the date of the omission complained of (see Aden Ahmed, cited above, § 69, and Blokhin v. Russia [GC], no. 47152/06, § 106, ECHR 2016 ). 153. Even assuming that in the early stages of their detention the applicants were unable to contest such a measure because of their inability to understand the factual circumstances and their lack of knowledge of the English language, the Court observes that no specific reasons have been brought to the Court ’ s attention, explaining why they were able to bring proceedings around eight months after their arrival and subsequent detention, but not two months earlier, in order to comply with the six-month rule (see Mahamed Jama, cited above, § 166). 154. In such circumstances the Court considers that, the applicants having been informed of the reasons of their detention on 16 and 31 August 2012 respectively and having lodged their application on 17 April 2013, the complaint is inadmissible for non-compliance with the six -month rule set out in Article 35 § 1 and must be rejected pursuant to Article 35 § 4 of the Convention. VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION 155. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 156. The applicants claimed 50,00 0 euros (EUR) each in respect of non ‑ pecuniary damage, as a result of the violations of Article 3 and 5 in the present case. 157. The Government argued that the claims made by the applicants were excessive, and noted that such awards were made by the Court only in cases of excessive beatings by the authorities and other serious Article 3 violations. They considered that a sum of EUR 3,000 would suffice in non ‑ pecuniary damage, given the circumstances of the case. 158. The Court notes that it has found a violation of Articles 3, 5 § 1 and 5 § 4 in the present case, and therefore awards the applicants EUR 12,000 each, in respect of non-pecuniary damage. B. Costs and expenses 159. The applicants also each claimed EUR 4,000 for costs and expenses incurred before the Court. The sum corresponded to sixty hours of legal work at an hourly rate of EUR 60, as well as clerical costs of EUR 400. 160. The Government submitted that the award for costs and expenses should not exceed EUR 2,000 jointly. 161. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the above criteria and the documents in its possession, the Court considers it reasonable to award the sum of EUR 4,000 jointly, covering costs for the proceedings before the Court. C. Default interest 162. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 5 § 1 (right to liberty and security) of the Convention, noting in particular that the applicants where minors and that their detention, in inappropriate conditions, had been particularly lengthy. It also held that there had been a violation of Article 5 § 4 (right to have lawfulness of detention decided speedily by a court) of the Convention, as the applicants had not had an effective remedy to challenge the lawfulness of their detention. |
546 | Violent acts by private individuals | II. RELEVANT DOMESTIC LAW AND PRACTICE A. Relevant domestic law 1. Criminal Code 28. The relevant provisions of the Criminal Code ( Kazneni zakon, Official Gazette nos. 125/2011, with further amendments) read as follows: Article 87 “(21) Hate crime is a criminal offence committed on the grounds of race, skin colour, religion, national or ethnic origin, disability, sexual orientation or gender identity of another person. Such conduct shall be deemed an aggravating circumstance if a more severe punishment is not explicitly prescribed in this Code.” Bodily injury Article 117 (1) Whoever inflicts bodily injury on another or impairs a person ’ s health shall be punished by a fine or by imprisonment not exceeding one year. (2) Whoever commits an act punishable under paragraph 1 motivated by hate ... shall be punished by imprisonment not exceeding three years. (3) A criminal offence punishable under paragraph 1 shall the subject of a private prosecution.” Threats Article 139 “(2) Whoever makes a serious threat to kill or to inflict serious bodily injury on another ... shall be punished by a fine or by imprisonment not exceeding three years. ... (4) ... [ A ] criminal offence punishable under paragraph (2) of this Article shall be prosecuted at the request [of the victim], save for an offence committed as a hate crime ... [which shall be prosecuted of the prosecutor ’ s own motion ].” 2. Code of Criminal Procedure 29. The relevant part of the Code of Criminal Procedure ( Zakon o kaznenom postupku, Official Gazette, nos. 152/2008, 76/2009, 80/2011, 121/2011, 91/2012, 143/2012, 56/2013, 145/2013 and 152/2014) provides: Article 2 “(1) Criminal proceedings shall only be instituted and conducted upon the request of a competent prosecutor. ... (2) In respect of criminal offences subject to public prosecution the competent official shall be the State Attorney, and in respect of criminal offences that may be prosecuted privately the competent prosecutor shall be a private prosecutor. ... ... (4) Where the State Attorney finds that there are no grounds to institute or conduct criminal proceedings, the victim may take his place as a subsidiary prosecutor under the conditions prescribed by this Act.” 30. Articles 55 to 63 regulate the rights and duties of private prosecutors and of victims acting as subsidiary prosecutors. A private prosecutor ( privatni tužitelj ) is a victim who brings a private prosecution in respect of criminal offences for which such a prosecution is expressly allowed by the Criminal Code (less serious offences). A victim acting as a subsidiary prosecutor ( oštećeni kao tužitelj ) is an individual taking over criminal proceedings in respect of criminal offences subject to public prosecution where the relevant prosecuting authorities, for whatever reason, have decided not to prosecute. When acting as a subsidiary prosecutor, the victim has all the rights in the proceedings which the State Attorney ’ s Office would have as a public prosecuting authority, save for those vested in the State Attorney ’ s Office as a State body. Under Article 58 § 2, the State Attorney ’ s Office is authorised, on a discretionary basis, to take over a prosecution from a subsidiary prosecutor at any point before the end of the trial. B. Relevant domestic practice and materials concerning discrimination 31. The relevant domestic practice and other materials concerning discrimination in general are set out in the case of Guberina v. Croatia (no. 23682/13, §§ 27 and 29-31, ECHR 2016). C. Other relevant domestic practice 32. The list published on the Constitutional Court ’ s Internet site (available at http://www.usud.hr ) of various domestic authorities ’ decisions which are not amenable to review on the basis of individual constitutional complaints includes a decision rejecting a victim ’ s criminal complaint. Reference is made to the following case-law of the Constitutional Court: U-III-1523/2000, U-III-1122/2007, U-III-2411/2012 and U-III-1488/2014. III. RELEVANT INTERNATIONAL MATERIALS 33. In 2009 the Organization for Security and Cooperation in Europe (OSCE) published “Hate Crime Laws: A Practical Guide” as a tool to assist States in implementing their commitment to “ consider enacting or strengthening, where appropriate, legislation that prohibits discrimination based on, or incitement to hate crimes”. The relevant part of the Guide (pp. 50-51) reads: “The United States has a well-documented pattern of crimes directed at interracial couples and families. Similarly, a study in Finland found that one-fifth of hate crime cases involved victims who were ethnically Finnish “in the company of a person of foreign extraction” or whose ‘ spouse was of foreign extraction. ’ ... Persons affiliated or associated with a group that shares a protected characteristic can easily be overlooked as a category to include in hate crime laws. Therefore, hate crime laws should also penalize those who attack others on the basis of their association with members of protected groups.” 34. In the further publication entitled “ Preventing and responding to hate crimes: A resource guide for NGOs in the OSCE region” (2009) the OSCE stressed the following (pp. 22-23): “The Characteristics of the Victim and the Perpetrator ... Characteristics of a victim that may be indicators of hate crime include: • The victim is identifiable as “different” from the attackers and, often, from the majority community, by such factors as appearance, dress, language or religion; ... • The victim was in the company of or married to a member of a minority group.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 TAKEN IN CONJUNCTION WITH ARTICLE 14 OF THE CONVENTION 35. The applicant complained of a failure by the domestic authorities to effectively discharge their positive obligations in relation to a racially motivated act of violence against her. She relied on Articles 3, 8 and 14 of the Convention. 36. The Court finds that the domestic authorities ’ obligations related to the incident at issue may arise under all the Articles of the Convention relied upon by the applicant, namely Articles 3 and 8 taken alone and in conjunction with Article 14. However, in view of the injuries which the applicant sustained (see paragraph 9 above) and the presumed racially motivated violence against her, the Court considers that the applicant ’ s complaint should be examined under Article 3 (see Abdu v. Bulgaria, no. 26827/08, § 39, 11 March 2014). 37. Further, the authorities ’ duty to investigate the existence of a possible link between a discriminatory motive and an act of violence can fall under the procedural aspect of Article 3 of the Convention, but may also be seen to form part of the authorities ’ positive responsibilities under Article 14 to secure the fundamental values enshrined in Article 3 without discrimination. Owing to the interplay of Articles 3 and 14 of the Convention in the context of violence motivated by discrimination, issues such as those raised by the present case may fall to be examined under Article 3 alone, with no separate issue arising under Article 14, or may require examination of Article 3 in conjunction with Article 14. This is a question to be decided in each case depending on the facts and the nature of the allegations made (see, for example, B.S. v. Spain, no. 47159/08, § 59, 24 July 2012). 38. In the present case, in view of the applicant ’ s allegations that the violence against her had racial overtones which were completely overlooked by the authorities in the investigation, the Court finds that the most appropriate way to proceed would be to subject the applicant ’ s complaints to a simultaneous examination under Article 3 taken in conjunction with Article 14 (compare Abdu, cited above, § 46). 39. These provisions read as follows: Article 3 “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Article 14 “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” A. Admissibility 1. The parties ’ arguments 40. The Government argued that there had been no reason for the applicant to lodge her application with the Court while the relevant proceedings were still pending at the domestic level. They also argued that the applicant had failed to exhaust all the available remedies, in particular the mechanisms of a private or subsidiary prosecution, a civil action for damages and protection from discrimination or a constitutional complaint before the Constitutional Court. 41. The applicant contended that she had properly exhausted the available domestic remedies and had brought her application to the Court when it had become evident that there would be no criminal prosecution in connection with the attack on her. She also considered that a constitutional complaint was not an effective domestic remedy that needed to be used. 2. The Court ’ s assessment 42. The Court reiterates that under Article 35 § 1 of the Convention, it may only deal with an application after all domestic remedies have been exhausted. States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system, and those who wish to invoke the supervisory jurisdiction of the Court as concerns complaints against a State are thus obliged to use first the remedies provided by the national legal system. The obligation to exhaust domestic remedies therefore requires an applicant to make normal use of remedies which are available and sufficient in respect of his or her Convention grievances. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness (see Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 70-71, 25 March 2014, and Gherghina v. Romania (dec.) [GC], no. 42219/07, § 85, 9 July 2015). 43. Article 35 § 1 also requires that the complaints intended to be made subsequently in Strasbourg should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law and, further, that any procedural means that might prevent a breach of the Convention should have been used (see Vučković and Others, cited above, § 72). 44. The Court further reiterates that the requirement for the applicant to exhaust domestic remedies is normally determined with reference to the date on which the application was lodged with the Court ( see Baumann v. France, no. 33592/96, § 47, ECHR 2001 ‑ V (extracts)). However, the Court also accepts that the last stage of the exhaustion of domestic remedies may be reached shortly after the lodging of the application but before the Court determines the issue of admissibility (see, for instance, Zalyan and Others v. Armenia, nos. 36894/04 and 3521/07, § 238, 17 March 2016, with further references). 45. In the light of the above principles, the Court notes, firstly, that the applicant lodged her application with the Court on 20 March 2014 and that her case was finally determined at the domestic level on 31 October 2014 when the competent State Attorney ’ s Office dismissed her criminal complaint (see paragraph 26 above). In those circumstances, there are no grounds for dismissing the applicant ’ s complaint under Articles 3 and 14 of the Convention for failure to comply with the requirements of Article 35 § 1 of the Convention on the basis of the first objection raised by the Government (see, for instance, Milić and Nikezić v. Montenegro, nos. 54999/10 and 10609/11, § 74, 28 April 2015, and Zalyan and Others, cited above, §§ 238-239). 46. With regard to the Government ’ s objection that the applicant should have pursued a subsidiary or private prosecution, the Court notes that it has already held that where an applicant has lodged a criminal complaint concerning acts of violence and alleging discriminatory motives behind the attack, that person is not required to pursue the matter by instituting a subsidiary prosecution (see R.B. v. Hungary, no. 64602/12, § 62, 12 April 2016 ) or private prosecution, which would not cover the alleged racist insults or the racist motives for the violence against the applicant, which are a fundamental part of the applicant ’ s complaint (see Abdu, cited above, § 51). This is particularly true where domestic law provides for public criminal prosecution of violent offences with a hate - crime element, as it does in the present case (see paragraph 28 above). 47. Further, with regard to the possibility of lodging a civil action for damages, the Court has already held that such an action would not fulfil the State ’ s procedural obligation under Article 3 in a case of assault (see Beganović v. Croatia, no. 46423/06, § 56, 25 June 2009, and Abdu, cited above, § 51). The same is true for a civil action for protection from discrimination, particularly given that the applicant had already raised her discrimination complaint in the criminal complaint she lodged with the competent State Attorney ’ s Office (see paragraph 23 above, and compare Guberina, cited above, §§ 49-50, and M.C. and A.C. v. Romania, no. 12060/12, § 63, 12 April 2016). 48. Lastly, with regard to the Government ’ s objection that the applicant should have lodged a constitutional complaint, the Court notes, in view of the practice of the Constitutional Court (see paragraph 32 above), that it was not necessary for the applicant to use that remedy before lodging her application with the Court. 49. In view of the above considerations, the Court rejects the Government ’ s objections. It notes that the applicant ’ s complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ submissions 50. The applicant submitted that it had been clear from the evidence that she had been the victim of a hate crime related to her relationship with Š.Š., who was of Roma origin. She argued that the domestic framework was deficient given that the relevant domestic law, as interpreted by the State Attorney ’ s Office, did not provide protection for individuals who were victims of discriminatory violence by association with another person having the relevant characteristic. Moreover, she submitted that the competent domestic authorities had not paid due attention to the racial overtones implicit in the attack on her and had failed to prosecute the attackers for a hate crime merely because she had not been of Roma origin herself. That, in the applicant ’ s view, had run counter to the domestic authorities ’ obligations under the Convention. 51. The Government argued that the police had diligently investigated all the circumstances of the attack on the applicant and Š.Š. In their view, it had been unequivocally established that Š.Š. had been attacked because of his Roma origin and that he had been the exclusive target of the attack. The applicant, on the other hand, had been a collateral victim and had been attacked only after she had tried to help Š.Š. However, the attackers had not continued to chase her after she had escaped but had continued beating Š.Š. instead. In that connection, the Government stressed that it remained open for the applicant to bring private prosecutions against S.K. and I.M. for the attack on her. The Government also pointed out that during the proceedings before the domestic authorities the applicant had never suggested that she had been the victim of a hate crime related to her partner ’ s Roma origin. In those circumstances, the Government submitted that the domestic authorities had done everything which could reasonably be expected of them to elucidate the circumstances of the attack on the applicant. 2. The Court ’ s assessment (a ) General principles 52. The Court refers to the well-established principles of its case-law on Articles 3 and 14 of the Convention concerning the State ’ s obligations when confronted with cases of violent incidents triggered by suspected racist attitudes, in particular related to the Roma origin of a victim (see Šečić v. Croatia, no. 40116/02, §§ 50-54 and 66-67, 31 May 2007; Abdu, cited above, §§ 40-46; Balázs v. Hungary, no. 15529/12, §§ 47-54, 20 October 2015; and R.B. v. Hungary, cited above, §§ 39-45 ). 53. In particular, the Court would reiterate that when investigating violent incidents triggered by suspected racist attitudes, the State authorities are required to take all reasonable action to ascertain whether there were racist motives and to establish whether feelings of hatred or prejudices based on a person ’ s ethnic origin played a role in the events. Treating racially motivated violence and brutality on an equal footing with cases lacking any racist overtones would be tantamount to turning a blind eye to the specific nature of acts which are particularly destructive of fundamental human rights. A failure to make a distinction in the way in which situations which are essentially different are handled may constitute unjustified treatment irreconcilable with Article 14 of the Convention (see Abdu, cited above, § 44). 54. In practice it is, admittedly, often extremely difficult to prove a racist motive. The obligation on the respondent State to investigate possible racist overtones to an act of violence is an obligation regarding the means employed rather than an obligation to achieve a specific result. The authorities must take all reasonable measures, having regard to the circumstances of the case ( ibid., § 45, with further references), 55. In this connection it should be reiterated that not only acts based solely on a victim ’ s characteristics can be classified as hate crimes. For the Court, perpetrators may have mixed motives, being influenced as much or more by situational factors as by their biased attitude towards the group to which the victim belongs (see Balázs, cited above, § 70). Moreover, Article 14 of the Convention, in the light of its objective and the nature of the rights which it seeks to safeguard, also covers instances in which an individual is treated less favourably on the basis of another person ’ s status or protected characteristics (see Guberina, cited above, § 78 ). 56. It accordingly follows that the obligation on the authorities to seek a possible link between racist attitudes and a given act of violence, which is part of the responsibility incumbent on States under Article 3 taken in conjunction with Article 14 of the Convention, concerns not only acts of violence based on a victim ’ s actual or perceived personal status or characteristics but also acts of violence based on a victim ’ s actual or presumed association or affiliation with another person who actually or presumably possesses a particular status or protected characteristic. 57. In such instances, the authorities must do what is reasonable in the circumstances to collect and secure the evidence, explore all practical means of discovering the truth and deliver fully reasoned, impartial and objective decisions, without omitting suspicious facts that may be indicative of racially induced violence. Moreover, where there are arguable grounds for believing that an individual has suffered acts contrary to Article 3, the national authorities are required to conduct an effective official investigation to establish the facts of the case and identify and, if appropriate, punish those responsible (see, for instance, Balázs, cited above, §§ 51-52, with further references). (b) Application of those principles to the present case 58. The applicant argued that the existing domestic legal framework concerning racially motivated acts of violence, as interpreted by the relevant State Attorney ’ s Office, was deficient and that the manner in which the relevant domestic authorities had responded to her complaint of racially motivated violence had been defective to the point of constituting a violation of the State ’ s positive obligations under the Convention. The Court will therefore first assess the existence and adequacy of the legal mechanisms for the protection of people from violence motivated by discriminatory attitudes in the domestic legal order and then the manner of their application in practice (see Beganović, cited above, §§ 72 and 74; Valiulienė v. Lithuania, no. 33234/07, §§ 78-79, 26 March 2013; and Abdu, cited above, § 47). 59. With regard to the domestic legal framework, the Court notes that its case-law consistently and clearly establishes that Article 3 of the Convention requires the implementation of adequate criminal-law mechanisms once the Court has found that the level of severity of violence inflicted by private individuals attracts protection under that provision (see Beganović, cited above, 69 ). In the Court ’ s view, those principles apply a fortiori in cases of violence motivated by racial discrimination (see paragraphs 36 and 46 above). 60. The Croatian legal framework in this context includes a special provision for hate crime as an aggravating form of other criminal offences. In particular, under Article 87 § 21 of the Criminal Code any offence committed against another on grounds of race is to be treated as an aggravating circumstance if a more serious punishment for hate crime is not already explicitly prescribed in the Criminal Code (see paragraph 28 above). 61. In so far as relevant for the case at issue, it should be noted that hate crime is explicitly described as an aggravating form of the offence of causing bodily injury under Article 117 § 2 of the Criminal Code. Moreover, both the offence of causing bodily injury and that of making serious threats are liable to public criminal prosecution whenever a hate - crime element is arguably involved. In this connection the Court also notes that it is sufficient under the Criminal Code for a hate crime to be committed on the grounds of or out of racial hatred, without requiring the victim to personally possess the protected characteristic or status (see paragraph 28 above). 62. In view of the above, the Court considers that the Croatian legal system provided adequate legal mechanisms to afford an acceptable level of protection to the applicant in the circumstances. The Court must therefore examine whether the manner in which the criminal-law mechanisms were implemented in the instant case was defective to the point of constituting a violation of the respondent State ’ s obligations under the Convention. 63. The Court notes that following the report about the attack on the applicant and her partner, the police immediately responded by going to the scene and conducted a preliminary investigation on the basis of a suspected attack on a couple motivated by hatred against people of Roma origin (see paragraphs 6-8 above). 64. In the course of the investigation the police interviewed the applicant, her partner and the two assailants. While the two assailants denied any racial overtones to the conflict (see paragraph 13 above), the applicant and her partner provided information to the contrary. The applicant ’ s partner Š.Š. explained how the two men, after his remark that they were drunk, had turned on him and started uttering various insults related to his Roma origin, after which they had attacked him. He also explained that the applicant had been attacked when she had run to his aid (see paragraph 11 above). For her part, the applicant confirmed Š.Š. ’ s version of events (see paragraph 12 above). Their statements thus suggested that the applicant had fallen victim to a racially motivated attack owing to the fact that she had been in the company of Š.Š. (see paragraphs 21 and 23 above). 65. The Court would reiterate that where any evidence of racist verbal abuse comes to light in an investigation, it must be checked and, if confirmed, a thorough examination of all the facts should be undertaken in order to uncover any possible racist motives (see Balázs, cited above, § 61). Moreover, the general context of the attack has to be taken into account. As explained in the Court ’ s case-law, the domestic authorities should be mindful that perpetrators may have mixed motives, being influenced as much or more by situational factors as by their biased attitude (see paragraph 55 above). 66. Likewise, it should be reiterated that under the Convention the obligation on the authorities to seek a possible link between racist attitudes and a given act of violence exists not only with regard to acts of violence based on the victim ’ s actual or perceived personal status or characteristics but also with regard to acts of violence based on the victim ’ s actual or perceived association or affiliation with another person who actually or presumably possesses a particular status or protected characteristic (see paragraph 56 above). Indeed, some hate - crime victims are chosen not because they possess a particular characteristic but because of their association with another person who actually or presumably possesses the relevant characteristic. This connection may take the form of the victim ’ s membership of or association with a particular group, or the victim ’ s actual or perceived affiliation with a member of a particular group through, for instance, a personal relationship, friendship or marriage (see paragraphs 3 3- 3 4 above). 67. In the case in issue, the prosecuting authorities confined their investigation and analysis to the hate - crime element of the violent attack against Š.Š. They failed to carry out a thorough assessment of the relevant situational factors and the link between the applicant ’ s relationship with Š.Š. and the racist motive for the attack on them. Indeed, the police lodged a criminal complaint only with regard to the attack on Š.Š., treating the applicant merely as a witness, although she had also sustained injuries in the course of the same attack while in his company (see paragraphs 14 and 34 above). 68. The Court further notes that the applicant made specific allegations of racially motivated violence directed against her in her criminal complaint of 29 July 2013 (see paragraph 23 above). The Court also notes that the issue was raised in the course of the criminal proceedings against S.K. and I.M., where further information came to light suggesting that the applicant had been a victim of racially motivated violence (see paragraph 21 above). However, in its assessment of the available information concerning the violent attack on the applicant the State Attorney ’ s Office emphasised the fact that the applicant was not of Roma origin herself and could therefore not be considered a victim of a hate crime. It did so without conducting further interviews or obtaining the relevant information related to the applicant ’ s specific complaints (see paragraph 26 above). 69. The Court reiterates that its role is not to rule on the application of domestic law or to adjudicate on the individual guilt of persons charged with offences, but to review whether and to what extent the competent authorities, in reaching their conclusion, may be deemed to have submitted the case to the careful scrutiny required by the procedural obligations under the Convention (see Abdu, cited above, § 33). Likewise, aware of its subsidiary role, the Court is mindful that it is prevented from substituting its own assessment of the facts for that of the national authorities. 70. Nevertheless, the Court cannot but note that the prosecuting authorities ’ insistence on the fact that the applicant herself was not of Roma origin and their failure to identify whether she was perceived by the attackers as being of Roma origin herself, as well as their failure to take into account and establish the link between the racist motive for the attack and the applicant ’ s association with Š.Š., resulted in a deficient assessment of the circumstances of the case (see paragraphs 52-57 and 68 above). 71. That impaired the proper investigation by the domestic authorities of the applicant ’ s allegations of a racially motivated act of violence against her to an extent irreconcilable with the State ’ s obligation to take all reasonable steps to uncover any possible racist motives behind the incident (compare Balázs, cited above, § 75). In view of the failure of the State Attorney ’ s Office to subject the case to the necessary scrutiny, as required under the Convention, the Court cannot but conclude that the domestic authorities failed to comply with their obligations under the Convention when they rejected the applicant ’ s criminal complaint of a racially motivated violent attack on her without conducting a further investigation in that respect prior to their decision. 72. This is sufficient for the Court to conclude that there has been a violation of Article 3 under its procedural aspect in conjunction with Article 14 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 73. The applicant complained that by not responding to her criminal complaint the domestic authorities had prevented her from obtaining the attackers ’ personal details, without which it had been impossible for her to bring a civil action for damages. She relied on Article 6 of the Convention. 74. The Government contested that argument. 75. The Court notes that by informing the applicant ’ s partner of the indictment that had been lodged against S.K. and I.M. in the relevant criminal court and then also informing her legal representative of the matter (see paragraph 20 above), the State Attorney ’ s Office gave the applicant sufficient information about the personal details of the two assailants to allow her to institute a civil action for damages against them. Moreover, she was informed of their personal details in the course of the criminal proceedings concerning their attack on her partner, who was represented by the same lawyer as later represented the applicant (see paragraph 21 above). She was also informed of the personal details of the assailants in the decision rejecting her criminal complaint (see paragraph 26 above). 76. It therefore follows that the applicant ’ s complaint under Article 6 of the Convention is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 77. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 78. The applicant claimed 20,000 euros (EUR) in respect of non-pecuniary damage. 79. The Government considered the applicant ’ s claim excessive, unfounded and unsubstantiated. 80. Having regard to all the circumstances of the present case, the Court accepts that the applicant has suffered non-pecuniary damage which cannot be compensated for solely by the finding of a violation. Making its assessment on an equitable basis, the Court awards the applicant EUR 12,5 00 in respect of non-pecuniary damage, plus any tax that may be chargeable to her. B. Costs and expenses 81. The applicant also claimed EUR 4,000 for the costs and expenses incurred before the domestic courts and for those incurred before the Court. 82. The Government considered this claim unfounded and unsubstantiated. 83. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of 2,200 EUR covering costs under all heads plus any tax that may be chargeable to the applicant. C. Default interest 84. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 3 (prohibition of inhuman or degrading treatment) under its procedural aspect in conjunction with Article 14 (prohibition of discrimination) of the Convention, finding that the Croatian authorities had failed in their obligations under the Convention when rejecting the applicant’s criminal complaint without conducting further investigation prior to their decision. The Court noted in particular that, under Convention case law, a person may be a victim of a violent hate crime not only when they have been attacked because they themselves have a certain characteristic – but also when they are attacked because they have an actual or presumed association with another person, who has (or is perceived to have) that characteristic. States have an obligation to recognise both types as hate crimes, and investigate them accordingly. However, in this case the Croatian authorities had repeatedly failed to take the necessary care in identifying the violence against the applicant as a suspected hate crime. |
967 | Internet | II. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND PRACTICE A. The Limitation Act 1980 18. Section 2 of the Limitation Act 1980 (“the 1980 Act”) sets out a general limitation period of six years in tort actions. Section 4A of the 1980 Act qualifies this limitation period as regards defamation actions and provides as follows: “ The time - limit under section 2 of this Act shall not apply to an action for – (a) libel or slander; or (b) slander of title, slander of goods or other malicious falsehood; but no such action shall be brought after the expiration of one year from the date on which the cause of action accrued .” 19. Section 32A of the 1980 Act provides: “(1) It if appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which – (a) the operation of section 4A of this Act prejudices the plaintiff or any person whom he represents; and (b) any decision of the court under this subsection would prejudice the defendant or any person whom he represents; the court may direct that that section shall not apply to the action or shall not apply to any specified cause of action to which the action relates. (2) In acting under this section the court shall have regard to all the circumstances of the case and in particular to – (a) the length of, and the reasons for, the delay on the part of the plaintiff; (b) where the reason or one of the reasons for the delay was that all or any of the facts relevant to the cause of action did not become known to the plaintiff until after the end of the period mentioned in section 4A – ( i ) the date on which any such facts did become known to him; and (ii) the extent to which he acted promptly and reasonably once he knew whether or not the facts in question might be capable of giving rise to an action; and (c) the extent to which, having regard to the delay, relevant evidence is likely – ( i ) to be unavailable; or (ii) to be less cogent than if the action had been brought within the period mentioned in section 4A.” B. The Internet publication rule 20. Duke of Brunswick v. Harmer [1849] 14 QB 154 lays down a common - law rule of some significance. On 19 September 1830 an article was published in the Weekly Dispatch. The limitation period for libel was, at that time, six years. The article defamed the Duke of Brunswick. Seventeen years after its publication an agent of the Duke purchased a back number containing the article from the Weekly Dispatch ’ s office. Another copy was obtained from the British Museum. The Duke sued on those two publications. The defendant contended that the cause of action was time-barred, relying on the original publication date. The court held that the delivery of a copy of the newspaper to the plaintiff ’ s agent constituted a separate publication in respect of which suit could be brought. 21. In Godfrey v. Demon Internet Ltd [2001] QB 201 the respondent brought an action in defamation against the appellants who were Internet service providers. They had received and stored on their news server an article, defamatory of the respondent, which had been posted by an unknown person using another service provider. The judge stated: “In my judgment the defendants, whenever they transmit and whenever there is transmitted from the storage of their news server a defamatory posting, publish that posting to any subscriber to their ISP [Internet service provider] who accesses the newsgroup containing that posting. Thus every time one of the defendants ’ customers accesses ‘ soc culture thai ’ and sees that posting defamatory of the plaintiff there is a publication to that customer.” C. The defence of qualified privilege 22. The leading case on the defence of qualified privilege is Reynolds v. Times Newspapers Ltd [2001] 2 AC 127. That case established that qualified privilege is an absolute defence to libel proceedings. In the leading judgment before the House of Lords, Lord Nicholls of Birkenhead explained the defence as follows : “ The underlying principle is conventionally stated in words to the effect that there must exist between the maker of the statement and the recipient some duty or interest in the making of the communication. Lord Atkinson ’ s dictum, in Adam v. Ward [1917] A.C. 309, 334, is much quoted: ‘ a privileged occasion is ... an occasion where the person who makes a communication has an interest or a duty, legal, social, or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it. This reciprocity is essential ’. ” D. The Code of Practice of the Press Complaints Commission 23. The Press Complaints Commission has adopted a Code of Practice which is regularly reviewed and amended as required. Paragraph 1 of the current Code of Practice reads as follows: 1. Accuracy “ ( i ) The Press must take care not to publish inaccurate, misleading or distorted information, including pictures. ( ii) A significant inaccuracy, misleading statement or distortion once recognised must be corrected, promptly and with due prominence, and – where appropriate – an apology published. ( iii) The Press, whilst free to be partisan, must distinguish clearly between comment, conjecture and fact. ( iv) A publication must report fairly and accurately the outcome of an action for defamation to which it has been a party, unless an agreed settlement states otherwise, or an agreed statement is published.” E. The United States single - publication rule 24. Unlike the United Kingdom, the courts of the United States of America have chosen to apply the “single - publication rule”. In the case of Gregoire v. GP Putnam ’ s Sons (1948) 81 N.E.2d 45, a book originally put on sale in 1941 was still being sold in 1946 following several reprints. The New York Court of Appeals considered the rule in Duke of Brunswick v. Harmer, but concluded that it was formulated “in an era which long antedated the modern process of mass publication” and was therefore not suited to modern conditions. Instead, the court held that the limitation period started to run in 1941, when the book was first put on sale. The court pointed out that : “Under [ the rule in Duke of Brunswick v. Harmer ] the Statute of Limitation would never expire so long as a copy of such book remained in stock and is made by the publisher the subject of a sale or inspection by the public. Such a rule would thwart the purpose of the legislature.” 25. The single - publication rule was subsequently applied to a website publication in Firth v. State of New York (2002) NY int 88. In that case, a report published at a press conference on 16 December 1996 was placed on the Internet the same day. An action was brought over a year later. The New York Court of Appeals held that the limitation period started when the report was first uploaded onto the website and did not begin anew each time the website version of the report was accessed by a user. The court observed that : “The policies impelling the original adoption of the single - publication rule support its application to the posting of ... the report ... on the website ... These policies are even more cogent when considered in connection with the exponential growth of the instantaneous, worldwide ability to communicate through the Internet ... Thus a multiple publication rule would implicate an even greater potential for endless retriggering of the statute of limitations, multiplicity of suits and harassment of defendants. Inevitably, there would be a serious inhibitory effect on the open, pervasive dissemination of information and ideas over the Internet which is, of course, its greatest beneficial promise.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 26. The applicant complained that the Internet publication rule constitutes an unjustifiable and disproportionate restriction of its right to freedom of expression as provided in Article 10 of the Convention, which reads, in so far as relevant, as follows: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society ... for the protection of the reputation or rights of others .. .” A. Admissibility 27. The Court has consistently emphasised that Article 10 guarantees not only the right to impart information but also the right of the public to receive it (see Observer and Guardian v. the United Kingdom, 26 November 1991, § 59 (b), Series A no. 216, and Guerra and Others v. Italy, 19 February 1998, § 53, Reports of Judgments and Decisions 1998 ‑ I ). In the light of its accessibility and its capacity to store and communicate vast amounts of information, the Internet plays an important role in enhancing the public ’ s access to news and facilitating the dissemination of information in general. The maintenance of Internet archives is a critical aspect of this role and the Court therefore considers that such archives fall within the ambit of the protection afforded by Article 10. 28. The Court concludes that the applicant ’ s complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. The merits 1. The parties ’ observations ( a ) The applicant 29. The applicant contended that the Internet publication rule restricted its ability to maintain a publicly accessible Internet archive. It pointed to the “chilling effect” that the rule had upon freedom of expression, which it said was aggravated by the fact that it had not actively sought to disseminate the information contained in its Internet archive. The applicant submitted that Article 10 required the adoption of a single - publication rule. 30. The applicant contested the finding of the Court of Appeal that the maintenance of archives constituted an insignificant aspect of freedom of expression. The applicant pointed to the importance of the integrity and availability of historical records to an open and democratic society. 31. The applicant argued that since the defence of qualified privilege was a complete defence to the libel claim, it was under no obligation to publish a qualification in respect of the relevant articles until the litigation had been resolved. It pointed out that the Code of Practice of the Press Complaints Commission obliged newspapers to post a notice or qualification where a publication had been the subject of a judgment or settlement in favour of the complainant. Any other approach would require a large number of articles to be qualified. Attempts to limit qualification to those articles which were potentially libellous would be difficult: because the libellous nature of a publication may change over time, the applicant would be required to keep the entirety of its Internet archive under review. The applicant pointed out that approximately five hundred items were uploaded onto its Internet archive every day. 32. The applicant argued that it was open to the Court to consider the general principle which arose, notwithstanding the specific facts of the case. Although the applicant accepted that G.L. ’ s rights were also engaged, it considered that a single - publication rule would not constitute an excessive restriction on the right of effective access to the court. ( b ) The Government 33. The Government relied on the conclusions in the domestic proceedings that the journalists had not demonstrated the requisite standard of responsibility in respect of the two articles. They further relied on the fact that no qualification was added to the articles on the applicant ’ s website until 23 December 2000, over twelve months after the original libel proceedings were initiated. 34. Although the Government accepted that maintaining archives had a social utility, they considered that this was not an aspect of the exercise of freedom of expression which was of central or weighty importance, archive material being “stale news”. In the present case, the Government argued that there was no evidence that the applicant had been prevented or deterred from maintaining its online archive. Furthermore, the steps required of the applicant to remove the sting from its archive material were not onerous. 35. As regards the applicant ’ s claim of ceaseless liability, the Government observed that no question of ceaseless liability arose in the present case. The Government pointed out that the second action was contemporaneous with the first action and did not raise stale allegations many years after the event. In any case, even under a single - publication rule, ( i ) the continued publication of articles which the applicant knew to be defamatory, which were not qualified in any way and which were not defended as true would constitute a separate actionable tort under English law; and ( ii ) if accompanied by a statutory discretion along the lines of section 32 A of the Limitation Act 1980, the court may well have exercised that discretion to allow G.L. to bring the second action, having regard to the circumstances. 36. The Government highlighted that the present case also engaged the Article 8 and Article 6 rights of G.L. In the choice between the single - publication rule and the Internet publication rule, these competing interests should be balanced. They pointed to the fact that there was no consistency of approach to this issue in other jurisdictions and concluded that, on the facts of this case, the application of the Internet publication rule was a permissible and proportionate restriction on the applicant ’ s right to freedom of expression and did not violate Article 10 of the Convention. 2. The Court ’ s assessment 37. The Court notes that judgment was entered against the applicants in the second action. Furthermore, the applicant subsequently agreed to pay a sum of money in settlement of G.L. ’ s claims and costs in both actions. The Court therefore considers that the second action constituted an interference with the applicant ’ s right to freedom of expression. Such interference breaches Article 10 unless it was “prescribed by law”, pursued one or more of the legitimate aims referred to in Article 10 § 2 and was “necessary in a democratic society” to attain such aim or aims. ( a ) “ Prescribed by law ” 38. The applicant does not contest the lawfulness of the interference, which derived from the application of the rule set out in Duke of Brunswick v. Harmer and developed in the case of Godfrey v. Demon Internet Ltd. The Court sees no reason to hold that the interference was not lawful and therefore concludes that the interference with the applicant ’ s right to freedom of expression was “prescribed by law” within the meaning of Article 10 § 2. ( b ) Legitimate aim 39. The Internet publication rule is aimed at protecting the rights and reputation of others. It has not been disputed, and the Court also agrees, that the interference has a legitimate aim. ( c ) “ Necessary in a democratic society ” ( i ) General principles 40. The Court reiterates that freedom of expression constitutes one of the essential foundations of a democratic society and in that context the safeguards guaranteed to the press are particularly important. While the press must not overstep the boundaries set, inter alia, in the interest of “the protection of the reputation or rights of others”, it is nevertheless incumbent on it to impart information and ideas of public interest. Not only does the press have the task of imparting such information and ideas, but the public also has a right to receive them. In this way, the press fulfils its vital role as a “public watchdog” ( see Observer and Guardian, cited above, § 59 ). 41. The Court observes that the most careful of scrutiny under Article 10 is required where measures or sanctions imposed on the press are capable of discouraging the participation of the press in debates on matters of legitimate public concern ( see Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 64, ECHR 1999 ‑ III ). The Court further notes that particularly strong reasons must be provided for any measure limiting access to information which the public has the right to receive (see Timpul Info- Magazin and Anghel v. Moldova, no. 42864/05, § 31, 27 November 2007 ). 42. However, the Court reiterates that Article 10 does not guarantee a wholly unrestricted freedom of expression to the press, even with respect to press coverage of matters of serious public concern. When exercising its right to freedom of expression, the press must act in a manner consistent with its duties and responsibilities, as required by Article 10 § 2. These duties and responsibilities assume particular significance when, as in the present case, information imparted by the press is likely to have a serious impact on the reputation and rights of private individuals. Furthermore, the protection afforded by Article 10 to journalists is subject to the proviso that they act in good faith in order to provide accurate and reliable information in accordance with responsible journalism ( see Fressoz and Roire v. France [GC], no. 29183/95, § 54, ECHR 1999 ‑ I, and Bladet Tromsø and Stensaas, cited above, § 65 ). 43. Finally, it should be recalled that in assessing whether the interference was justified, it is not the role of the Court to substitute its views for those of the national authorities but to review the case as a whole, in the light of Article 10, and consider whether the decision taken by the national authorities fell within the margin of appreciation allowed to the member States in this area ( see Handyside v. the United Kingdom, 7 December 1976, § 50, Series A no. 24 ). ( ii ) Application of the above principles to the present case 44. The applicants maintain that they are exposed to litigation, without limit in time, on account of the adoption of the Internet publication rule instead of the single - publication rule. 45. The Court agrees at the outset with the applicant ’ s submissions as to the substantial contribution made by Internet archives to preserving and making available news and information. Such archives constitute an important source for education and historical research, particularly as they are readily accessible to the public and are generally free. The Court therefore considers that, while the primary function of the press in a democracy is to act as a “public watchdog”, it has a valuable secondary role in maintaining and making available to the public archives containing news which has previously been reported. However, the margin of appreciation afforded to States in striking the balance between the competing rights is likely to be greater where news archives of past events, rather than news reporting of current affairs, are concerned. In particular, the duty of the press to act in accordance with the principles of responsible journalism by ensuring the accuracy of historical, rather than perishable, information published is likely to be more stringent in the absence of any urgency in publishing the material. 46. The Court further observes that the introduction of limitation periods for libel actions is intended to ensure that those who are defamed move quickly to protect their reputations in order that newspapers sued for libel are able to defend claims unhindered by the passage of time and the loss of notes and fading of memories that such passage of time inevitably entails. In determining the length of any limitation period, the protection of the right to freedom of expression enjoyed by the press should be balanced against the rights of individuals to protect their reputations and, where necessary, to have access to a court in order to do so. It is, in principle, for contracting States, in the exercise of their margin of appreciation, to set a limitation period which is appropriate and to provide for any cases in which an exception to the prescribed limitation period may be permitted (see Stubbings and Others v. the United Kingdom, 22 October 1996, §§ 54-55, Reports 1996 ‑ IV ). 47. On the facts of the present case, the Court considers it significant that, although libel proceedings in respect of the two articles were initiated in December 1999, the applicant did not add any qualification to the articles in its Internet archive until December 2000. The Court notes the conclusion of the Court of Appeal that the attachment of a notice to archive copies of material which it is known may be defamatory would “normally remove any sting from the material”. To the extent that the applicant maintains that such an obligation is excessive, the Court observes that the Internet archive in question is managed by the applicant itself. It is also noteworthy that the Court of Appeal did not suggest that potentially defamatory articles should be removed from archives altogether. In the circumstances, the Court, like the Court of Appeal, does not consider that the requirement to publish an appropriate qualification to an article contained in an Internet archive, where it has been brought to the notice of a newspaper that a libel action has been initiated in respect of that same article published in the written press, constitutes a disproportionate interference with the right to freedom of expression. The Court further notes that the brief notice which was eventually attached to the archive would appear to undermine the applicant ’ s argument that any qualification would be difficult to formulate. 48. Having regard to this conclusion, it is not necessary for the Court to consider in detail the broader chilling effect allegedly created by the application of the Internet publication rule in the present case. The Court nonetheless observes that the two libel actions brought against the applicant concerned the same two articles. The first action was brought some two to three months after the publication of the articles and well within the one - year limitation period. The second action was brought a year later, some fourteen or fifteen months after the initial publication of the articles. At the time the second action was brought, the legal proceedings in respect of the first action were still under way. There is no suggestion that the applicant was prejudiced in mounting its defence to the libel proceedings in respect of the Internet publication due to the passage of time. In these circumstances, the problems linked to ceaseless liability for libel do not arise. The Court would, however, emphasise that while an aggrieved applicant must be afforded a real opportunity to vindicate his right to reputation, libel proceedings brought against a newspaper after a significant lapse of time may well, in the absence of exceptional circumstances, give rise to a disproportionate interference with press freedom under Article 10. 49. The foregoing considerations are sufficient to enable the Court to conclude that in the present case, the finding by the domestic courts in the second action that the applicant had libelled the claimant by the continued publication on the Internet of the two articles was a justified and proportionate restriction on the applicant ’ s right to freedom of expression. 50. There has accordingly been no violation of Article 10 of the Convention. | In this judgment the Court underlined that, in the light of its accessibility and its capacity to store and communicate vast amounts of information, the Internet plays an important role in enhancing the public’s access to news and facilitating the dissemination of information in general. In the present case, it found that there had been no violation of Article 10 (freedom of expression) of the Convention: since the archives were managed by the newspaper itself and the domestic courts had not suggested that the articles be removed altogether, the requirement to add an appropriate qualification to the Internet version had not been disproportionate. |
889 | Public or political figures | II. RELEVANT FRENCH AND MONEGASQUE LAW AND EUROPEAN TEXTS A. Relevant domestic law 41. The relevant provisions of the Civil Code are worded as follows : Article 9 “Everyone has the right to respect for his private life. Judges may, without prejudice to a right to compensation for the damage sustained, order any measures, such as seizure, attachment and others, capable of preventing or causing to cease an interference with a person ’ s privacy; in the event of urgency such measures may be ordered in urgent proceedings .” Article 1382 “Any act that causes damage to another shall render the person through whose fault the damage was caused liable to make reparation for it.” B. The Constitution of the Principality of Monaco 42. The relevant passages of Article 10 of the Constitution of 17 December 1962 of the Principality of Monaco ( amended by Law no. 1.249 of 2 April 2002) provide : “The succession to the Throne, opened by death or abdication, takes place by the direct and legitimate issue of the reigning prince, by order of primogeniture, with priority given to males within the same degree of kinship. In the absence of direct legitimate issue, the succession passes to the brothers and sisters of the reigning prince and their direct legitimate descendants, by order of primogeniture, with priority given to males within the same degree of kinship. If the heir who would have acceded by virtue of the preceding paragraphs is deceased or renounced the Throne before the succession became open, the succession passes to His own direct legitimate descendants by order of primogeniture, with priority given to males within the same degree of kinship. If the application of the preceding paragraphs does not fill the vacancy of the Throne, the succession passes to a collateral heir appointed by the Crown Council upon same advice of the Regency Council. The powers of the prince are temporarily held by the Regency Council. The Throne can only pass to a person holding Monegasque citizenship on the day the succession opens. ...” C. Relevant European texts 1. Resolution 1165 (1998) of the Parliamentary Assembly of the Council of Europe 43. The relevant passages of Resolution 1165 (1998) on the right to privacy, adopted by the Parliamentary Assembly of the Council of Europe on 26 June 1998, read as follows : “1. The Assembly recalls the current affairs debate it held on the right to privacy during its September 1997 session, a few weeks after the accident which cost the Princess of Wales her life. 2. On that occasion, some people called for the protection of privacy, and in particular that of public figures, to be reinforced at the European level by means of a convention, while others believed that privacy was sufficiently protected by national legislation and the European Convention on Human Rights, and that freedom of expression should not be jeopardised. 3. In order to explore the matter further, the Committee on Legal Affairs and Human Rights organised a hearing in Paris on 16 December 1997 with the participation of public figures or their representatives and the media. 4. The right to privacy, guaranteed by Article 8 of the European Convention on Human Rights, has already been defined by the Assembly in the declaration on mass communication media and human rights, contained within Resolution 428 (1970), as ‘ the right to live one ’ s own life with a minimum of interference ’. 5. In view of the new communication technologies which make it possible to store and use personal data, the right to control one ’ s own data should be added to this definition. 6. The Assembly is aware that personal privacy is often invaded, even in countries with specific legislation to protect it, as people ’ s private lives have become a highly lucrative commodity for certain sectors of the media. The victims are essentially public figures, since details of their private lives serve as a stimulus to sales. At the same time, public figures must recognise that the position they occupy in society – in many cases by choice – automatically entails increased pressure on their privacy. 7. Public figures are persons holding public office and/or using public resources and, more broadly speaking, all those who play a role in public life, whether in politics, the economy, the arts, the social sphere, sport or in any other domain. 8. It is often in the name of a one-sided interpretation of the right to freedom of expression, which is guaranteed in Article 10 of the European Convention on Human Rights, that the media invade people ’ s privacy, claiming that their readers are entitled to know everything about public figures. 9. Certain facts relating to the private lives of public figures, particularly politicians, may indeed be of interest to citizens, and it may therefore be legitimate for readers, who are also voters, to be informed of those facts. 10. It is therefore necessary to find a way of balancing the exercise of two fundamental rights, both of which are guaranteed in the European Convention on Human Rights: the right to respect for one ’ s private life and the right to freedom of expression. 11. The Assembly reaffirms the importance of every person ’ s right to privacy, and of the right to freedom of expression, as fundamental to a democratic society. These rights are neither absolute nor in any hierarchical order, since they are of equal value. 12. However, the Assembly points out that the right to privacy afforded by Article 8 of the European Convention on Human Rights should not only protect an individual against interference by public authorities, but also against interference by private persons or institutions, including the mass media. 13. The Assembly believes that, since all member states have now ratified the European Convention on Human Rights, and since many systems of national legislation comprise provisions guaranteeing this protection, there is no need to propose that a new convention guaranteeing the right to privacy should be adopted. 14. ...” 2. The Declaration of the Rights and Duties of Journalists 44. The Declaration of the Rights and Duties of Journalists, adopted in Munich on 24 and 25 November 1971 by the trade unions of journalists from the Member States of the European Community, was endorsed by the International Federation of Journalists at the Istanbul Congress in 1972. It reads, inter alia, as follows : “Preamble The right to information, to freedom of expression and criticism is one of the fundamental rights of man. All rights and duties of a journalist originate from this right of the public to be informed on events and opinions. The journalist ’ s responsibility towards the public excels any other responsibility, particularly towards employers and public authorities. The mission of information necessarily includes restrictions which journalists spontaneously impose on themselves. This is the object of the declaration of duties formulated below. A journalist however, can respect these duties while exercising his profession only if conditions of independence and professional dignity effectively exist. This is the object of the following declaration of rights. Declaration of duties The essential obligations of a journalist engaged in gathering, editing and commenting news are: 1. To respect truth whatever be the consequence to himself, because of the right of the public to know the truth; 2. To defend freedom of information, comment and criticism; 3. To report only on facts of which he knows the origin; not to suppress essential information nor alter texts and documents; 4. Not to use unfair methods to obtain news, photographs or documents; 5. To restrict himself to the respect of privacy; 6. To rectify any published information which is found to be inaccurate; 7. To observe professional secrecy and not to divulge the source of information obtained in confidence; 8. To regard as grave professional offences the following: plagiarism, calumny, slander, libel and unfounded accusations, the acceptance of bribe in any form in consideration of either publication or suppression of news; 9. Never to confuse the profession of a journalist with that of advertisements salesman or a propagandist and to refuse any direct or indirect orders from advertisers. 10. To resist every pressure and to accept editorial orders only from the responsible persons of the editorial staff. Every journalist worthy of that name deems it his duty faithfully to observe the principles stated above. Within the general law of each country, the journalist recognises, in professional matters, the jurisdiction of his colleagues only; he excludes every kind of interference by governments or others. Declaration of rights 1. Journalists claim free access to all information sources, and the right to freely inquire on all events conditioning public life. Therefore, secret of public or private affairs may be opposed only to journalists in exceptional cases and for clearly expressed motives; 2. The journalist has the right to refuse subordination to anything contrary to the general policy of the information organ to which he collaborates such as it has been laid down by writing and incorporated in his contract of employment, as well as any subordination not clearly implicated by this general policy; 3. A journalist cannot be compelled to perform a professional act or to express an opinion contrary to his convictions or his conscience; ... ” THE LAW I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 45. The applicants alleged that the judgment against them amounted to unjustified interference in the exercise of their right to freedom of information. They relied on Article 10 of the Convention, which reads as follows : “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” A. The Chamber judgment 46. The Chamber noted that the judgment against the applicants made no distinction between information which formed part of a debate on a matter of public interest and that which merely concerned details of the Prince ’ s private life. Accordingly, in spite of the margin of appreciation left to States in this matter, it held that there was no reasonable relationship of proportionality between, on the one hand, the restrictions imposed by the courts on the applicants ’ right to freedom of expression and, on the other, the legitimate aim pursued. It therefore concluded that there had been a violation of Article 10 of the Convention ( see the Chamber judgment, §§ 51 ‑ 75). B. The parties ’ submissions to the Grand Chamber 1. The applicants ’ submissions 47. The applicants submitted that the judgment against a news magazine for having published information that had already been disclosed in other media and for illustrating it with related photographs amounted to an interference in its freedom to impart information of public interest. They considered that this judgment was extremely serious and unprecedented, and that it had to be regarded as an excessive interference with its freedom of expression and information, with a clearly chilling effect. 48. The applicants did not dispute that the interference in question had had a lawful basis, namely Article 9 of the Civil Code, nor that it pursued a legitimate aim, namely “protection of the rights of others” with regard to the Prince ’ s right to private life and to his own image. Nonetheless, they expressed a reservation in this respect, and alleged that the domestic courts had interpreted in too broad a manner the concept of private life within the meaning of Article 9 of the Civil Code and Article 8 of the Convention. 49. The applicants considered that the right to respect for private life did admittedly have to be upheld, but that it was not absolute, especially when it clashed with the right to freedom of expression and information, and the rights of the other people concerned by the publication. They criticised the domestic courts for failing to balance the Prince ’ s rights against other rights which, they submitted, were of equal value: the rights of the mother, which they considered to be no less legitimate in a democratic society; the child ’ s right to be officially recognised; and the magazine ’ s right to impart information of public interest which was no longer confidential at the date of publication. 50. The applicants also considered that the impugned decisions had failed to make any distinction between ordinary citizens and public figures ( a fortiori politicians and Heads of State, who were inevitably exposed to media interest ), thus going against the Court ’ s case-law and current French case-law. In support of this argument, they submitted that the case-law developed by the domestic courts acknowledged the public ’ s right to information about facts relating to private life, and they cited by way of example several cases in which the domestic courts had reached their decisions on that basis. 51. The applicants further submitted, with regard to the necessity of the impugned interference, that any exception to a fundamental freedom must be interpreted restrictively, and that exceptions to freedom of expression could not therefore be punished disproportionately. They alleged that the right to respect for private life was not absolute, and argued that the decisions by the domestic courts in the present case did not correspond to a pressing social need, in that the courts had not carried out a thorough balancing exercise in respect of the conflicting rights in issue or taken account of the criteria established in the Court ’ s case-law. 52. In this connection they argued, inter alia, that, in a hereditary monarchy, information about the existence of an heir, born out of wedlock, who had not yet been officially recognised by his father, was a matter of public interest with regard both to the future of the monarchy and to the attitude of the Prince, a public figure. The question of his paternity concerned not only his own civil status – it was not without importance to know whether or not he had an illegitimate son and if so whether he had recognised him – but also the order of heirs or even possible successors to the throne, in view of the hereditary nature of the monarchy in Monaco and in the absence, at the relevant time, of any known heir. The applicants emphasised in this regard that the provisions of the Monegasque Constitution had been amended shortly before Prince Rainier ’ s death and that further amendments could not be ruled out. The information in question was also likely to enlighten the Prince ’ s subjects regarding his ethical conduct and his personal respect for the fundamental rights which he claimed for himself and which he advocated publicly and politically. 53. The applicants also argued that the Prince made use of public resources, some of which were allocated to providing for the future and the education of his son, which was a matter that directly affected Monegasque and French taxpayers. They also claimed that the German courts, called upon to examine a substantially similar dispute, had held that the information in question justified a debate on a matter of public interest. They further asserted that communication of the news to the public was all the more legitimate in that the Prince had ultimately recognised his son, in the context of a large-scale media operation. They added that by making a statement about the succession to the throne he had acknowledged that the news in issue was a matter of public concern. 54. The applicants further stated that the public profile of the Prince, head of the Monegasque State, was beyond doubt. As to the content of the report, they considered that it went beyond the sphere of the Prince ’ s private life, and extended to the private life of the child ’ s mother, who was free to express herself, and that of the child, who was entitled to official recognition. In this connection, they submitted that in a democratic society the wishes of one person, even a sovereign, could not confer privileges to the extent that they trespassed on the rights of others and, in particular acted as a “ bar to the claims of his son seeking to assert his existence and have his identity recognised”. 55. The applicants further emphasised that it was not contested that the article comprised information and photographs supplied by the child ’ s mother, who had herself contacted Paris Match with a view to obtaining official recognition for her son. They claimed that the impugned photographs had all been taken in a flat, with the full consent of the Prince, and they considered that they contained no intimate details or unflattering portrayals of any of the protagonists. The photographs showing the Prince in Ms Coste ’ s company had, they submitted, been taken in the context of official events, so the magazine could not be criticised for publishing them. Only photographs handed over by the child ’ s mother had been published, with a view to lending credence to her statements. Moreover, neither the veracity of the published information nor the conditions in which that information and the accompanying photographs had been given to the magazine had been challenged. The Nanterre TGI had therefore been wrong to describe the information as “mere rumours”. 56. The applicants also claimed that the principle of the free choice of the means of imparting information – the corollary of freedom to impart information – could not be contested without emptying that freedom of its substance. In that connection, they alleged that they had been free to illustrate the impugned article with relevant photographs. This had indeed been the case for the published photographs. With regard to the consequences of the article, the applicants denied that it could have disclosed anything that had not already been revealed to the public by the British, American, German and French press and audio - visual media and on the Internet. They therefore urged that the impact of the article be placed in perspective. They also argued that after the contested publication the Prince had officially acknowledged his paternity in a large-scale media operation, at the same time acknowledging the existence of another child. 57. The applicants thus argued that they had experienced an interference with their right to freedom of expression which, firstly, had not been “necessary”, in that it had not corresponded to a “pressing social need”, and which, secondly, had been disproportionate in its consequences to the legitimate aim pursued. They considered that only the Prince ’ s right to private life had been taken into account in assessing the alleged violation and the resulting damage. In addition, they considered that the penalties imposed had been very severe : in their view, a court-ordered publication was equivalent to expropriating a newspaper and eliminating a space used to exercise freedom of expression, and had the weight and effect of a public reprimand designed to discredit the magazine. 58. Lastly, the applicants argued that when the Court of Appeal and the Court of Cassation ruled on the case, the Prince had already confirmed the existence of a son born outside marriage, by means of an official statement and numerous press interviews. They criticised the domestic courts for failing to take account of that fact in assessing the extent of the alleged damage. They concluded that the publication in issue had been manifestly legitimate and that, in consequence, there had been no reasonable relationship of proportionality between the severe court judgments against them, together with the insertion of a court-ordered statement on the front cover of the magazine, and the aim pursued. 2. The Government ’ s submissions 59. After recapitulating the Court of Cassation ’ s case-law with regard to the protection of private life, the Government submitted, firstly, that an individual ’ s personal or family relations or their love life, pregnancy, illness, surgical operations, religious convictions, home and also right to control his or her own image had been considered as falling within the scope of private life. They also specified that only information relevant to the public ’ s right to be informed could be disclosed. Where the alleged interference concerned persons whose life or status as public figures made them well known, the case-law made a distinction on the basis of the type of information in question. 60. The Government emphasised in this respect that although the Court of Cassation had held that “ every person, whatever his rank, birth, fortune or present or future functions, [was] entitled to respect for his private life ”, it had nonetheless also validated the disclosure of information when this was necessary as a matter of public debate. 61. Having set out this domestic legal context, the Government did not dispute that the court judgment against the applicants amounted to interference in the exercise of their right to freedom of expression. They claimed, however, that this interference had been prescribed by law – a fact that the applicants, as professionals in the press field, could not, in the Government ’ s view, have failed to be aware of – and that it pursued a legitimate aim, namely protection of the Prince ’ s right to privacy and to protection of his image. 62. The Government also submitted that the domestic courts had complied with the Court ’ s case-law. In this connection, they argued that the impugned comments were to be examined in the light of the case as a whole and account taken of the content of the terms used and the context in which they were made. Referring to the margin of appreciation granted to the States in this area, they argued that in the area of freedom of expression, which implied a subjective approach, the national courts were best placed to classify the facts of a case, and that the Court ’ s supervision should not seek to substitute a new assessment of the facts for that of the national courts. In the present case, the domestic courts had carried out a careful analysis and sought to strike a balance between the protection of private life and that of freedom of expression. There was therefore nothing to justify a departure from the Court of Cassation ’ s assessment. 63. Before the Grand Chamber, the Government also submitted that in assessing the circumstances of the case it was unnecessary to take account of Ms Coste ’ s wish to publicise the identity of her child ’ s father in order to have the child recognised. In their opinion, if Paris Match wished to use Ms Coste ’ s interests in its defence, it ought to have summoned her to appear in the case before the domestic courts. The present case thus concerned solely a classic conflict between the rights and interests of an organ of the press relying on its right of expression and those of a person who had been the subject of a news article and who complained of a violation of his right to respect for his private life. 64. The Government considered that, in this case, there had been a pressing need to protect the Prince. They submitted that the impugned publication had not concerned a subject of public interest. They acknowledged that certain information concerning the Prince could be made public on account of his functions, but considered that the impugned disclosures, quite apart from the fact that they were particularly intimate, in no way affected the organisation of the Monegasque State. 65. The Government also considered that the Chamber had wrongly interpreted the concept of a contribution to a debate of public interest, and had opened the way for considerable legal uncertainty. In this regard, they argued that too wide an interpretation of this concept would reduce to almost nothing the scope of the Convention principle of protection of the private and family lives of public figures, and would open the way to repeated invasions of privacy and infringements of the right of public figures to control their own image, for exclusively commercial purposes. 66. Before the Grand Chamber, they submitted that the Court, in its judgment in Von Hannover v. Germany (no. 2) ([GC], nos. 40660/08 and 60641/08, ECHR 2012), had accepted a particularly wide definition of the concept of a debate of public interest. As legal commentators had also pointed out, that definition departed from the first Von Hannover judgment (cited above), and opened the way for publication of photographs and articles which breached the privacy of public figures, with a fleeting reference to a debate of public interest then appearing sufficient to justify such publications. In the Government ’ s opinion, were that interpretation to prevail, the concept of a debate of public interest, which, they argued, was intended to guarantee respect for the private life of public figures, would be reduced to an empty shell. 67. The Government considered that the fact that the Chamber had found that the article contained elements which related to the Prince ’ s private, or even intimate, life ought to lead the Grand Chamber to consider that the court judgment against the applicants had been justified. They claimed that the elements of private life set out in the article ought to take precedence and that the main, if not exclusive, purpose of the publication had been to satisfy the curiosity of a particular readership regarding details of the Prince ’ s private life. 68. Before the Grand Chamber, they also argued that the Chamber had wrongly held that the possible succession to the throne of the Principality of a son born outside marriage was “the core message of the article” : in fact, it had contained only two references to that matter, or eight lines out of the five hundred lines of text, covering four pages and accompanied by six pages of photographs, in addition to the photograph on the front cover. The Government reaffirmed that the fact that the Prince had a son born outside marriage, who had no official status, did not contribute to a debate of public interest. 69. Furthermore, while acknowledging that the German courts had dismissed the Prince ’ s claim when he brought proceedings against the weekly magazine Bunte for an article comparable to that published in Paris Match, the Government argued that the States Parties had different traditions in the area of respect by the media for private life, especially with regard to the private life of public figures. Thus, in France, the legislation and case-law were, they submitted, more protective of private life than in Germany or the United Kingdom. That being noted, the purpose of the Convention was not to harmonise national laws. The French courts had therefore been entitled to find, in contrast to the German courts, that the birth of the Prince ’ s son did not contribute to a debate of public interest: this was a reasonable position in reconciling the competing interests at stake. 70. The Government added that, even supposing that the Grand Chamber were to find that the birth in question involved a debate on a matter of public concern, the fact that the impugned article contained multiple intimate details of his life nonetheless justified that, in the instant case, protection of privacy took precedence over freedom of expression. 71. They considered that the publication of the article and of several photographs showing the Prince with his son had been particularly intrusive with regard to the Prince ’ s private life. Moreover, the article had contained disclosures concerning the most intimate details of the Prince ’ s life. Furthermore, the Prince had consented to photographs being taken of him with his son for private use, and not for publication. In this regard, the Government criticised the applicants for failing to filter the information provided by Ms Coste in order to exclude the intimate details concerning the Prince, choosing instead to publish those intimate details and thus failing in their duties and responsibilities. 72. The Government further stated that, in using the photographs and captions, the magazine had given this “scoop” a sensationalist spin. They added that the applicants could not rely on events which had occurred after publication, namely the Prince ’ s statement on the matter, in order to evade their responsibility. 73. Lastly, they explained that Paris Match was a profit-making newspaper which frequently exploited individuals ’ private lives in order to satisfy the curiosity of its readers, and that this commercial exploitation was linked to the more or less scandalous nature of its disclosures. In the present case, more than a million copies of the issue of Paris Match in question had been printed. In consequence, the Government considered that the interference in issue in the present case had been necessary and complied with the obligation of proportionality arising from the Court ’ s case-law, and that the amount of damages awarded ought, in their view, to be set against the magazine ’ s revenues. C. Third - party observations 1. Observations of the Government of Monaco 74. The Government of Monaco considered that the Chamber judgment raised a serious issue regarding the interpretation and application of Articles 8 and 10 of the Convention. In this connection, they submitted that, in practice, the criterion of “contribution to a debate of public interest”, however pertinent, guaranteed the requisite balance between freedom of expression and the protection of private life only when it was correctly applied and not subverted. In the present case, the considerations relating to the paternity of a child who was clearly excluded from succession to the throne could not fall within the scope of a debate of public interest. According to the Monegasque Government, the main – if not the sole – purpose of the article had been to satisfy the curiosity of a certain readership with regard to the private life of public figures. Moreover, it was to be feared that the approach taken in the Chamber judgment would result in future in too broad an interpretation of the justification of a contribution to a debate of public interest, which would seriously undermine the protection of private life which public figures were legitimately entitled to expect, particularly those exercising political functions. 75. The Government of Monaco also submitted that the category of “public figures” included a very particular sub - group of “political figures”, who were even more strongly exposed to media interest. They argued that it was important to ensure that press articles about “political figures” did not, in practice, come to enjoy the virtually irrebuttable presumption that they contributed per se to a debate of public interest. Yet the Chamber judgment created a grave risk in this regard, namely that the protection afforded to political figures ’ private lives would henceforth be severely restricted, or indeed reduced to nought. It was all the more important to address this problem in view of the fact that the interpretation proposed by the Court would be expected to serve as a reference for each High Contracting Party. 2. Observations of Media Legal Defence Initiative ( “ MLDI ” ) 76. The NGO MLDI considered that the issue of succession to the throne in a hereditary monarchy was a matter of public concern. It subscribed to the Chamber ’ s interpretation of this concept. Noting that a broad approach to the concept of a debate of public interest already existed in Germany and Belgium, it argued that a degree of latitude ought to be awarded to journalists and editors in exercising their professional judgment with regard to the details to be included in putting forward the essence of a message, especially where it was clear that it dealt with a matter of public interest. Indeed, such latitude was recognised in the United Kingdom and in other member States of the Council of Europe. 77. MLDI submitted that in a constitutional monarchy the Head of State carried out a fundamental representative role and exercised powers that could include making public comments or expressing views privately to politicians on a wide range of matters. Moreover, in a constitutional monarchy questions of succession were matters of legitimate public scrutiny, and this had implications for the latitude which must be afforded to the press to report on such matters and the right of the public to be informed, where appropriate, in respect of them. 78. MLDI also considered that the sanction imposed in the present case had been particularly severe. In the NGO ’ s view, the obligation to publish a statement had the potential not only to harm the reputation of the magazine, but also to impact substantially on its future sales. Furthermore, and in the light of the Court ’ s case-law, it considered that the amount of damages awarded had to be regarded as a form of censure. D. The Court ’ s assessment 79. The Court notes that it is common ground between the parties that the impugned court judgment constituted an interference with the applicants ’ exercise of their right to freedom of expression, protected by Article 10 of the Convention. Nor is it contested that the interference was prescribed by law, in that it was based on Articles 9 and 1382 of the Civil Code, and pursued a legitimate aim, namely, the protection of the rights of others within the meaning of Article 10 § 2 of the Convention – in the present case the Prince ’ s right to private life and to protection of his own image. The Court agrees with this assessment. 80. However, the applicants expressed reservations concerning the lawfulness and legitimacy of the interference in question, considering that the national courts ’ interpretation of the concept of private life was too broad, and complained that there had been no thorough weighing up of the competing interests involved ( see paragraphs 48 - 50 above ). That being stated, the Court considers that these arguments concern the assessment of whether the interference was necessary, and are not such as to call into question its lawfulness or the legitimate aim. 81. The dispute in the instant case therefore relates to the question whether the interference was “necessary in a democratic society”. 1. The general principles established in the Court ’ s case-law 82. Having been required on numerous occasions to consider disputes requiring an examination of the fair balance to be struck between the right to respect for private life and the right to freedom of expression, the Court has developed abundant case-law in this area. Having regard to the circumstances of the present case, it considers it useful to reiterate the general principles relating to each of the rights in question, and then to set out the criteria for balancing those rights. ( a ) General principles concerning the right to respect for private life 83. The Court reiterates that the notion of private life is a broad concept, not susceptible to exhaustive definition. It extends to aspects relating to personal identity, such as a person ’ s name, photograph, or physical and moral integrity. This concept also includes the right to live privately, away from unwanted attention (see Smirnova v. Russia, nos. 46133/99 and 48183/99, § 95, ECHR 2003 ‑ IX). The guarantee afforded by Article 8 of the Convention in this regard is primarily intended to ensure the development, without outside interference, of the personality of each individual in his or her relations with other human beings. There is thus a zone of interaction of a person with others, even in a public context, which may fall within the scope of private life. 84. Moreover, whilst a private individual unknown to the public may claim particular protection of his or her right to private life, the same is not true of public figures (see Minelli v. Switzerland ( dec. ), no. 14991/02, 14 June 2005). Nevertheless, in certain circumstances, even where a person is known to the general public, he or she may rely on a “legitimate expectation” of protection of and respect for his or her private life (see, inter alia, Von Hannover (no. 2), cited above, § 97 ). 85. Publication of a photograph may thus interfere with a person ’ s private life even where that person is a public figure ( ibid., § 95). The Court has held on numerous occasions that a photograph may contain very personal or even intimate “information” about an individual or his or her family ( ibid., § 103). It has therefore recognised every person ’ s right to protection of his or her own image, emphasising that a person ’ s image constitutes one of the chief attributes of his or her personality, as it reveals the person ’ s unique characteristics and distinguishes the person from his or her peers. The right to the protection of one ’ s image is thus one of the essential components of personal development. It mainly presupposes the individual ’ s right to control the use of that image, including the right to refuse publication thereof ( ibid., § 96). 86. In determining whether or not the publication of a photograph interferes with an applicant ’ s right to respect for his or her private life, the Court takes account of the manner in which the information or photograph was obtained. In particular, it stresses the importance of obtaining the consent of the persons concerned, and the more or less strong sense of intrusion caused by a photograph (see Von Hannover v. Germany, no. 59320/00, ECHR 2004 ‑ VI, § 5 9; Gurgenidze v. Georgia, no. 71678/01, §§ 55-60, 17 October 2006; and Hachette Filipacchi Associés v. France, no. 71111/01, § 48, 14 June 2007). In this connection, the Court has had occasion to note that photographs appearing in the “sensationalist” press or in “romance” magazines, which generally aim to satisfy the public ’ s curiosity regarding the details of a person ’ s strictly private life (see Société Prisma Presse v. France ( dec. ), no. 66910/01, 1 July 2003; Société Prisma Presse v. France ( dec. ), no. 71612/01, 1 July 2003; and Hachette Filipacchi Associés v. France ( ICI PARIS ), no. 12268/03, § 40, 23 July 2009), are often obtained in a climate of continual harassment which may induce in the person concerned a very strong sense of intrusion into their private life or even of persecution (see Von Hannover, cited above, § 59). Another factor in the Court ’ s assessment is the purpose for which a photograph was used and how it could be used subsequently (see Reklos and Davourlis v. Greece, no. 1234/05, § 42, 15 January 2009, and Hachette Filipacchi Associés ( ICI PARIS ), cited above, § 52). 87. However, these considerations are not exhaustive. Other criteria may be taken into account depending on the particular circumstances of a given case. Here, the Court emphasises the importance of assessing the seriousness of the intrusion into private life and the consequences of publication of the photograph for the person concerned (see Gurgenidze, cited above, § 41). ( b ) General principles concerning the right to freedom of expression 88. Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual ’ s self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to information or ideas that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no “ democratic society ”. As enshrined in Article 10, freedom of expression is subject to exceptions, which must, however, be construed strictly, and the need for any restrictions must be established convincingly (see Handyside v. the United Kingdom, 7 December 1976, § 49, Series A no. 24, and, among other authorities, Lindon, Otchakovsky -Laurens and July v. France [GC], nos. 21279/02 and 36448/02, § 45, ECHR 2007 ‑ IV, and Von Hannover (no. 2), cited above, § 101). 89. Although the press must not overstep certain bounds, regarding in particular protection of the reputation and rights of others, its task is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest. Thus, the task of imparting information necessarily includes “duties and responsibilities”, as well as limits which the press must impose on itself spontaneously (see Mater v. Turkey, no. 54997/08, § 55, 16 July 2013). Not only does the press have the task of imparting such information and ideas; the public also has a right to receive them. Were it otherwise, the press would be unable to play its vital role of “public watchdog” (see Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, §§ 59 and 62, ECHR 1999 ‑ III; Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, § 71, ECHR 2004 ‑ XI; and Von Hannover (no. 2), cited above, § 102). Furthermore, it is not for the Court, any more than it is for the national courts, to substitute its own views for those of the press as to what techniques of reporting should be adopted in a particular case (see Jersild v. Denmark, 23 September 1994, § 31, Series A no. 298, and Stoll v. Switzerland [GC], no. 69698/01, § 146, ECHR 2007 ‑ V). Freedom of expression includes the publication of photographs. This is nonetheless an area in which the protection of the rights and reputation of others takes on particular importance, as the photographs may contain very personal or even intimate information about an individual or his or her family ( see Von Hannover (no. 2), cited above, § 103). Lastly, although the publication of news about the private life of public figures is generally for the purposes of entertainment rather than education, it contributes to the variety of information available to the public and undoubtedly benefits from the protection of Article 10 of the Convention. However, such protection may cede to the requirements of Article 8 where the information at stake is of a private and intimate nature and there is no public interest in its dissemination (see Mosley v. the United Kingdom, no. 48009/08, § 131, 10 May 2011). ( c ) General principles concerning the margin of appreciation and balancing of rights 90. The choice of the means calculated to secure compliance with Article 8 of the Convention in the sphere of the relations of individuals between themselves is in principle a matter that falls within the Contracting States ’ margin of appreciation, whether the obligations on the State are positive or negative (see Von Hannover (no. 2), cited above, § 104, with further references ). Likewise, under Article 10 of the Convention, the Contracting States have a certain margin of appreciation in assessing whether and to what extent an interference with the freedom of expression protected by this provision is necessary (ibid.). However, this margin goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those delivered by an independent court. In exercising its supervisory function, the Court ’ s task is not to take the place of the national courts, but rather to review, in the light of the case as a whole, whether the decisions they have taken pursuant to their power of appreciation are compatible with the provisions of the Convention relied on (ibid. , § 105, with further references ). 91. In cases which require the right to respect for private life to be balanced against the right to freedom of expression, the Court considers that the outcome of the application should not, in theory, vary according to whether it has been lodged with the Court under Article 8 of the Convention by the person who was the subject of the news report, or under Article 10 by the publisher. Indeed, as a matter of principle these rights deserve equal respect ( ibid., § 106). Accordingly, the margin of appreciation should in theory be the same in both cases. 92. According to the Court ’ s established case-law, the test of “necessity in a democratic society” requires the Court to determine whether the interference complained of corresponded to a “pressing social need”, whether it was proportionate to the legitimate aim pursued and whether the reasons given by the national authorities to justify it are relevant and sufficient (see The Sunday Times v. the United Kingdom (no. 1), 26 April 1979, § 62, Series A no. 30). The margin of appreciation left to the national authorities in assessing whether such a “need” exists and what measures should be adopted to deal with it is not, however, unlimited but goes hand in hand with European supervision by the Court, whose task it is to give a final ruling on whether a restriction is reconcilable with freedom of expression as protected by Article 10. Where the balancing exercise has been undertaken by the national authorities in conformity with the criteria laid down in the Court ’ s case-law, the Court would require strong reasons to substitute its view for that of the domestic courts ( see Von Hannover (no. 2), cited above, § 107). 93. The Court has already had occasion to lay down the relevant principles which must guide its assessment in this area. It has thus identified a number of criteria in the context of balancing the competing rights (see Von Hannover (no. 2), cited above, §§ 109-13, and Axel Springer AG v. Germany [GC], no. 39954/08, §§ 90-95, 7 February 2012). The relevant criteria thus defined are: contribution to a debate of public interest, the degree of notoriety of the person affected, the subject of the news report, the prior conduct of the person concerned, the content, form and consequences of the publication, and, where appropriate, the circumstances in which the photographs were taken. Where it examines an application lodged under Article 10, the Court will also examine the way in which the information was obtained and its veracity, and the gravity of the penalty imposed on the journalists or publishers ( ibid.). The Court considers that the criteria thus defined may be transposed to the present case. 2. Application of these principles to the present case 94. The Court notes that the impugned article consisted of an interview with Ms Coste, who disclosed that the Prince was the father of her son. The article also provided details about the circumstances in which she had met the Prince, their intimate relationship, their mutual feelings, his reaction to the news of her pregnancy and the manner in which he behaved with the child. It was illustrated by photographs of the Prince holding the child or accompanied by Ms Coste, in both private and public contexts ( see paragraphs 14 ‑ 16 above ). 95. In this regard and in view of the parties ’ submissions ( see paragraphs 53 and 69 above ) concerning the conclusions reached by the German courts in respect of substantially similar articles that had been published in Bunte, the Court finds it appropriate to make the preliminary observation that its role in this case consists primarily in verifying whether the domestic courts whose decisions are contested by the applicants struck a fair balance between the rights at stake and ruled in accordance with the criteria established by it for that purpose ( criteria which have been reiterated in paragraph 93 above ). Thus, its assessment of the circumstances of the present case cannot be based on a comparative examination of the decisions reached by the French and German courts respectively with regard to the information disclosed. ( a ) The issue of the contribution to a debate of public interest 96. The Court reiterates that there is little scope under Article 10 § 2 of the Convention for restrictions on freedom of expression when a matter of public interest is at stake ( see, inter alia, Wingrove v. the United Kingdom, 25 November 1996, § 58, Reports of Judgments and Decisions 1996 ‑ V). The margin of appreciation of States is reduced where a debate on a matter of public interest is concerned ( see Editions Plon v. France, no. 58148/00, § 44, ECHR 2004 ‑ IV). In the circumstances of the present case, it is therefore essential to determine at the outset whether the content of the interview disclosing the Prince ’ s fatherhood could be understood as constituting information such as to “contribute to a debate on a matter of public interest”. ( i ) The concept of “contribution to a debate of public interest” 97. The Government argued that too wide an interpretation of this concept would be liable to nullify any protection of the private life of public figures ( see paragraphs 65 - 66 above ). In this regard, the Court emphasises that the definition of what might constitute a subject of public interest will depend on the circumstances of each case ( see Von Hannover (no. 2), cited above, § 109, and Axel Springer AG, cited above, § 90). 98. It also reiterates that it has already had occasion to rule on different situations and has concluded that, although related to private life, they could legitimately be brought to the public ’ s attention. In those cases, it took into account a number of factors in ascertaining whether a publication disclosing elements of private life also concerned a question of public interest. Relevant factors include the importance of the question for the public and the nature of the information disclosed ( see Von Hannover (no. 2), cited above, § 109, and, in the context of the right to reputation, Axel Springer AG, cited above, § 90, with further references ). 99. In particular, it has accepted in the past that aspects of private life may be disclosed on account of the interest that the public may have in being informed about certain personality traits of the public figure concerned ( see Ojala and Etukeno Oy v. Finland, no. 69939/10, §§ 54 ‑ 55, 14 January 2014, and Ruusunen v. Finland, no. 73579/10, §§ 49 ‑ 50, 14 January 2014 in which the Court held that the date and the manner in which a former Finnish prime minister had entered a romantic relationship and the speed with which it had developed could be of public interest, in that it raised the question of whether he had been dishonest and lacked judgment in that regard ). It remains the case, however, that a person ’ s romantic relationships are, in principle, a strictly private matter. It follows that, in general, details concerning a couple ’ s sex life or intimate relations should only be permitted to be brought to the public ’ s knowledge without prior consent in exceptional circumstances. 100. The Court has also emphasised on numerous occasions that, although the public has a right to be informed, and this is an essential right in a democratic society which, in certain special circumstances, can even extend to aspects of the private life of public figures, articles aimed solely at satisfying the curiosity of a particular readership regarding the details of a person ’ s private life, however well known that person might be, cannot be deemed to contribute to any debate of general interest to society ( see Von Hannover, cited above, § 65; MGN Limited v. the United Kingdom, no. 39401/04, § 143, 18 January 2011; and Alkaya v. Turkey, no. 42811/06, § 35, 9 October 2012). 101. Thus, an article about the alleged extramarital relationships of high-profile public figures who were senior State officials contributed only to the propagation of rumours, serving merely to satisfy the curiosity of a certain readership ( see Standard Verlags GmbH v. Austria (no. 2), no. 21277/05, § 52, 4 June 2009). Equally, the publication of photographs showing scenes from the daily life of a princess who exercised no official functions was aimed merely at satisfying the curiosity of a particular readership ( see Von Hannover, cited above, § 65, with further references ). The Court reiterates in this connection that the public interest cannot be reduced to the public ’ s thirst for information about the private life of others, or to the reader ’ s wish for sensationalism or even voyeurism. 102. In order to ascertain whether a publication concerning an individual ’ s private life is not intended purely to satisfy the curiosity of a certain readership, but also relates to a subject of general importance, it is necessary to assess the publication as a whole and to examine whether, having regard to the context in which it appears (see Tønsbergs Blad A.S. and Haukom v. Norway, no. 510/04, § 87, 1 March 2007; Björk Eiðsdóttir v. Iceland, no. 46443/09, § 67, 10 July 2012; and Erla Hlynsdόttir v. Iceland, no. 43380/10, § 64, 10 July 2012), it relates to a question of public interest. 103. In this connection, the Court specifies that the public interest relates to matters which affect the public to such an extent that it may legitimately take an interest in them, which attract its attention or which concern it to a significant degree ( see The Sunday Times, cited above, § 66), especially in that they affect the well-being of citizens or the life of the community ( see Barthold v. Germany, 25 March 1985, § 58, Series A no. 90). This is also the case with regard to matters which are capable of giving rise to considerable controversy, which concern an important social issue ( see, for example, Erla Hlynsdόttir, cited above, § 64), or which involve a problem that the public would have an interest in being informed about ( see Tønsbergs Blad A.S. and Haukom, cited above, § 87). ( ii ) Contribution of the impugned article to a debate of public interest 104. In the present case, the domestic courts found a “lack of any topical news item” and “any debate on a matter of public interest” in the impugned publication, given that the child was barred from succession to the throne, a situation that “the company ’ s pleadings did not claim to be a subject of debate in French or Monegasque society or of examination in the article”. They thus held that the impugned article amounted to an invasion of the Prince ’ s private life, which could not in any way be justified by the “requirements of current - affairs reporting”, which they held to be “inexistent” ( see paragraphs 27 and 36 above ). 105. For its part, the Court considers that, in order to determine whether the content of the interview disclosing the Prince ’ s fatherhood could be understood as constituting information on a question of public interest, it is necessary to assess the article as a whole, as well as the substance of the information that is disclosed in it. In this connection and having regard to the observations of the domestic courts (see paragraphs 20, 27 and 36 above) and of the Government (see paragraph 70 above), the Court accepts that the interview with Ms Coste contained numerous details about the Prince ’ s private life and his real or supposed feelings which, in the circumstances of the case, are not directly related to a debate of public interest. 106. Nonetheless, the Court considers that the subject of the article cannot be regarded as disclosing only the relationship between Ms Coste and the Prince, unless the scope of the concept of public interest is greatly restricted. There is no doubt that the publication, taken as a whole and in context, and analysed in the light of the above-mentioned case-law precedents (see paragraphs 98 - 103 above), also concerned a matter of public interest. 107. In this regard, the Court considers it useful at the outset to point out that although a birth is an event of an intimate nature, it does not come solely within the private sphere of the persons concerned by it, but also falls within the public sphere, since it is in principle accompanied by a public statement (the civil-status document) and the establishment of a legal parent-child relationship. Thus, the purely private and family interest represented by a person ’ s descent is supplemented by a public aspect, related to the social and legal structure of kinship. A news report about a birth cannot therefore be considered, in itself, as a disclosure concerning exclusively the details of the private life of others, intended merely to satisfy the public ’ s curiosity. 108. Further, having regard to the specific features of the Principality of Monaco, in which “the links between the sovereign and the Monegasque Family are very close” and “the monarchy ... is based on the union between the Prince and the national community” [1], the Court considers that there is an undeniable public -interest value – at least for the subjects of the Principality – in the existence of a child (particularly a son) of the Prince, who was known at the relevant time as being single and childless. The fact that the Prince ’ s son was born out of wedlock is irrelevant in this regard. At the material time this child ’ s birth was not without possible dynastic and financial implications: the Prince was still unmarried and the question of legitimation by marriage could be raised, even if such an outcome was improbable. 109. Indeed, the consequences of the birth on the succession were mentioned in the article, which related the warning attributed to the Prince ’ s adviser, who allegedly said: “ Do you realise that, if it ’ s a boy, they ’ ll use that to prevent Albert acceding to the throne, and the child will be able to claim the throne. ” They were also evident in Ms Coste ’ s remarks when she stated: “ I didn ’ t want him to grow up like Mazarine ... I thought only about that, and not for a second about the fact that he represented a potential heir. ” Thus, reference was also made to the reasons which may have incited the Prince to refuse to recognise his paternity officially and to prefer to keep it secret. In addition, through Ms Coste ’ s comments stating that she was “afraid for [her] son ’ s psychological health” and wished him “to grow up normally, with a father”, the article also touched on the child ’ s best interests in having the father-child relationship, an important aspect of his personal identity, officially established. 110. At this stage, the Court reiterates, having regard to the Government ’ s argument that the article contained only a few lines on the issue of the child ’ s status as a potential heir ( see paragraph 68 above ), that the only decisive question is whether a news report is capable of contributing to a debate of public interest, and not whether it achieves this objective in full ( see Haldimann and Others v. Switzerland, no. 21830/09, § 57, ECHR 2015 ). It notes that, for an article to contribute to a debate of public interest, it is not necessary that it be devoted entirely to that; it may be enough for the article to be concerned with that debate and to contain one or several elements for that purpose ( see Lillo-Stenberg and Sæther v. Norway, no. 13258/09, § 37, 16 January 2014; Ojala and Etukeno Oy, cited above, § 54; and Ruusunen, cited above, § 49). 111. In the present case, the impugned information was not without political import, and could arouse the interest of the public with regard to the rules of succession in force in the Principality (which prevented children born outside marriage from succeeding to the throne). Likewise, the attitude of the Prince, who wished to keep his paternity a secret and refused to acknowledge it publicly (see paragraphs 25 and 27 above), could, in a hereditary monarchy whose future is intrinsically linked to the existence of descendants, also be of concern to the public. This was equally true with regard to his behaviour in respect of the child ’ s mother – who was unable to obtain either the notarial deed of recognition of her son, or its transcription into the register of births, marriages and deaths ( see paragraph 17 above ) – and the child himself: this information could provide insights into the Prince ’ s personality, particularly with regard to the way in which he approached and assumed his responsibilities. 112. In this context, it is important to reiterate the symbolic role of a hereditary monarchy. In such a monarchy, the Prince embodies the unity of the nation. It follows that certain events affecting the members of the ruling family, while they are part of the latter ’ s private lives, are also part of contemporary history. This was the Court ’ s conclusion, in particular, with regard to the illness of Prince Rainier III (see Von Hannover (no. 2), cited above, §§ 38 and 117). In the Court ’ s opinion, this is also the case with regard to the birth of a child, even one born out of wedlock, especially since, at the date of the impugned events, the child in question appeared to be the Prince ’ s only descendant. In a constitutional hereditary monarchy, the person of the Prince and his direct line are also representative of the continuity of the State. 113. Consequently, the Court considers that, although the impugned article admittedly contained numerous details which concerned solely private or even intimate details of the Prince ’ s life, it was also intended to contribute to a debate on a matter of public interest ( see paragraphs 105 - 12 above ), as submitted by the applicants both before the domestic courts and before the Court ( see paragraphs 30 - 33 and 52 - 53 above ). 114. Having regard to the domestic courts ’ conclusions in this regard (see paragraph 104 above), the Court considers it useful to emphasise that the press ’ s contribution to a debate of public interest cannot be limited merely to current events or pre-existing debates. Admittedly, the press is a vector for disseminating debates on matters of public interest, but it also has the role of revealing and bringing to the public ’ s attention information capable of eliciting such interest and of giving rise to such a debate within society. Moreover, in view of the articles published in the Daily Mail and in Bunte ( see paragraphs 9 and 11 above ), the Court notes that the child ’ s status as a potential heir was already a matter of public discussion. 115. Accordingly, it considers that the national courts ought to have assessed the publication as a whole in order to determine its subject matter accurately, rather than examining the remarks concerning the Prince ’ s private life out of their context. In the event, however, they refused to take into consideration the interest that the article ’ s central message – namely the existence of a child who had been fathered by the Prince – could have for the public, and instead concentrated on the details provided by Ms Coste about the couple ’ s intimate relationship. In so doing, they deprived the public -interest justification relied upon by the applicants of any effectiveness. 116. In this case, however, having regard to the nature of the information in issue, the Court finds no reason to doubt that, in publishing Ms Coste ’ s account, the applicants could be understood as having contributed to the coverage of a subject of public interest. ( b ) How well known is the person concerned and what is the subject of the news report? ( i ) Consequences of the classification as a “public figure” 117. The Court reiterates that the role or function of the person concerned and the nature of the activities that are the subject of the news report and/or photograph constitute another important criterion to be taken into consideration ( see Von Hannover (no. 2), cited above, § 110, and Axel Springer AG, cited above, § 91). The extent to which an individual has a public profile or is well known influences the protection that may be afforded to his or her private life. Thus, the Court has acknowledged on numerous occasions that the public was entitled to be informed about certain aspects of the private life of public figures (see, inter alia, Karhuvaara and Iltalehti v. Finland, no. 53678/00, § 45, ECHR 2004 ‑ X). 118. It is therefore necessary to distinguish between private individuals and persons acting in a public context, as political figures or public figures. A fundamental distinction needs to be made between reporting details of the private life of an individual and reporting facts capable of contributing to a debate in a democratic society, relating to politicians in the exercise of their official functions for example ( see Von Hannover, cited above, § 63, and Standard Verlags GmbH and Krawagna -Pfeifer v. Austria, no. 19710/02, § 47, 2 November 2006). 119. Thus, depending on whether or not he or she is vested with official functions, an individual will enjoy a more or less restricted right to his or her intimacy : in this regard, the right of public figures to keep their private life secret is, in principle, wider where they do not hold any official functions (even if, as members of a ruling family, they represent that family at certain events; see Von Hannover, cited above, §§ 76-77) and is more restricted where they do hold such a function ( see, for example, Lingens v. Austria, 8 July 1986, § 42, Series A no. 103, and Ojala and Etukeno Oy, cited above, § 52). 120. The fact of exercising a public function or of aspiring to political office necessarily exposes an individual to the attention of his or her fellow citizens, including in areas that come within one ’ s private life. Accordingly, certain private actions by public figures cannot be regarded as such, given their potential impact in view of the role played by those persons on the political or social scene and the public ’ s resultant interest in being informed of them. The Court subscribes to the analysis of the Parliamentary Assembly of the Council of Europe, finding that “ public figures must recognise that the position they occupy in society – in many cases by choice – automatically entails increased pressure on their privacy” ( point 6 of Resolution 1165 (1998), see paragraph 43 above). 121. Thus, the Court has found in particular that politicians inevitably and knowingly lay themselves open to close scrutiny of their every word and deed by both journalists and the public at large (see, inter alia, Lingens, cited above, § 42). Furthermore, this principle applies not only to politicians, but to every person who is part of the public sphere, whether through their actions (see, to this effect, Krone Verlag GmbH & Co KG v. Austria, no. 34315/96, § 37, 26 February 2002, and News Verlags GmbH & Co.KG v. Austria, no. 31457/96, § 54, ECHR 2000 ‑ I) or their position (see Verlagsgruppe News GmbH v. Austria (no. 2), no. 10520/02, § 36, 14 December 2006). 122. Nevertheless, in certain circumstances, even where a person is known to the general public, he or she may rely on a “legitimate expectation” of protection of and respect for his or her private life (see, inter alia, Von Hannover (no. 2), cited above, § 97). Thus, the fact that an individual belongs to the category of public figures cannot in any way, even in the case of persons exercising official functions, authorise the media to violate the professional and ethical principles which must govern their actions, or legitimise intrusions into private life. 123. It follows that an individual ’ s celebrity or functions cannot under any circumstances justify hounding by the media or the publication of photographs obtained through fraudulent or clandestine operations (see, with regard to photographs taken using a telephoto lens and without the knowledge of the persons concerned, Von Hannover, cited above, § 68) or those portraying details of an individual ’ s private life and representing an intrusion into their intimacy (see, with regard to the publication of photographs relating to an alleged adulterous relationship, Campmany and Lopez Galiacho Perona v. Spain ( dec. ), no. 54224/00, ECHR 2000 ‑ XII). 124. In the present case, the Court notes that the Prince is a person who, through his birth as a member of a ruling family and his public functions, both political and representative, as Head of State, is undeniably a prominent public figure. The domestic courts ought therefore to have considered the extent to which this prominence and those public functions were capable of influencing the protection which could be afforded to his private life. Yet they refrained from including this circumstance in their assessment of the facts submitted for their examination. Thus, although it reiterated that an exception could be made to the principle of protection of private life whenever the facts disclosed could give rise to a debate on account of their impact given the status or function of the person concerned ( see paragraph 26 above ), the Versailles Court of Appeal drew no conclusion from that consideration in the present case. Equally, the Court of Cassation merely stated, in a general manner, that “every person, whatever his rank, birth, fortune or present or future functions, [was] entitled to respect for his private life” ( see paragraph 36 above ). 125. Indeed, given that the expectation of protection of private life may be reduced on account of the public functions exercised, the Court considers that, in order to ensure a fair balancing of the interests at stake, the domestic courts, in assessing the facts submitted for their examination, ought to have taken into account the potential impact of the Prince ’ s status as Head of State, and to have attempted, in that context, to determine the parts of the impugned article that belonged to the strictly private domain and what fell within the public sphere. ( ii ) The subject of the publication 126. The Court observes at the outset that the impugned publication admittedly concerned the sphere of the Prince ’ s private life, in that it described his love life and his relationship with his son. Nonetheless, referring to its previous findings ( see paragraphs 106 - 14 above ), it considers that the essential element of the information contained in the article – the child ’ s existence – went beyond the private sphere, given the hereditary nature of the Prince ’ s functions as the Monegasque Head of State. Further, given that the Prince had appeared on several occasions in public alongside Ms Coste (see paragraphs 14 and 16 above), the Court considers that the existence of his relationship with her was no longer purely a matter concerning his private life. 127. The Court would then emphasise that the Prince ’ s private life was not the sole subject of the article, but that it also concerned the private life of Ms Coste and her son, over whom Ms Coste alone had parental responsibility. Thus, it also contained details about the interviewee ’ s pregnancy, her own feelings, the birth of her son, a health problem suffered by the child and their life together ( see paragraph 14 above ). These were elements relating to Ms Coste ’ s private life, in respect of which she was certainly not bound to silence and was free to communicate. In this regard, the Court cannot ignore the fact that the disputed article was a means of expression for the interviewee and her son. 128. In addition, in securing the impugned publication, Ms Coste was motivated by a personal interest, namely obtaining official recognition for her son, as is clearly reflected in the article ( see paragraphs 14 and 15 above ). The interview thus raised a question of public interest, but also concerned competing private interests : that of Ms Coste in securing recognition for her son, which was why she had contacted the media ( see paragraph 17 above ), that of the child in having his paternity established and that of the Prince in keeping that paternity secret. 129. The Court nonetheless agrees that, as the Government have submitted ( see paragraph 63 above ), Ms Coste ’ s right to freedom of expression for herself and her son is not directly in issue in the present case, given that Ms Coste was not a party to the proceedings before the domestic courts and is not a party to the proceedings before the Court. It emphasises, however, that the combination of elements relating to Ms Coste ’ s private life and to that of the Prince had to be taken into account in assessing the protection due to him. ( c ) Prior conduct of the person concerned 130. The Court notes that neither the domestic courts nor the parties commented on the Prince ’ s prior conduct. In the circumstances of the case, it considers that, short of speculating, the material in the case file is not in itself sufficient to enable it to take cognisance of or examine the Prince ’ s previous conduct with regard to the media. Moreover, the mere fact of having cooperated with the press on previous occasions cannot serve as an argument for depriving a person discussed in an article of all protection (see Egeland and Hanseid v. Norway, no. 34438/04, § 62, 16 April 2009). An individual ’ s alleged or real previous tolerance or accommodation with regard to publications touching on his or her private life does not necessarily deprive the person concerned of the right to privacy. ( d ) Method of obtaining the information and its veracity 131. The Court emphasises at the outset the importance that it attaches to journalists ’ assumption of their duties and responsibilities, and to the ethical principles governing their profession. In this connection, it reiterates that Article 10 protects journalists ’ right to divulge information on issues of general interest subject to the proviso that they are acting in good faith and on an accurate factual basis and that they provide “reliable and precise” information in accordance with the ethics of journalism ( see Fressoz and Roire v. France [GC], no. 29183/95, § 54, ECHR 1999 ‑ I). 132. The fairness of the means used to obtain information and reproduce it for the public and the respect shown for the person who is the subject of the news report ( see Egeland and Hanseid, cited above, § 61 ) are also essential criteria to be taken into account. The reductive and truncated nature of an article, where it is liable to mislead the reader, is therefore likely to detract considerably from the importance of the said article ’ s contribution to a debate of public interest ( see Stoll, cited above, § 152). 133. Further, the Court would point out the particular circumstances of the present case compared with other cases examined by it in which the press had exposed the private life of public figures, including members of the Monegasque ruling family: in a decision which appears to have been personal, deliberate and informed, Ms Coste herself contacted Paris Match ( see paragraph 17 above ). 134. The veracity of Ms Coste ’ s statements with regard to the Prince ’ s paternity has not been contested by him, and he himself publicly acknowledged it shortly after the impugned article was published. In this connection, the Court reiterates the essential nature of the veracity of the disseminated information: respect for this principle is fundamental to the protection of the reputation of others. 135. As to the photographs which illustrate the interview, they were handed over voluntarily – as noted by the Versailles Court of Appeal ( see paragraph 27 above ) – and without charge to Paris Match by Ms Coste ( see paragraph 17 above ). In addition, the photographs showing the Prince with his child were not taken without his knowledge (contrast Von Hannover, cited above, § 68), or in circumstances showing him in an unfavourable light (compare Von Hannover (no. 2), cited above, §§ 121 ‑ 23). Admittedly, and in common with the domestic courts, the Court notes that the photographs showed the Prince in a private context and were published without his consent. However, they certainly did not present him in a light which might undermine his public standing from the reader ’ s perspective. Nor did they present a distorted image of him, and above all they lent support to the content of the interview, illustrating the veracity of the information contained in it. 136. As to the photographs showing the Prince with Ms Coste, it is not disputed that these were taken in public places at events which were themselves public, so their publication raises no particular issues in the circumstances of the present case. ( e ) Content, form and consequences of the impugned article 137. The Government criticised the applicants for having given the published information a sensationalist spin and for failing to filter Ms Coste ’ s disclosures with a view to excluding those which concerned the intimate details of the Prince ’ s life ( see paragraphs 71 - 72 above ). For their part, the domestic courts noted that the impugned publication contained multiple digressions about the circumstances of Ms Coste ’ s meeting with the Prince, the Prince ’ s reaction to the announcement of Ms Coste ’ s pregnancy and his subsequent conduct towards the child ( see paragraphs 27 and 36 above ). 138. In this regard, the Court notes firstly that, in exercising their profession, journalists make decisions on a daily basis through which they determine the dividing line between the public ’ s right to information and the rights of others to respect for their private lives. They thus have primary responsibility for protecting individuals, including public figures, from any intrusion into their private life. The choices that they make in this regard must be based on their profession ’ s ethical rules and codes of conduct. 139. Secondly, the Court reiterates that the approach used to cover a subject is a matter of journalistic freedom. It is not for it, nor for the national courts, to substitute their own views for those of the press in this area (see Jersild, cited above, § 31). Article 10 of the Convention also leaves it for journalists to decide what details ought to be published to ensure an article ’ s credibility (see Fressoz and Roire, cited above, § 54). In addition, journalists enjoy the freedom to choose, from the news items that come to them, which they will deal with and how they will do so. This freedom, however, is not devoid of responsibilities (see paragraphs 131-32 above ). 140. Wherever information bringing into play the private life of another person is in issue, journalists are required to take into account, in so far as possible, the impact of the information and pictures to be published prior to their dissemination. In particular, certain events relating to private and family life enjoy particularly attentive protection under Article 8 of the Convention and must therefore lead journalists to show prudence and caution when covering them ( see Editions Plon, cited above, §§ 47 and 53, and Hachette Filipacchi Associés, cited above, §§ 46 ‑ 49). 141. In the present case, the impugned publication was presented as an interview made up of questions and answers, reproducing Ms Coste ’ s statements without any journalistic commentary. Moreover, the tone of the interview appeared to be measured and non-sensationalist. Ms Coste ’ s remarks are recognisable as quotations and her motives are also clearly set out for the readers. Equally, readers can easily distinguish between what is factual material and what concerns the interviewee ’ s perception of the events, her opinions or her personal feelings ( see paragraph 14 above ). 142. The Court has already had occasion to state that punishing a journalist for assisting in the dissemination of statements made by another person in an interview would seriously hamper the contribution of the press to discussion of matters of public interest and should not be envisaged unless there are particularly strong reasons for doing so (see Jersild, cited above, § 35, and Polanco Torres and Movilla Polanco v. Spain, no. 34147/06, §§ 47-48, 21 September 2010). It considers that the same approach should prevail in the circumstances of the present case, given that, over and above the Prince ’ s private life, the impugned publication concerned a matter of public interest, especially since the details provided by Ms Coste about her relationship with the Prince were not such as to undermine his reputation or arouse contempt towards him ( contrast Ojala and Etukeno Oy, cited above, § 56, and Ruusunen, cited above, § 51). Indeed, it is not disputed that Ms Coste ’ s account of her life and her personal relationship with the Prince was sincere and that it was faithfully reported by the applicants. In addition, there is no cause to doubt that, in publishing this account, the applicants ’ intention was to communicate to the public news that was of general interest ( see paragraph 116 above ). 143. Moreover, it was for the domestic courts to assess the impugned interview in such a way as to differentiate and weigh up what, in Ms Coste ’ s personal remarks, was likely to fall within the core area of the Prince ’ s private life (compare Ojala and Etukeno Oy, cited above, § 56, and Ruusunen, cited above, § 51 ) and what could be of legitimate interest to the public. Yet they failed to do so, denying that there was any “topical” value to the news about the existence of the Prince ’ s son and finding that it did not form part of “any debate on a matter of public interest which would have justified its being reported ... on the grounds of legitimate imparting of information to the public” ( see paragraph 36 above ). 144. Admittedly, the interview was placed in a narrative setting accompanied by graphic effects and headlines which were intended to attract the reader ’ s attention and provoke a reaction ( see paragraphs 15 ‑ 16 above ). Having regard to the Government ’ s criticisms on this point ( see paragraph 72 above ), the Court emphasises that the presentation of a press article and the style used in it are a matter of editorial decision, on which it is not in principle for it, or for the domestic courts, to pass judgment. Nonetheless, it also reiterates that journalistic freedom is not unlimited and that the press must not overstep certain bounds in this connection, in particular “the protection ... of the rights of others” ( see, inter alia, Mosley, cited above, § 113, and MGN Limited, cited above, § 141). In the present case, it considers that, viewed as a whole, this narrative presentation, created through the addition of headlines, photographs and captions, does not distort the content of the information and does not deform it, but must be considered as its transposition or illustration. 145. Moreover, the use of certain expressions ( see paragraphs 15 ‑ 16 above ) which, to all intents and purposes, were designed to attract the public ’ s attention cannot in itself raise an issue under the Court ’ s case-law (see Tănăsoaica v. Romania, no. 3490/03, § 41, 19 June 2012) : the magazine cannot be criticised for enhancing the article and striving to present it attractively, provided that this does not distort or deform the information published and is not such as to mislead the reader. 146. With regard to the photographs illustrating the article which show the Prince holding the child, the Court reiterates first of all that, in essence, Article 10 leaves it for journalists to decide whether or not it is necessary to reproduce such documents to ensure credibility (see, in particular, Fressoz and Roire, cited above, § 54, and Pinto Coelho v. Portugal, no. 28439/08, § 38, 28 June 2011 ). 147. It further notes that the Court of Cassation held that “ the publication of photographs of a person to illustrate subsequent content which amount [ ed ] to an invasion of his privacy necessarily infringe[d] his right to control of his own image” ( see paragraph 36 above ). 148. The Court considers that, while there is no doubt in the present case that these photographs fell within the realm of the Prince ’ s private life and that he had not consented to their publication, their link with the impugned article was not tenuous, artificial or arbitrary ( see Von Hannover v. Germany (no. 3), no. 8772/10, §§ 50 and 52, 19 September 2013). Their publication could be justified by the fact that they added credibility to the account of events. At the time of their publication, given that Ms Coste had been unable to obtain the notarial deed recognising her son ( see paragraphs 14 and 17 above ), she had at her disposal no other evidence which would have enabled her to substantiate her account and enable the applicants to forgo publication of the photographs. In consequence, although publication of these photographs had the effect of exposing the Prince ’ s private life to the public, the Court considers that they supported the account given in the article, which has already been found to have contributed to a debate of public interest ( see paragraph 113 above ). 149. Furthermore, taken alone or in conjunction with the accompanying text ( be this the headlines, subheadings and captions, or the interview itself ), these photographs were not defamatory, pejorative or derogatory for the Prince ’ s image (contrast Egeland and Hanseid, cited above, § 61); indeed, the latter did not allege that there had been damage to his reputation. 150. Lastly, with regard to the consequences of the disputed article, the Court notes that shortly after the article was published, the Prince publicly acknowledged his paternity. The Versailles Court of Appeal held in this connection that he had been “obliged” to provide a public explanation about a matter relating to his private life ( see paragraph 27 above ). For its part, the Court considers that the consequences of the publication must be put into perspective, in the light of the articles which had previously appeared in the Daily Mail and in Bunte. However, in the present case the domestic courts do not appear to have evaluated the consequences in the wider context of the international media coverage already given to the events described in the article. Thus, they attached no weight to the fact that the secrecy surrounding the Prince ’ s paternity had already been undermined by the previous articles in other media ( see paragraphs 9 and 11 above ). ( f ) The severity of the sanction 151. The Court reiterates that in the context of assessing proportionality, irrespective of whether or not the sanction imposed was a minor one, what matters is the very fact of judgment being given against the person concerned, including where such a ruling is solely civil in nature (see, mutatis mutandis, Roseiro Bento v. Portugal, no. 29288/02, § 45, 18 April 2006). Any undue restriction on freedom of expression effectively entails a risk of obstructing or paralysing future media coverage of similar questions. 152. In the present case, the applicant company was ordered to pay EUR 50, 000 in damages and to publish a statement detailing the judgment. The Court cannot consider those penalties to be insignificant. ( g ) Conclusion 153. In the light of all of the above-mentioned considerations, the Court considers that the arguments advanced by the Government with regard to the protection of the Prince ’ s private life and of his right to his own image, although relevant, cannot be regarded as sufficient to justify the interference in issue. In assessing the circumstances submitted for their appreciation, the domestic courts did not give due consideration to the principles and criteria as laid down by the Court ’ s case-law for balancing the right to respect for private life and the right to freedom of expression ( see paragraphs 142 - 43 above ). They thus exceeded the margin of appreciation afforded to them and failed to strike a reasonable balance of proportionality between the measures restricting the applicants ’ right to freedom of expression, imposed by them, and the legitimate aim pursued. The Court therefore concludes that there has been a violation of Article 10 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 154. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 155. The applicants stated that they hoped to obtain just satisfaction which would compensate for the cost of the damages awarded and of the compulsory publication order imposed by the domestic courts. However, they did not quantify their claims under this head. 156. The Government did not comment on those claims before the Grand Chamber. 157. The Court reiterates that under Rule 60 § 2 of the Rules of Court itemised particulars of any claim made under Article 41 of the Convention must be submitted, together with the relevant supporting documents or vouchers, failing which the claim may be rejected in whole or in part. In the present case, the applicants have not submitted particulars of their claims in respect of the damage sustained, nor provided the necessary supporting documents. It follows that the Court cannot allow their claim for compensation. B. Costs and expenses 158. The applicants claimed the sum of EUR 38, 463. 61 as reimbursement of the costs incurred by them in the proceedings before the national courts. They submitted fee notes and invoices in support of their claim. 159. The Government did not comment on those claims before the Grand Chamber. 160. The Court reiterates that costs and expenses will not be reimbursed under Article 41 unless it is established that they were actually incurred, were necessarily incurred and were also reasonable as to quantum. It also reiterates that it may award the applicant not only the costs and expenses incurred before it but also those incurred before the national courts for prevention and redress of the violation ( see Elsholz v. Germany [GC], no. 25735/94, § 7 3, ECHR 2000 ‑ VIII). 161. In the present case, taking account of the documents in its possession and the above-mentioned criteria, the Grand Chamber finds it reasonable to award the applicants jointly EUR 15,000 under this head. C. Default interest 162. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 10 (freedom of expression) of the Convention, finding that the arguments advanced by the French Government with regard to the protection of Prince Albert’s private life and of his right to his own image could not be regarded as sufficient to justify interfering with the judgment in question, and that the domestic courts had not given due consideration to the principles and criteria for balancing the right to respect for private life and the right to freedom of expression. The Court considered in particular that, given the nature of the information in question, the applicants could be understood as having contributed to the coverage of a subject of public interest. It further observed that the disputed publication admittedly concerned the sphere of Prince Albert’s private life, but found that the essential element of the information contained in the article – the child’s existence – went beyond the private sphere, given the hereditary nature of the Prince’s functions as the Monegasque Head of State. |
931 | Concurrent judicial functions in the same case | II. The relevant legislation 1. In general 14. Powers in respect of land reform in Austria are divided between the Federation and the Länder. Legislation establishing general principles is the responsibility of the Federation, while implementing legislation and law enforcement is the responsibility of the Länder (Article 12(1)(3) of the Federal Constitution). By Article 12(2) of the Federal Constitution, decisions at final instance and at Land level are taken by boards consisting of a "chairman, judges, civil servants and experts"; "the board which decides at final instance shall be set up within the appropriate Federal Ministry". "Provision shall be made in a Federal Act for the organisation, functions and procedure of the boards and for the principles for organising the other authorities concerned with land reform". This Act must provide that the executive shall not be able to set aside or vary the boards' decisions; it cannot exclude appeals to the provincial board against decisions by the authority of first instance. 15. Within this constitutional framework the Federal Parliament has passed three Acts dealing with the following matters: (i) the legal principles applicable to land reform (Federal Agricultural Land Planning (General Principles) Act (Flurverfassungs-Grundsatzgesetz 1951), as amended in 1977); (ii) the organisation of the land reform boards and the principles for organising the authorities of first instance (Federal Agricultural Authorities Act (Agrarbehördengesetz 1950), as amended in 1974); (iii) proceedings before agricultural authorities (Federal Agricultural Proceedings Act (Agrarverfahrensgesetz 1950), which refers to the General Administrative Procedure Act). The Länder have regulated the matters for which they are made responsible under the Federal legislation in provincial agricultural land planning Acts (Flurverfassungs-Landesgesetze). In Lower Austria, consolidation is governed by the Agricultural Land Planning Act 1975. This replaced an Act of 1934 and was itself amended in certain respects by an Act of 23 February 1979. 2. The agricultural authorities 16. The first-instance authority in Lower Austria is the District Agricultural Authority, which is a purely administrative body. The higher authorities are the Provincial Board, established at the Office of the Provincial Government, and the Supreme Board, set up within the Federal Ministry of Agriculture and Forestry. Decisions (Bescheide) of the District Authority can be challenged by way of appeal (Berufung) to the Provincial Board, whose decision is final except where it has varied the decision in question and where the dispute concerns one of the issues listed in section 7(2) of the Federal Agricultural Authorities Act, such as the lawfulness of the compensation in the event of land consolidation; in such cases an appeal lies to the Supreme Board. In Austrian law the land reform boards are classified as boards whose members include judges (Kollegialbehörden mit richterlichem Einschlag) and which constitute a kind of "specialised administrative tribunal". 17. The Provincial Board has eight members, all appointed by the Government of the Land (section 5(2) and (4) of the Federal Agricultural Authorities Act), viz.: - one Land civil servant, who is legally qualified (rechtskundig), and acts as chairman; - three judges; - a legally qualified Land civil servant with experience in land reform, who acts as rapporteur; - a senior Land civil servant (Landesbeamter des höheren Dienstes) with experience in agronomic matters; - a senior Land civil servant with experience in forestry matters; and - an agricultural expert within the meaning of section 52 of the General Administrative Procedure Act. 18. The Supreme Board likewise has eight members (section 6(2) and (4) of the Federal Agricultural Authorities Act), viz.: - one legally qualified senior civil servant from the Federal Ministry of Agriculture and Forestry, who acts as chairman; - three members of the Supreme Court; - a legally qualified senior civil servant from the Federal Ministry of Agriculture and Forestry with experience in land reform, who acts as rapporteur; - a senior civil servant from the Federal Ministry of Agriculture and Forestry with experience in agronomic matters; - a senior civil servant from the Federal Ministry of Agriculture and Forestry with experience in forestry matters; and - an agricultural expert within the meaning of section 52 of the General Administrative Procedure Act. The judicial members are appointed by the Federal Minister of Justice, and the others by the Federal Minister of Agriculture and Forestry. 19. Section 52 of the General Administrative Procedure Act, which is referred to in sections 5(2) and 6(2) of the Federal Agricultural Authorities Act, provides: "1. If it becomes necessary to take expert evidence, the authority shall rely on the services of the official experts (Amtssachverständige) attached to it or put at its disposal. 2. However, by way of exception, the authority may also consult other suitable persons sworn as experts if no official experts are available or if it becomes necessary having regard to the particular circumstances of the case. ..." 20. Members of land reform boards are appointed for five years and may be re-appointed (section 9(1) of the Federal Agricultural Authorities Act). They cease to hold office before the expiry of their term if, inter alia, they no longer satisfy the conditions of appointment (section 9(2)). Any member may, at his own request, be relieved of his office on health grounds or for professional reasons which prevent him from properly discharging his duties (section 9(3)). If a judicial or civil-servant member is suspended from duty by decision of a disciplinary tribunal, he shall automatically also be suspended from duty as a member of a land reform board (section 9(4)). 21. The members of these boards discharge their duties independently and are not subject to any instructions (section 8 of the Federal Agricultural Authorities Act and Article 20(2) of the Federal Constitution). The executive can neither set aside nor vary their decisions (section 8 of the Federal Act and Article 12(2) of the Federal Constitution - see paragraph 14 above). The decisions can be challenged in the Administrative Court (section 8 of the Federal Act). 22. The pattern of organisation described above was the outcome of a legislative change in 1974 following a judgment of the Constitutional Court in the same year. In the Constitutional Court's view, the land reform boards as constituted under the 1950 Act could not be regarded as being independent and impartial tribunals within the meaning of Article 6 § 1 (art. 6-1) of the Convention - their members included at that time a Minister from the Federal Government (in the case of the Supreme Board) or the relevant provincial government (in the case of the provincial boards), and the other members could be dismissed at any time by the relevant authorities (judgment of 19 March 1974, Erkenntnisse und Beschlüsse des Verfassungsgerichtshofes, 1974, vol. 39, no. 7284, pp. 148-161). The new legislation excluded from the boards anyone who was a member of either the Federal Government or a provincial government, introduced provisions governing the term of office and the dismissal of members and provided for appeal to the Administrative Court (sections 5(2), 6(2), 8 and 9 of the Federal Agricultural Authorities Act 1974). 3. Procedure before land reform boards 23. Procedure before the land reform boards is governed by the Federal Agricultural Proceedings Act (see paragraph 15 above), section 1 of which stipulates that the General Administrative Procedure Act shall apply - except for one section of no relevance in the instant case - subject to the variations and additional provisions made in the Federal Act. The boards are responsible for the conduct of the proceedings (section 39 of the General Administrative Procedure Act). By section 9(1) and (2) of the Federal Act, the boards take their decisions after a private hearing. This is normally attended by the parties, who may consult the file (section 17 of the General Administrative Procedure Act). The parties may appear in person or be represented (section 9(3) of the Federal Act). The chairman may call witnesses and, in order to obtain information, civil servants who contributed to the decision at first instance and to the preparation of the decision (section 9(5)). Hearings begin with a report by the rapporteur; the board then clarifies the subject-matter of the dispute by hearing evidence from the parties and the witnesses and by looking at the legal and economic situation in detail (eingehend) (section 10(2)). It proceeds on the basis of the facts found by the authority below, but can also order further investigations to be made by that authority or by one or more of its own members (section 10(1)). The parties must be able to acquaint themselves with the findings made as a result of the taking of evidence (Beweisaufnahme) and to submit their comments (section 45(3) of the General Administrative Procedure Act). The boards deliberate and vote without the parties being present. After discussing the outcome of the hearing, the rapporteur submits conclusions (Antrag); anyone wishing to submit different conclusions (Gegen- und Abänderungsanträge) must give reasons for them (section 11(1) of the Federal Act). The chairman determines the order in which the conclusions are put to the vote (ibid). The rapporteur votes first, followed by the judges and then the other members, including the chairman, who votes last and has a casting vote if the votes are divided equally (section 11(2)). If an appeal is brought - within the prescribed two weeks (section 7(3)) - and is held to be admissible, the appropriate board will, if the findings of fact are so defective that a new hearing appears to be unavoidable, quash the disputed decision and remit the case to the authority below; otherwise it will determine the merits of the case itself (section 66(2) and (4) of the General Administrative Procedure Act). It may vary either the operative part of the impugned decision or the reasons given for the decision (section 66(4)). Boards must determine cases without undue delay (ohne unnötigen Aufschub) and in any event not later than six months after an application has been made to them (section 73(1)). If the board's decision (Erkenntnis) is not notified to the parties concerned within that time, the parties may apply to the higher authority, which will thereupon acquire jurisdiction to determine the merits (section 73(2)). If the latter authority fails to give a decision, jurisdiction passes - on an application by the interested party - to the Administrative Court (Article 132 of the Federal Constitution and section 27 of the Administrative Court Act). Reasons must be given for the boards' decisions, which must summarise clearly (klar und übersichtlich) the findings of the investigation, the assessment of the evidence, and the ruling - on the basis of that material - on the legal issues arising in the case (sections 58(2) and 60 of the General Administrative Procedure Act). Decisions are sent to the parties; a board may, however, choose to give its decision forthwith (section 13 of the Federal Act). 4. Appeals to the Constitutional Court and the Administrative Court 24. The decisions of land reform boards can be challenged in the Constitutional Court. The latter reviews whether there has been any infringement of an applicant's rights under the Constitution and whether any decree (Verordnung) unauthorised by statute law or any unconstitutional statute or international treaty unlawful (rechtswidrig) under Austrian law has been applied (Article 144 of the Federal Constitution). 25. As an exception to the general rule laid down in Article 133(4) of the Federal Constitution, section 8 of the Federal Agricultural Authorities Act provides for an appeal to the Administrative Court against the decisions of land reform boards. Application may be made to the Administrative Court before or after an application to the Constitutional Court, which, if it rules that there has been no infringement of the right relied on in the application to it, will refer the case to the Administrative Court if the applicant so requests (Article 144(3) of the Federal Constitution). 26. Under Article 130 of the Federal Constitution, the Administrative Court hears applications alleging the unlawfulness of an administrative act (Bescheid) or coercion (Befehls- und Zwangsgewalt) against an individual or the breach by a competent authority of its duty to take a decision. It also hears appeals against decisions by boards whose members include judges - such as the land reform boards - where such jurisdiction is conferred on it by statute (see paragraphs 16, 22 and 25 above). If the Administrative Court does not dismiss the application as unfounded, it will quash the decision appealed against; it determines the merits itself only where the relevant authority has failed in its duty to give a decision (section 42(1) of the Administrative Court Act (Verwaltungsgerichtshofgesetz)). When reviewing the lawfulness of an administrative act or of a decision by a board whose members include judges, the Court does so on the basis of the facts found by the authority concerned and solely in the light of the complaints made, unless the authority has acted ultra vires or procedural requirements have not been complied with (section 41 of the Administrative Court Act). In this connection the Act specifically provides that the Court shall quash the act appealed against - on grounds of procedural irregularity - where the facts the administrative authority held to have been established are contradicted in a vital respect by the file, or where they are incomplete in such a respect or where there has been a failure to comply with rules which, if they had been correctly applied, might have resulted in a different decision (section 42(2)(3) of the aforementioned Act). If, during the consideration of a case, grounds emerge which were previously unknown to the parties, the latter must be given an opportunity to be heard by the court, which must adjourn the proceedings if necessary (section 41(1) of the Act). 27. Procedure consists mainly in an exchange of pleadings (section 36), followed (except in certain cases specified in the Act) by a hearing inter partes, which will normally be held in public (sections 39 and 40). PROCEEDINGS BEFORE THE COMMISSION 28. The applicants applied to the Commission on 27 October 1980 (application no. 9273/81). They claimed that they had not had a hearing by an independent and impartial tribunal as required by Article 6 § 1 (art. 6-1) of the Convention. 29. The Commission declared the application admissible on 9 March 1984. In its report of 3 July 1985 (made under Article 31) (art. 31), it reached the conclusion that there had been a breach of Article 6 § 1 (art. 6-1) (ten votes to two). The full text of the Commission's opinion and of the separate opinions contained in the report is annexed to this judgment. FINAL SUBMISSIONS TO THE COURT 30. At the hearing on 20 October 1986, the Court was asked - by the Government "to hold that in the present case the provisions of Article 6 § 1 (art. 6-1) of the European Convention on Human Rights have not been violated and that therefore the facts underlying the dispute do not indicate any breach by the Republic of Austria under the Convention"; - by the Commission's Delegate to uphold the Commission's opinion; and - by the applicants to find in their favour. AS TO THE LAW 31. The applicants claimed that they had not had a "public" hearing by an "independent and impartial tribunal". In their submission, the Provincial and Supreme Land Reform Boards were not sufficiently independent of the executive; at least some of their members could not be considered to be impartial; and proceedings did not take place in public. Subsequent review by the Administrative Court had not, they contended, provided a remedy: it was available only after lengthy administrative proceedings and had not been sufficiently wide in scope, since it was in principle confined to consideration of points of law. They argued that there had consequently been a breach of Article 6 § 1 (art. 6-1) of the Convention, which provides: "In the determination of his civil rights and obligations ..., everyone is entitled to a ... public hearing ... by an independent and impartial tribunal established by law. ..." The Government disputed these contentions; the Commission agreed with the applicants that their right to a hearing by an "independent and impartial tribunal" had not been respected. 1. Applicability of Article 6 § 1 (art. 6-1) 32. The Obritzberg agricultural consolidation plan concerned, inter alia, land belonging to the Ettl, Schalhas, Gunacker and Haas families, which was taken from them in exchange for land previously belonging to other owners. The applicants contested - and continue to contest - the lawfulness of the compensation obtained. Any decision - whether favourable or unfavourable - by the authorities dealing with the matter consequently affected, affects or will in the future affect their property rights. The outcome of the proceedings complained of is accordingly "decisive for private rights and obligations" (see the Ringeisen judgment of 16 July 1971, Series A no. 13, p. 39, § 94, and the Sramek judgment of 22 October 1984, Series A no. 84, p. 17, § 34), so that Article 6 § 1 (art. 6-1) applies in the instant case; the Government, moreover, conceded this. 2. Compliance with Article 6 § 1 (art. 6-1) 33. The dispute ("contestation") related to the consolidation plan adopted and then published in July 1973 by the Lower Austrian District Agricultural Authority. The dispute was submitted to the Provincial Board, the Supreme Board, the Constitutional Court and the Administrative Court in turn. It must therefore be determined whether recourse to those authorities satisfied the requirements of Article 6 § 1 (art. 6-1). (a) "Independent and impartial tribunal" 34. The Provincial and Supreme Boards, the Administrative Court and the Constitutional Court are clearly tribunals established by law (see, mutatis mutandis, the above-mentioned Sramek judgment, p. 17, § 36). It is further necessary that they should have been independent and impartial. 35. The Administrative Court and the Constitutional Court undoubtedly satisfied that requirement, but, in the applicants' submission, the same was not true of the Provincial and Supreme Boards, mainly on account of their membership: the Provincial and Supreme Boards comprised a majority of civil servants in a hierarchical relationship with one another and three of whom sat as experts, while the other two occupied the key positions of chairman and rapporteur. The applicants also contended that the members' term of office was too short. In their view, members should be appointed for life, in order to ensure that they were not subject to any pressure. The Government saw these boards as "specialised administrative tribunals" (see paragraph 16 above) such as have existed in Austria since the last century. They maintained that the boards' members had the necessary independence - in 1974, the legislature had adjusted the organisation of the boards to comply with the requirements of Article 6 (art. 6) as the Court had interpreted it in its judgment of 16 July 1971 in the Ringeisen case. In the view of the Commission, on the other hand, the Provincial and Supreme Boards did not have sufficient independence in the instant case, as they contained a majority of officials some or all of whom were from the same civil-service departments and in a position of hierarchical subordination in respect of their other duties (see paragraphs 97 and 98 of the Commission's report and paragraphs 9 and 10 above). 36. The Court notes that, at the time in question, the Provincial Board included three judges; the head of Division VI 4 of the Office of the Lower Austrian Provincial Government, who acted as chairman; a member of the same division, as rapporteur; a member of Division VI 11; and two other civil servants from the Office of the Provincial Government, one of them sitting as an agricultural expert (see paragraph 9 above). The Supreme Board consisted of three Supreme Court judges and five civil servants from the Federal Ministry of Agriculture and Forestry - the chairman and the rapporteur came from Division I 7, the other three from Divisions II C 7, II C 8 and V A 3 (see paragraph 10 above). 37. The independence and impartiality of the judge members is not in issue. There remain the civil servants whom the Provincial Board and the Supreme Board included as members pursuant to the Federal Agricultural Authorities Act (see paragraphs 17 and 18 above). 38. It should be noted first of all that the fact that these civil servants sat, and even constituted a majority, on the bodies concerned does not in itself contravene Article 6 § 1 (art. 6-1) of the Convention. The Federal Constitution and the Federal Agricultural Authorities Act make provision for their independence and prohibit public authorities from giving them any instructions concerning their judicial duties (see paragraph 21 above; and the above-mentioned Ringeisen judgment, Series A no. 13, pp. 39-40, §§ 95-97, and the above-mentioned Sramek judgment, Series A no. 84, p. 19, § 41). Nor did the applicants claim that the civil servants who heard their case had received any such instructions as to the matters in dispute. The boards were independent not only of the executive but also, inter alia, of the parties to the case, namely the owners of the land concerned (see the above-mentioned Ringeisen judgment, p. 39, § 95, and the Campbell and Fell judgment of 28 June 1984, Series A no. 80, p. 39, § 78). It should be emphasised that neither the Provincial Government nor the Federal Government was a party to the case; in this respect the present case is similar to the Ringeisen case and differs from the Sramek case (see the above-mentioned Sramek judgment, ibid.). 39. Given the situation in law and in fact as found in the present case, the hierarchical links which existed in other contexts between civil servants from the same division are of no consequence from the point of view of Article 6 (art. 6) either. It would appear, moreover, that such links existed only between the chairman and the rapporteur in each of the two boards. 40. As to the three civil servants who, pursuant to the Act, sat on account of their experience of agronomy, forestry and agriculture, their membership cannot give rise to doubts about the independence and impartiality of the boards. They were experts in their fields; such experts are needed in cases concerning land consolidation, which is an operation that raises issues of great complexity and affects not only the owners directly concerned but the community as a whole. The boards' composition enables them to reach balanced decisions, having regard to the various interests at stake. Besides, the domestic legislation of the Council of Europe's member States affords many examples of tribunals in which professional judges sit alongside specialists in a particular sphere whose knowledge is desirable and even essential in settling the disputes within the tribunals' jurisdiction. Where these civil servants prepare a written opinion on a given issue, section 45(3) of the General Administrative Procedure Act requires that it be communicated to the parties, who must be given an opportunity to submit their comments (see paragraph 23 above). The adversarial nature of the proceedings before the boards under the Federal Agricultural Authorities Act and the General Administrative Procedure Act (see the above-mentioned Sramek judgment, p. 18, § 38) is accordingly quite unaffected by the participation of the "civil-servant experts". In the case of the Ettls, the Administrative Court in fact quashed the Supreme Board's decision, precisely on the ground that the opinion of the member who was an agronomy expert had not been brought to the applicants' knowledge (see paragraph 12 above). 41. As regards the length of the term of office of members of the boards, the Federal Agricultural Authorities Act likewise satisfies the conditions laid down in Article 6 § 1 (art. 6-1): the five-year term, coupled with virtual irremovability during that period (see paragraph 20 above), does not put the independence and impartiality of these boards in doubt (see the above-mentioned Sramek judgment, ibid.). (b) "Public hearing" 42. In accordance with the Act, the sittings of the boards which heard the instant case were attended by the parties but were not held in public (see paragraph 23 above). This lack of any public hearing, which is normally contrary to Article 6 § 1 (art. 6-1), is covered, however, by the reservation Austria made when ratifying the Convention. On this point, the Court refers to its above-mentioned judgment in the Ringeisen case; it sees no reason to depart from that judgment (pp. 40-41, § 98). 43. Accordingly, there was no breach of Article 6 § 1 (art. 6-1) in respect of the Provincial and Supreme Boards. It is consequently unnecessary to determine whether the Administrative Court's review - taken by itself or in conjunction with the Constitutional Court's review - complied, as regards its scope, with the requirements of Article 6 § 1 (art. 6-1). | The Court held that there had been no violation of Article 6 § 1 of the Convention, finding that the Provincial and Supreme Land Reform Boards, to which the applicants to which the applicants had appealed against a number of consolidation decisions affecting their land, were independent and impartial tribunals. The independence and impartiality of the judge members, it noted, were not in issue. As to the civil servants, their presence did not in itself contravene Article 6 § 1 of the Convention: the Constitution and the relevant legislation made provision for their independence and prohibited public authorities from giving them any instructions concerning their judicial duties. Moreover, the applicants did not claim that the civil servants who heard their case had received any such instructions as to the matters in dispute. The boards were independent not only of the executive but also of the parties to the case, namely the owners of the land concerned. Given this situation, the hierarchical links which existed in other contexts between civil servants from the same division within the Provincial or Federal civil service to which, they belonged were of no consequence either. Nor could the membership of the civil servants who sat on account of their experience of agronomy, forestry and agriculture give rise to doubts about the independence and impartiality of the boards . They were experts in their fields, and such experts are needed in cases concerning land consolidation, which is an operation that raises issues of great complexity. |
104 | Taking of children into care | II. RELEVANT DOMESTIC LAW A. German Basic Law ( Grundgesetz ) 50. Article 1 § 1 of the Basic Law reads as follows: “(1) Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority. ” 51. Article 2 of the Basic Law, in so far as relevant, reads as follows: “(1) Every person shall have the right to the free development of his personality in so far as he does not violate the rights of others or offend against the constitutional order or the moral law. (2) Every person shall have the right to life and physical integrity. ...” 52. Article 4 of the Basic Law, in so far as relevant, reads as follows: “(1) Freedom of faith and of conscience, and freedom to profess a religious or philosophical creed, shall be inviolable. (2) The undisturbed practice of religion shall be guaranteed. ... ” 53. Article 6 of the Basic law, in so far as relevant, reads as follows “(1) Marriage and the family shall enjoy the special protection of the state. (2) The care and upbringing of children is the natural right of parents and a duty primarily incumbent upon them. The state shall watch over them in the performance of this duty. (3) Children may be separated from their families against the will of their parents or guardians only pursuant to a law, and only if the parents or guardians fail in their duties or the children are otherwise in danger of serious neglect. ... ” B. German Civil Code ( Bürgerliches Gesetzbuch ) 54. Article 1631 § 2 of the German Civil Code reads as follows: “Children have the right to a non-violent upbringing. Physical punishment, psychological injury and other degrading measures are prohibited.” 55. Article 1666 of the German Civil Code reads, as far as relevant, as follows: “ (1) Where the physical, mental or psychological best interests of a child or a child ’ s property are endangered and the parents do not wish, or are not able, to avert the danger, a family court must take the necessary measures to avert the danger. ... (3) The court measures in accordance with subsection (1) include in particular instructions to seek public assistance, such as benefits of child and youth welfare and healthcare, instructions to ensure that the obligation to attend school is complied with, prohibitions to use the family home or another dwelling temporarily or for an indefinite period, to be within a certain radius of the home or to visit certain other places where the child regularly spends time, prohibitions to establish contact with the child or to bring about a meeting with the child, substitution of declarations of the person with parental authority, part or complete removal of parental authority. ” 56. Article 1666a of the German Civil Code, in so far as relevant, reads as follows: “(1) Measures which entail a separation of the child from his or her parental family are only allowed if other measures, including public support measures, cannot avert the danger ... (2) The right to care for a child may only be withdrawn if other measures have been unsuccessful or if it is to be assumed that they do not suffice to avert the danger.” C. Courts Constitution Act ( Gerichtsverfassungsgesetz ) 57. According to section 198 of the Courts Constitution Act, a party to proceedings who suffers a disadvantage from protracted proceedings is entitled to adequate monetary compensation. In so far as relevant, section 198 reads: “(1) Whoever, as the result of the unreasonable length of a set of court proceedings, experiences a disadvantage as a participant in those proceedings shall be given reasonable compensation. The reasonableness of the length of proceedings shall be assessed in the light of the circumstances of the particular case concerned, in particular the complexity thereof, the importance of what was at stake in the case, and the conduct of the participants and of third persons therein. (2) A disadvantage not constituting a pecuniary disadvantage shall be presumed to have occurred in a case where a set of court proceedings has been of unreasonably long duration. Compensation can be claimed therefore only in so far as redress by other means, having regard to the circumstances of the particular case, is not sufficient in accordance with subsection (4). Compensation pursuant to the second sentence shall amount to EUR 1,200 for every year of the delay. Where, having regard to the circumstances of the particular case, the sum under the third sentence is inequitable, the court can assess a higher or lower sum. ... (5) A court action to enforce a claim under subsection (1) can be brought at the earliest six months after the filing of the notice of delay. ... ” III. RELEVANT INTERNATIONAL LAW AND PRACTICE A. United Nations Convention on the Rights of the Child of 26 January 1990 58. The United Nations Convention on the Rights of the Child entered into force for Germany on 5 April 1992. The relevant parts read as follows: “ Article 3 (1) In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. ... Article 9 (1) States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child ’ s place of residence. (2) In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known. ... Article 19 (1) States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child. ... Article 37 States Parties shall ensure that: (a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. ... ” 59. The Committee on the Rights of the Child of the United Nations provided in its general comment no. 13 (2011) (The right of the child to freedom from all forms of violence (CRC/C/GC/13); published on 18 April 2011) guidance on the interpretation of Article 19 of the Convention on the Rights of the Child. The relevant parts read: “ IV. Legal analysis of article 19 A. Article 19, paragraph 1 1. ‘ ... all forms of ... ’ No exceptions. The Committee has consistently maintained the position that all forms of violence against children, however light, are unacceptable. “All forms of physical or mental violence” does not leave room for any level of legalized violence against children. Frequency, severity of harm and intent to harm are not prerequisites for the definitions of violence. States parties may refer to such factors in intervention strategies in order to allow proportional responses in the best interests of the child, but definitions must in no way erode the child ’ s absolute right to human dignity and physical and psychological integrity by describing some forms of violence as legally and/or socially acceptable. ... Physical violence. This includes fatal and non-fatal physical violence. The Committee is of the opinion that physical violence includes: (a) All corporal punishment and all other forms of torture, cruel, inhuman or degrading treatment or punishment; ... Corporal punishment. In general comment No. 8 (para. 11), the Committee defined “corporal” or “physical” punishment as any punishment in which physical force is used and intended to cause some degree of pain or discomfort, however light. Most involves hitting (“smacking”, “slapping”, “spanking”) children, with the hand or with an implement – a whip, stick, belt, shoe, wooden spoon, etc. But it can also involve, for example, kicking, shaking or throwing children, scratching, pinching, biting, pulling hair or boxing ears, caning, forcing children to stay in uncomfortable positions, burning, scalding, or forced ingestion. In the view of the Committee, corporal punishment is invariably degrading. ... Harmful practices. These include, but are not limited to: (a) Corporal punishment and other cruel or degrading forms of punishment; ... ” 60. In its general comment no. 14 (2013) (The right of the child to have his or her best interests taken as a primary consideration (CRC/C/GC/14); published on 29 May 2013) the Committee provided guidance on the interpretation of Article 3 § 1 of the Convention and the factors that should be taken into account when making a best interests assessment. The relevant parts read: “ A. Best interests assessment and determination ... 1. Elements to be taken into account when assessing the child ’ s best interests 52. Based on these preliminary considerations, the Committee considers that the elements to be taken into account when assessing and determining the child ’ s best interests, as relevant to the situation in question, are as follows: (a) The child ’ s views ... (b) The child ’ s identity ... (c) Preservation of the family environment and maintaining relations ... 60. Preventing family separation and preserving family unity are important components of the child protection system, and are based on the right provided for in article 9, paragraph 1, which requires “that a child shall not be separated from his or her parents against their will, except when [ ... ] such separation is necessary for the best interests of the child”. ... 61. Given the gravity of the impact on the child of separation from his or her parents, such separation should only occur as a last resort measure, as when the child is in danger of experiencing imminent harm or when otherwise necessary; separation should not take place if less intrusive measures could protect the child. Before resorting to separation, the State should provide support to the parents in assuming their parental responsibilities, and restore or enhance the family ’ s capacity to take care of the child, unless separation is necessary to protect the child. ... (d) Care, protection and safety of the child ... 73. Assessment of the child ’ s best interests must also include consideration of the child ’ s safety, that is, the right of the child to protection against all forms of physical or mental violence, injury or abuse (art. 19), sexual harassment, peer pressure, bullying, degrading treatment, etc., as well as protection against sexual, economic and other exploitation, drugs, labour, armed conflict, etc.(arts. 32-39). 74. Applying a best-interests approach to decision-making means assessing the safety and integrity of the child at the current time; however, the precautionary principle also requires assessing the possibility of future risk and harm and other consequences of the decision for the child ’ s safety. (e) Situation of vulnerability ... (f) The child ’ s right to health ... (g) The child ’ s right to education ... ” B. European Social Charter of 18 October 1961 61. The European Social Charter entered into force vis-à-vis Germany on 27 January 1965. Its Article 17 reads as follows: “ Article 17 – The right of mothers and children to social and economic protection With a view to ensuring the effective exercise of the right of mothers and children to social and economic protection, the Contracting Parties will take all appropriate and necessary measures to that end, including the establishment or maintenance of appropriate institutions or services.” 62. In a Resolution adopted on 17 June 2015 (CM/ResChS(2015)12), the Committee of Ministers of the Council of Europe stated the following regarding the interpretation of this provision: “There is now a wide consensus at both the European and international level among human rights bodies that the corporal punishment of children should be expressly and comprehensively prohibited in law. The Committee refers, in particular, in this respect to the General Comment Nos. 8 and 13 of the Committee on the Rights of the Child. Most recently, the following interpretation of Article 17 of the Charter has been given as regards the corporal punishment of children was made in the decision World Organisation against Torture (OMCT) v. Portugal, Complaint No. 34/2006, decision on the merits of 5 December 2006, sections 19-21: ‘ To comply with Article 17, States ’ domestic law must prohibit and penalise all forms of violence against children that is acts or behaviour likely to affect the physical integrity, dignity, development or psychological well-being of children. The relevant provisions must be sufficiently clear, binding and precise, so as to preclude the courts from refusing to apply them to violence against children. Moreover, States must act with due diligence to ensure that such violence is eliminated in practice. ’ ” THE LAW I. JOINDER OF THE APPLICATIONS 63. Given their similar factual and legal background, the Court decides that the two applications shall be joined by virtue of Rule 42 § 1 of the Rules of Court. II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 64. The applicants complained that the decisions of the domestic courts in the main proceedings to withdraw parts of their parental authority had been disproportionate and had been based on unfair proceedings that had lacked sufficient factual foundation. They further alleged that their religious beliefs were the reason their parental rights had been withdrawn and that they had been prevented from raising their children in compliance with their religious beliefs. Lastly, the applicants complained that the main proceedings before the family courts had been unreasonably long. The applicants relied on Article 8 of the Convention. Moreover, they invoked Articles 6 § 1 and 9 of the Convention and Article 2 of Protocol No. 1. The Court, as master of the characterisation to be given in law to the facts of the case (see Kutzner v. Germany, no. 46544/99, § 56, ECHR 2002 ‑ I ), finds it appropriate to examine all complaints solely under Article 8 of the Convention, which reads, as far as relevant, as follows: “1. Everyone has the right to respect for his ... family life .... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society ... for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Admissibility 1. Length of proceedings 65. As far as the applicants ’ complaint about the length of the main proceedings is concerned, the Court reiterates that in relation to the State ’ s positive obligations under Article 8 of the Convention it has previously considered that ineffective, and in particular delayed, conduct of custody proceedings may give rise to a breach of Article 8 of the Convention (see, for example Moog v. Germany, nos. 23280/08 and 2334/10, § 87, 6 October 2016; Z. v. Slovenia, no. 43155/05, § 142, 30 November 2010; and V.A.M. v. Serbia, no. 39177/05, § 146, 13 March 2007). 66. Turning to the facts of the present case the court observes that the main proceedings in both applications were started upon applications by the applicants dated 9 September 2013 and ended by decisions of the Federal Constitutional Court of 16 August 2015. The proceedings, at three levels of jurisdiction, therefore lasted one year and eleven months. The Court further notes that during the one year and one month the cases were pending before the Family Court it commissioned an expert opinion, which had to be supplemented owing to criticism of it by the applicants ’ privately commissioned expert. The court also substituted the consent of the children in parallel proceedings, heard the applicants, their children and further witnesses and led settlement negotiations between the applicants and the youth office. Having regard to the above, the Court considers that there were no particular delays in the course of the proceedings that could be attributed to the conduct of the Family Court. The Court therefore finds that in the light of all the material in its possession they do not disclose any appearance of a violation of Article 8 in regard to the length of proceedings. Accordingly, this complaint is manifestly ill ‑ founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. 2. Withdrawal of parental authority 67. The Court notes that the complaint concerning the withdrawal of parental authority is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ submissions (a) The applicants 68. The applicants argued that the partial withdrawal of their parental authority had been disproportionate. The domestic courts had, in an arbitrary fashion, equated corporal punishment with child abuse, even though none of the children had shown any physical signs of abuse or injuries. The applicants submitted that their parenting method of “corporal discipline” did not constitute violence or child abuse, or harm their children in any way. Nonetheless, the domestic courts had incorrectly presumed that “corporal discipline” would likely result in psychological problems. That presumption had been based on the opinion of a court- appointed expert, whose conclusions had not only been challenged to a large extent by the applicants ’ own expert but whose examination the applicants had also not consented to. 69. The applicants further argued that separating the children from their parents had harmed them more than corporal punishment of any kind. Consequently, the decisions had not been based on the best interests of the children. The decisions had been highly disproportionate as the courts had not considered less severe measures, but had expected the applicant parents to abandon their parenting practices and therefore their religious beliefs. Moreover, the courts had prevented the applicants from leaving Germany with their children and from moving to a country where their parenting methods were accepted. 70. In sum, the withdrawal of parental authority had not pursued a legitimate aim as it had not been geared towards the best interests of the children but had constituted discrimination based on the applicants ’ membership in the Twelve Tribes Church. Furthermore, the decisions had not been “ necessary in a democratic society ” as they had not been based on “ relevant and sufficient ” reasons. (b) The Government 71. The Government submitted that the partial withdrawal of the applicants ’ parental authority had constituted an interference which had aimed at protecting the rights of the applicants ’ children. The decisions had been “necessary in a democratic society” as there had been “relevant and sufficient” reasons to withdraw some parental rights and transfer them to the youth office. The applicants, based on their religious convictions, considered caning used for corrective and instructive purposes as legitimate and the applicants in application no. 11344/16 had already regularly used corporal punishment against their daughters with a rod. Owing to their obligation to protect children from violence, the domestic courts had been forced to withdraw those parts of the applicants ’ parental authority that had been necessary to protect the children ’ s best interests, which in the instant cases had overridden the interests of the parents. The relevant court decisions had been as limited as possible with regard to which parental rights could remain with the applicants. Additionally, since the applicants had not shown in a credible manner that they had abandoned their parenting practices and had not been willing to cooperate with the competent authorities either, no other, more lenient measure had been capable of protecting the applicant children. 72. The Government also pointed out that in the main proceedings at issue there had been no further restrictions on contact between the applicants and their children and that they had not been prevented from teaching their children their religious community ’ s ideas and beliefs. The courts had merely taken the necessary steps to prevent the children from suffering from physically and psychologically harmful behaviour, which according to the applicants was based on their religious convictions and understanding of the Bible. 73. Similarly, the courts had not prevented the applicants from leaving Germany. However, in the situation the applicants had created by leaving Germany, the domestic courts had correctly concluded that the risk to the best interests of the children could no longer be averted by more lenient measures, since these could not be sufficiently monitored or enforced by the competent domestic authorities. 74. Lastly, the Government submitted that the decisions had been based on fair proceedings, which had fully involved the applicants and their children. In addition, the courts had assessed in detail the written expert opinion as well as the challenges to it by the applicants. The courts had legitimately considered the applicants ’ withdrawal of their consent to the assessment as irrelevant as they had been sufficiently informed before the examination and there was no privilege against self-incrimination in civil proceedings. In sum, the assessment of evidence by the courts had not been arbitrary or unfair, but had established a sufficient factual foundation for anticipating an imminent risk to the best interests of the children. (c) The third - party intervener 75. The third party, ADF International, submitted that it was generally in a child ’ s best interests to be raised by his or her parents and that removing a child from parental care was a traumatic and harmful experience. The intervener further argued that the Court had acknowledged this by emphasising the importance of upholding family ties and aiming at family reunification in its case-law. Additionally, the Court had continually requested sufficiently sound and weighty reasons to justify taking children into care and held that the mere fact that a child would be better off if placed in care was not sufficient (see Olsson v. Sweden (no. 1), 24 March 1988, § 71, Series A no. 130). 2. The Court ’ s assessment (a ) Interference 76. The parties agreed that the decisions in the main proceedings to withdraw the applicants ’ right to decide where their children should live, and to take decisions regarding the children ’ s health and schooling had constituted an interference with the applicants ’ right to respect for their family life. The Court endorses this conclusion and observes that such interference constitutes a violation of Article 8 unless it is “in accordance with the law”, pursues an aim or aims that are legitimate under paragraph 2 of this provision and can be regarded as “necessary in a democratic society”. (b ) Legal basis 77. The Court notes that while complaining about the application of the relevant provisions in the present case, the applicants did not dispute that the relevant decisions had had a basis in national law, namely Articles 1666 and 1666a of the Civil Code ( see paragraphs 55, 56 above). (c ) Legitimate aim 78. The applicants alleged that the domestic court decisions had had no legitimate aim and that the withdrawal of parts of their parental authority had not been based on considerations concerning corporal punishment but on the fact that the applicants were members of the Twelve Tribes Church and raised the children in accordance with their faith. They argued that the decisions in essence constituted discrimination on the grounds of religion. 79. The Court reiterates that the right to respect for family life and to religious freedom, as enshrined in Articles 8 and 9 of the Convention, together with the right to respect for parents ’ philosophical and religious convictions in education, as provided for in Article 2 of Protocol No. 1 to the Convention, convey to parents the right to communicate and promote their religious convictions in bringing up their children ( Vojnity v. Hungary, no. 29617/07, § 37, 12 February 2013). While the Court has accepted that this might even occur in an insistent and overbearing manner, it has stressed that it may not expose children to dangerous practices or to physical or psychological harm (ibid.). This protection of minors from harm has also been affirmed in other international treaties, such as the United Nations Convention on the Rights of the Child, which obliges states to take appropriate measures to protect children from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation (see paragraph 58 above). 80. The Court notes that even though the domestic court decisions discussed the applicants ’ church membership and their religious views, they based their decisions on the likelihood that the children would be caned. It further observes that the connection between religious views and caning was established by the applicants themselves by justifying their parental practice with quotes from the Bible and their religious views. The Court therefore concludes that the decisions of which the applicants complained were aimed at protecting the “rights and freedoms” of the children. Accordingly, they pursued a legitimate aim within the meaning of paragraph 2 of Article 8. (d ) Necessary in a democratic society ( i ) General principles 81. The Court reiterates that the question of whether an interference was “necessary in a democratic society” requires consideration of whether, in the light of the case as a whole, the reasons adduced to justify the measures were “relevant and sufficient”. Article 8 requires that a fair balance must be struck between the interests of the child and those of the parent and, in striking such a balance, particular importance must be attached to the best interests of the child which, depending on their nature and seriousness, may override those of the parent (see Elsholz v. Germany [GC], no. 25735/94, §§ 48, 50, ECHR 2000 ‑ VIII; T.P. and K.M. v. the United Kingdom [GC], no. 28945/95, § 70, ECHR 2001 ‑ V (extracts); and Hoppe v. Germany, no. 28422/95, §§ 48, 49, 5 December 2002). 82. In identifying the child ’ s best interests in a particular case, two considerations must be borne in mind: first, it is in the child ’ s best interests that his ties with his family be maintained except in cases where the family has proved particularly unfit; and second, it is in the child ’ s best interests to ensure his development in a safe and secure environment, and a parent cannot be entitled under Article 8 to have such measures taken as would harm the child ’ s health and development ( Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 136, ECHR 2010). It is not enough to show that a child could be placed in a more beneficial environment for his or her upbringing (see K. and T. v. Finland [GC], no. 25702/94, § 173, ECHR 2001 ‑ VII). 83. The Court further notes that while Article 8 contains no explicit procedural requirements, the decision-making process involved in measures of interference must be fair and such as to afford due respect to the interests safeguarded by Article 8. The Court cannot satisfactorily assess whether the reasons adduced by the national courts to justify these measures were “sufficient” for the purposes of Article 8 § 2 without at the same time determining whether the parents have been involved in the decision-making process, seen as a whole, to a degree sufficient to provide them with the requisite protection of their interests (see, inter alia, T.P. and K.M. v. the United Kingdom, cited above, § 72, and Süß v. Germany, no. 40324/98, § 89, 10 November 2005). 84. In considering the reasons adduced to justify the measures, and in assessing the decision-making process, the Court will give due account to the fact that the national authorities had the benefit of direct contact with all of the persons concerned. It is not the Court ’ s task to substitute itself for the domestic authorities in the exercise of their responsibilities regarding custody issues (compare, among many other authorities, Elsholz, cited above, § 48). The Court reiterates that the authorities enjoy a wide margin of appreciation when assessing the necessity of taking a child into care (ibid., § 49). 85. Lastly, the Court reiterates that the obligation on the High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken in conjunction with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman and degrading treatment or punishment, including such treatment administered by private individuals (see A. v. the United Kingdom, 23 September 1998, § 22, Reports of Judgments and Decisions 1998-VI). A positive obligation on the State to provide protection against inhuman or degrading treatment has been found to arise under Article 3 in a number of cases: see, for example, A. v. the United Kingdom (cited above), where the child applicant had been caned by his stepfather; and Z and Others v. the United Kingdom ([GC], no. 29392/95, ECHR 2001-V), where four child applicants were severely abused and neglected by their parents. 86. Moreover, even though ill-treatment in violation of Article 3 usually involves actual bodily injury or intense physical or mental suffering, in the absence of those aspects, treatment may still be characterised as degrading and fall within the prohibition set forth in Article 3, if it humiliates or debases an individual, showing a lack of respect for or diminishing his or her human dignity, or arouses feelings of fear, anguish or inferiority capable of breaking an individual ’ s moral and physical resistance ( Bouyid v. Belgium [GC], no. 23380/09, § 87, ECHR 2015, with further references). In that context the Court also notes that the Committee on the Rights of the Child of the United Nations defined corporal punishment as any punishment in which physical force is used and intended to cause some degree of pain or discomfort, however light, and emphasised that all forms of violence against children, however light, are unacceptable (see paragraph 59 above). 87. Lastly, in cases relating to both Articles 3 and 8 the Court has stressed the relevance of the age of the minors concerned and the need, where their physical and moral welfare is threatened, for children and other vulnerable members of society to benefit from State protection (see, for example, K.U. v. Finland, no. 2872/02, § 46, ECHR 2008; Mubilanzila Mayeka and Kaniki Mitunga v. Belgium, no. 13178/03, § 53, ECHR 2006 ‑ XI and Ioan Pop and Others v. Romania, no. 52924/09, 6 December 2016). The need to take account of the vulnerability of minors has also been affirmed at international level (see the references to international law in Bouyid, cited above, §§ 52-53 and 109). (ii ) Application to the present case 88. Turning to the circumstances of the present case, the Court notes that at the core of the applicants ’ complaint lies the question of whether a parental practice of caning constitutes a sufficiently weighty reason to withdraw parts of parental authority and to take children into care. 89. The Court acknowledges that the applicants argued that their practice of caning did not cross the threshold of Article 3 of the Convention and that no physical signs of abuse were found on the children when they were examined after being taken into care. While the Court does not have to decide in the present case whether the applicants ’ treatment of their children, either actual or anticipated, went beyond the threshold of severity to fall within the ambit of Article 3 of the Convention, it observes, nonetheless, that treatment of this kind could fall within the scope of Article 3 of the Convention (see A. v. the United Kingdom, cited above, § 21). 90. In order to avoid any risk of ill-treatment and degrading treatment of children, the Court considers it commendable if member States prohibit in law all forms of corporal punishment of children. In that regard it notes that Germany has already established a right for children to have a non ‑ violent upbringing and has prohibited physical punishment, psychological injury and other degrading measures. 91. The Court notes that member States should enforce legal provisions prohibiting corporal punishment of minors by proportionate measures in order to make such prohibitions practical and effective and not to remain theoretical. Therefore, the Court finds that the risk of systematic and regular caning constituted a relevant reason to withdraw parts of the parents ’ authority and to take the children into care. 92. In assessing whether the reasons adduced by the domestic courts were also sufficient for the purposes of Article 8 § 2, the Court will have to determine whether the decision-making process, seen as a whole, provided the applicants with the requisite protection of their interests and whether the measures chosen were proportionate. 93. The Court observes that the applicants, assisted by counsel, were in a position to put forward all their arguments against the withdrawal of parental authority and that the courts diligently established the facts of the case. The Family Court and the Court of Appeal heard, inter alia, the applicants, the children – except G. Pingen –, the guardian ad litem of all the children and representatives of the competent youth office. As regards the fact that the courts refrained from hearing G. Pingen, who was still with his parents during the proceedings, the Court reiterates that the requirement of hearing children in custody proceedings depends on the specific circumstances of each case, in particular the age and maturity of the child concerned (see Sahin v. Germany [GC], no. 30943/96, § 73, ECHR 2003 ‑ VIII). Given that G. Pingen had just turned two before the decision of the Court of Appeal, the Court finds it acceptable that the domestic courts did not question him. 94. Moreover, the Family Court commissioned an expert opinion, heard that expert and the one commissioned by the applicants, who challenged the court-commissioned expert ’ s findings. The Court of Appeal also heard both experts. In that context, the Court notes that the applicants unsuccessfully criticised the court-commissioned expert ’ s approach and pursued those arguments in the present proceedings. However, the Court has no cause to doubt the professional competence of the expert or the manner in which he conducted the interviews with all concerned. 95. In regard to the applicants ’ withdrawal of the consent they had given to be examined by the court-commissioned expert, the Court observes that, when the applicants were interviewed by the expert, they had been properly instructed and voluntarily underwent the interview and assessment. The Court would therefore note that the expert did not act against the will of the applicants and that the applicants were not forced to undergo the expert ’ s assessment. In addition, the Court finds that the Government has rightly pointed out that Article 6 does not include a privilege against self ‑ incrimination in civil proceedings and that it is therefore not necessary to accept a withdrawal of consent ex post, when the result of the expert opinion had already been known. Accepting such a withdrawal would jeopardize family court proceedings and a court ’ s obligation to effectively protect children from harm. In sum, the Court agrees with the Family Court and the Court of Appeal that the withdrawal ex post of the applicants ’ consent did not render the expert opinion unusable as evidence and that relying on the opinion was justified by the general interest of the effective protection of children in family court proceedings. 96. Having regard to the above and to the domestic court ’ s benefit of direct contact with all of the persons concerned, the Court is satisfied that the German courts ’ procedural approach was reasonable and provided sufficient material to reach a reasoned decision on the question of withdrawal of parental authority in the present case. The Court can therefore accept that the procedural requirements implicit in Article 8 of the Convention were complied with. 97. Lastly, the Court has to assess whether the decisions to withdraw parts of the parents ’ authority and to take the children into care were proportionate. Taking children into care and thereby splitting up a family constitutes a very serious interference with the right to respect to family life protected under Article 8 of the Convention and should only be applied as a measure of last resort (see Neulinger and Shuruk, cited above, § 136 ). However, the decisions by the domestic courts were based on a risk of inhuman or degrading punishment, as prohibited by Article 3 of the Convention. The Court has previously held that even in the most difficult circumstances the Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the conduct of the person concerned. Moreover, the domestic courts did not assess the risk for the children in the abstract – based on the applicants ’ view on parenting – but followed a differentiated approach and examined for each child, based on the respective age, whether it could be expected that the applicants ’ child-rearing methods would be put into practice and that therefore a real and imminent risk of corporal punishment existed. Given the right of children to a non-violent upbringing in German law and the conflicting but strict conviction of the applicants, the domestic courts concluded that taking the children into care was justifiable. 98. In addition, the Court observes that the Family Court and the Court of Appeal gave detailed reason why there was no other option available to effectively protect the children, which entailed less of an infringement of each family ’ s rights. Based on the expert ’ s opinion that the physical effects of caning were only short-lived while psychological consequences could only be determined after a longer period of time, the courts correctly concluded that an effective protection of the children by unannounced visits and closer monitoring was impossible. The Court agrees with this line of reasoning and would add that the proceedings concerned a form of institutionalized violence against minors, which was considered by the applicant parents as an element of the children ’ s upbringing. Consequently, any assistance by the youth office, such as training of the parents, could not have effectively protected the children, as corporally disciplining the children was based on their unshakeable dogma. 99. Moreover, the Court notes that the Court of Appeal correctly pointed out that in the situation the parents had created by leaving the country during the proceedings, the detriment to the best interests of the children could no longer be averted by more lenient measures since the competent authorities would not be able to sufficiently monitor and enforce such measures. In that regard, the Court notes that the domestic courts did not order the applicants to stay in Germany but reasonably concluded that any less infringing measure would have at least entailed the need for supervision and monitoring by the competent domestic authorities. Lastly, the Court observes that the Family Court attempted to broker a friendly settlement between the youth office and the applicants, with the aim of returning the children to their parents and simultaneously protecting the children from corporal punishment. 100. In sum, the foregoing considerations are sufficient to enable the Court to conclude that there were “relevant and sufficient” reasons for the withdrawal of some parts of the parents ’ authority. Based on fair proceedings, the domestic courts struck a balance between the best interests of the children and those of the applicants, which did not fall outside the margin of appreciation granted to the domestic authorities. 101. There has accordingly been no violation of Article 8 of the Convention. | The Court held that there had been no violation of Article 8 (right to respect for private and family life) of the Convention, finding that the German courts, in fair and reasonable proceedings in which each child’s case had been looked at individually, had struck a balance between the interests of the parents and the best interests of the children. The Court agreed in particular with the German courts that the risk of systematic and regular caning of children justified withdrawing parts of the parents’ authority and taking the children into care. Their decisions had been based on a risk of inhuman or degrading treatment, which is prohibited in absolute terms under the Convention. The Court pointed out, moreover, that the German courts had given detailed reasons why they had had no other option available to them to protect the children. In particular, the parents had remained convinced during the proceedings that corporal punishment was acceptable and, even if they would have agreed to no caning, there had been no way of ensuring that it would not be carried out by other members of the community. |
508 | From the ReesChristine Goodwin | II. DOMESTIC LAW AND PRACTICE A. Medical treatment 18. In the United Kingdom sexual reassignment operations are permitted without legal formalities. The operations and treatment may, as in the case of Mr. Rees, be carried out under the National Health Service. B. Change of name 19. Under English law a person is entitled to adopt such first names or surname as he or she wishes and to use these new names without any restrictions or formalities, except in connection with the practice of some professions where the use of the new names may be subject to certain formalities (see, inter alia, Halsbury ’ s Laws of England, 4th ed., vol. 35, para. 1176). For the purposes of record and to obviate the doubt and confusion which a change of name is likely to involve, the person concerned very frequently makes, as did Mr. Rees, a declaration in the form of a "deed poll" which may be enrolled with the Central Office of the Supreme Court. The new names are valid for purposes of legal identification (see Halsbury ’ s Laws of England, loc. cit., para. 1174) and may be used in documents such as passports, driving licences, car registration books, national insurance cards, medical cards, tax codings and social security papers. The new names are also entered on the electoral roll. C. Identity documents 20. Civil status certificates or equivalent current identity documents are not in use or required in the United Kingdom. Where some form of identification is needed, this is normally met by the production of a driving licence or a passport. These and other identity documents may, according to the prevailing practice, be issued in the adopted names of the person in question with a minimum of formality. In the case of transsexuals, the documents are also issued so as to be in all respects consistent with the new identity. Thus, the practice is to allow the transsexual to have a current photograph in his or her passport and the prefix "Mr.", "Mrs.", "Ms." or "Miss", as appropriate, before his or her adopted names. D. The Register of Births 21. The system of civil registration of births, deaths and marriages was established by statute in England and Wales in 1837. Registration of births is at present governed by the Births and Deaths Registration Act 1953 ("the 1953 Act"). The entry into force of this Act entailed no material change to the law in force in 1942, the date of the applicant ’ s birth. The 1953 Act requires that the birth of every child be registered by the Registrar of Births and Deaths for the area in which the child is born. The particulars to be entered are prescribed in regulations made under the 1953 Act. A birth certificate takes the form either of an authenticated copy of the entry in the register of births or of an extract from the register. A certificate of the latter kind, known as a "short certificate of birth", is in a form prescribed and contains such particulars as are prescribed by regulations made under the 1953 Act. The particulars so prescribed are the name and surname, sex, date of birth and place of birth of the individual. An entry in a birth register and the certificate derived therefrom are records of facts at the time of the birth. Thus, in England and Wales the birth certificate constitutes a document revealing not current identity, but historical facts. The system is intended to provide accurate and authenticated evidence of the events themselves and also to enable the establishment of the connections of families for purposes related to succession, legitimate descent and distribution of property. The registration records also form the basis for a comprehensive range of vital statistics and constitute an integral and essential part of the statistical study of population and its growth, medical and fertility research and the like. 22. The 1953 Act provides for the correction of clerical errors, such as the incorrect statement or omission of the year of the birth, and for the correction of factual errors; however, in the latter case, an amendment can be made only if the error occurred when the birth was registered. The birth register may also, within twelve months from the date of registration, be altered to give or change the name of a child and re-registration of a birth is permitted where the child has been legitimated. In addition, under the Adoption Act 1958, where a child is adopted, the register of births is to be marked with the word "adopted"; the adoption is also registered in the Adopted Children Register and a short certificate of birth may be obtained which contains no reference to parentage or adoption. 23. The criteria for determining the sex of the person to be registered are not laid down in the 1953 Act nor in any of the regulations made under it. However, the practice of the Registrar General is to use exclusively the biological criteria: chromosomal, gonadal and genital sex. The fact that it becomes evident later in life that the person ’ s "psychological sex" is at variance with these biological criteria is not considered to imply that the initial entry was a factual error and, accordingly, any request to have the initial entry changed on this ground will be refused. Only in cases of a clerical error, or where the apparent and genital sex of the child was wrongly identified or in case of biological intersex, i.e. cases in which the biological criteria are not congruent, will a change of the initial entry be contemplated and it is necessary to adduce medical evidence that the initial entry was incorrect. However, no error is accepted to exist in the birth entry of a person who undergoes medical and surgical treatment to enable that person to assume the role of the opposite sex. 24. The birth registers and the indexes of all the entries are public. However, the registers themselves are not readily accessible to the general public as identification of the index reference would require prior knowledge not only of the name under which the person concerned was registered, but also of the approximate date and place of birth and the Registration District. 25. The law does not require that the birth certificate be produced for any particular purpose, although it may in practice be requested by certain institutions and employers. In particular, a birth certificate has in general to accompany a first application for a passport, although not for its renewal or replacement. A birth certificate is also generally (though not invariably) required by insurance companies when issuing pension or annuity policies, but not for the issue of motor or household policies nor, as a rule, for the issue of a life insurance policy. It may also be required when enrolling at a university and when applying for employment, inter alia, with the Government. E. Marriage 26. In English law, marriage is defined as a voluntary union for life of one man and one woman to the exclusion of all others (per Lord Penzance in Hyde v. Hyde (1868) Law Reports 1 Probate and Divorce 130, 133). Section 11 of the Matrimonial Causes Act 1973 gives statutory effect to the common-law provision that a marriage is void ab initio if the parties are not respectively male and female. 27. According to the decision of the High Court in Corbett v. Corbett (1971) Probate Reports 83, sex, for the purpose of contracting a valid marriage, is to be determined by the chromosomal, gonadal and genital tests where these are congruent. The relevance of a birth certificate to the question whether a marriage is void only arises as a matter of evidence which goes to the proof of the identity and sex of the person whose birth it certifies. The entry in the birth register is prima facie evidence of the person ’ s sex. It may, however, be rebutted if evidence of sufficient weight to the contrary is adduced. 28. If, for the purpose of procuring a marriage or a certificate or licence for marriage, any person knowingly and wilfully makes a false oath or makes or signs a false declaration, notice or certificate required under any Act relating to marriage, he is guilty of an offence under Section 3 (1) of the Perjury Act 1911. However, a person contracting a marriage abroad is not liable to prosecution under this Act. F. The legal definition of sex for other purposes 29. The biological definition of sex laid down in Corbett v. Corbett has been followed by English courts and tribunals on a number of occasions and for purposes other than marriage. The applicant has drawn the Court ’ s attention to the following cases. In one case concerning prostitution, a male to female transsexual, who had undergone both hormone and surgical treatment, was nevertheless treated as a male by the Court of Appeal for the purposes of Section 30 of the Sexual Offences Act 1956 and Section 5 of the Sexual Offences Act 1967 (Regina v. Tan and Others 1983, [1983] 2 All England Law Reports 12). In two cases concerning social security legislation, male to female transsexuals were considered by the National Insurance Commissioner as males for the purposes of retirement age; in the first case the person in question had only received hormone therapy, in the second he had involuntarily begun to develop female secondary characteristics at the age of 46, which developments were followed by surgery and adoption of a female social role some 13 years later (cases R (P) 1 and R (P) 2 in the 1980 Volume of National Insurance Commissioner Decisions). Lastly, in a case before an Industrial Tribunal a female to male transsexual, who had not undergone any sex change treatment, was treated as a female by the Tribunal for the purposes of the Sex Discrimination Act 1975; the person in question had sought and received employment in a position reserved for men under the Factories Act, but was dismissed after discovery of her biological sex (White v. British Sugar Corporation Ltd. [1977] Industrial Relations Law Reports p. 121). PROCEEDINGS BEFORE THE COMMISSION 30. In his application (no. 9532/81) lodged with the Commission on 18 April 1979, Mr. Rees complained that United Kingdom law did not confer on him a legal status corresponding to his actual condition. He invoked Articles 3, 8 and 12 (art. 3, art. 8, art. 12) of the Convention. 31. On 15 March 1984, the Commission declared admissible the complaints under Articles 8 and 12 (art. 8, art. 12). In its report of 12 December 1984, it expressed the unanimous opinion that there had been a breach of Article 8 (art. 8), but not of Article 12 (art. 12). The full text of the Commission ’ s opinion is reproduced as an annex to the present judgment. FINAL SUBMISSIONS MADE TO THE COURT 32. At the hearing on 18 March 1986, the Government formally invited the Court to reach the conclusion and make the findings (1) that there has been no breach of the right to respect for the private life of the applicant under Article 8 para. 1 (art. 8-1) of the Convention and (2) that there has been no breach of the applicant ’ s right to marry and found a family under Article 12 (art. 12) of the Convention. The applicant, for his part, asked the Court to find that there had been a breach of both Articles (art. 8, art. 12). AS TO THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 (art. 8) 33. The applicant claimed to be the victim of national legislation and practices contrary to his right to respect for his private life, enshrined in Article 8 (art. 8), which provides: "1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others." 34. The applicant complained primarily of the constraints upon his full integration into social life which were a result of the failure of the Government to provide measures that would legally constitute him as a male for the purposes of the exhaustive classification of all citizens into male or female. In particular, he complained of the practice of issuing him with a birth certificate on which his sex continued to be recorded as "female". Such a certificate, he alleged, was effectively an irrebuttable description of his sex, wherever sex was a relevant issue and, revealing as it did the discrepancy between his apparent and his legal sex, it caused him embarrassment and humiliation whenever social practices required its production. The Government contested the applicant ’ s claim; the Commission, on the other hand, agreed with it in its essentials. A. Interpretation of Article 8 (art. 8) in the context of the present case 35. The Court has already held on a number of occasions that, although the essential object of Article 8 (art. 8) is to protect the individual against arbitrary interference by the public authorities, there may in addition be positive obligations inherent in an effective respect for private life, albeit subject to the State ’ s margin of appreciation (see, as the most recent authority, the Abdulaziz, Cabales and Balkandali judgment of 28 May 1985, Series A no. 94, pp. 33-34, para. 67). In the present case it is the existence and scope of such "positive" obligations which have to be determined. The mere refusal to alter the register of births or to issue birth certificates whose contents and nature differ from those of the birth register cannot be considered as interferences. 36. The Commission and the applicant submitted that the applicant has been socially accepted as a man (see paragraph 17 above) and that, consistently with this, the change in his sexual identity should be given full legal recognition by the United Kingdom. It was only with regard to the choice of the necessary measures that there could be any room for a margin of appreciation, or for any balancing with countervailing public interests. The Government, on the other hand, maintained that the whole matter depended on the balance that had to be struck between the competing interests of the individual and of society as a whole. 37. As the Court pointed out in its above-mentioned Abdulaziz, Cabales and Balkandali judgment the notion of "respect" is not clear-cut, especially as far as those positive obligations are concerned: having regard to the diversity of the practices followed and the situations obtaining in the Contracting States, the notion ’ s requirements will vary considerably from case to case. These observations are particularly relevant here. Several States have, through legislation or by means of legal interpretation or by administrative practice, given transsexuals the option of changing their personal status to fit their newly-gained identity. They have, however, made this option subject to conditions of varying strictness and retained a number of express reservations (for example, as to previously incurred obligations). In other States, such an option does not - or does not yet - exist. It would therefore be true to say that there is at present little common ground between the Contracting States in this area and that, generally speaking, the law appears to be in a transitional stage. Accordingly, this is an area in which the Contracting Parties enjoy a wide margin of appreciation. In determining whether or not a positive obligation exists, regard must be had to the fair balance that has to be struck between the general interest of the community and the interests of the individual, the search for which balance is inherent in the whole of the Convention (see, mutatis mutandis, amongst others, the James and Others judgment of 21 February 1986, Series A no. 98, p. 34, para. 50, and the Sporrong and Lönnroth judgment of 23 September 1982, Series A no. 52, p. 26, para. 69). In striking this balance the aims mentioned in the second paragraph of Article 8 (art. 8-2) may be of a certain relevance, although this provision refers in terms only to "interferences" with the right protected by the first paragraph - in other words is concerned with the negative obligations flowing therefrom (see, mutatis mutandis, the Marckx judgment of 13 June 1979, Series A no. 31, p. 15, para. 31). B. Compliance with Article 8 (art. 8) 38. Transsexualism is not a new condition, but its particular features have been identified and examined only fairly recently. The developments that have taken place in consequence of these studies have been largely promoted by experts in the medical and scientific fields who have drawn attention to the considerable problems experienced by the individuals concerned and found it possible to alleviate them by means of medical and surgical treatment. The term "transsexual" is usually applied to those who, whilst belonging physically to one sex, feel convinced that they belong to the other; they often seek to achieve a more integrated, unambiguous identity by undergoing medical treatment and surgical operations to adapt their physical characteristics to their psychological nature. Transsexuals who have been operated upon thus form a fairly well-defined and identifiable group. 39. In the United Kingdom no uniform, general decision has been adopted either by the legislature or by the courts as to the civil status of post-operative transsexuals. Moreover, there is no integrated system of civil status registration, but only separate registers for births, marriages, deaths and adoption. These record the relevant events in the manner they occurred without, except in special circumstances (see paragraph 22 above), mentioning changes (of name, address, etc.) which in other States are registered. 40. However, transsexuals, like anyone else in the United Kingdom, are free to change their first names and surnames at will (see paragraph 19 above). Similarly, they can be issued with official documents bearing their chosen first names and surnames and indicating, if their sex is mentioned at all, their preferred sex by the relevant prefix (Mr., Mrs., Ms. or Miss) (see paragraph 20 above). This freedom gives them a considerable advantage in comparison with States where all official documents have to conform with the records held by the registry office. Conversely, the drawback - emphasised by the applicant - is that, as the country ’ s legal system makes no provision for legally valid civil-status certificates, such persons have on occasion to establish their identity by means of a birth certificate which is either an authenticated copy of or an extract from the birth register. The nature of this register, which furthermore is public, is that the certificates mention the biological sex which the individuals had at the time of their birth (see paragraphs 21 and 24 above). The production of such a birth certificate is not a strict legal requirement, but may on occasion be required in practice for some purposes (see paragraph 25 above). It is also clear that the United Kingdom does not recognise the applicant as a man for all social purposes. Thus, it would appear that, at the present stage of the development of United Kingdom law, he would be regarded as a woman, inter alia, as far as marriage, pension rights and certain employments are concerned (see paragraphs 27 and 29 above). The existence of the unamended birth certificate might also prevent him from entering into certain types of private agreements as a man (see paragraph 25 above). 41. For the applicant and the Commission this situation was incompatible with Article 8 (art. 8), there being in their opinion no justification for it on any ground of public interest. They submitted that the refusal of the Government to amend or annotate the register of births to record the individual ’ s change of sexual identity and to enable him to be given a birth certificate showing his new identity cannot be justified on any such ground. Such a system of annotation would, according to the applicant, be similar to that existing in the case of adoptions. The applicant and the Commission pointed to the example of certain other Contracting States which have recently made provision for the possibility of having the original indication of sex altered from a given date. The Commission additionally relied on the fact that the United Kingdom, through its free national health service, had borne the costs of the surgical operations and other medical treatment which the applicant had been enabled to undergo. They considered that this medical recognition of the necessity to assist him to realise his identity must be regarded as a further argument for the legal recognition of the change in his sexual identity; failure to do so had the effect that the applicant was treated as an ambiguous being. 42. The Court is not persuaded by this reasoning. (a) To require the United Kingdom to follow the example of other Contracting States is from one perspective tantamount to asking that it should adopt a system in principle the same as theirs for determining and recording civil status. Albeit with delay and some misgivings on the part of the authorities, the United Kingdom has endeavoured to meet the applicant ’ s demands to the fullest extent that its system allowed. The alleged lack of respect therefore seems to come down to a refusal to establish a type of documentation showing, and constituting proof of, current civil status. The introduction of such a system has not hitherto been considered necessary in the United Kingdom. It would have important administrative consequences and would impose new duties on the rest of the population. The governing authorities in the United Kingdom are fully entitled, in the exercise of their margin of appreciation, to take account of the requirements of the situation pertaining there in determining what measures to adopt. While the requirement of striking a fair balance, as developed in paragraph 37 above, may possibly, in the interests of persons in the applicant ’ s situation, call for incidental adjustments to the existing system, it cannot give rise to any direct obligation on the United Kingdom to alter the very basis thereof. (b) Interpreted somewhat more narrowly, the applicant ’ s complaint might be seen as a request to have such an incidental adjustment in the form of an annotation to the present birth register. Whilst conceding that additions can be made to the entries in the birth register in order to record, for example, subsequent adoption or legitimation (see paragraphs 22-23 above), the Government disputed that the proposed annotation was comparable to additions of this kind. They submitted that, in the absence of any error or omission at the time of birth, the making of an alteration to the register as to the sex of the individual would constitute a falsification of the facts contained therein and would be misleading to other persons with a legitimate interest in being informed of the true situation. They contended that the demands of the public interest weighed strongly against any such alteration. The Court notes that the additions at present permitted as regards adoption and legitimation also concern events occurring after birth and that, in this respect, they are not different from the annotation sought by the applicant. However, they record facts of legal significance and are designed to ensure that the register fulfils its purpose of providing an authoritative record for the establishment of family ties in connection with succession, legitimate descent and the distribution of property. The annotation now being requested would, on the other hand, establish only that the person concerned henceforth belonged to the other sex. Furthermore, the change so recorded could not mean the acquisition of all the biological characteristics of the other sex. In any event, the annotation could not, without more, constitute an effective safeguard for ensuring the integrity of the applicant ’ s private life, as it would reveal his change of sexual identity. 43. The applicant has accordingly also asked that the change, and the corresponding annotation, be kept secret from third parties. However, such secrecy could not be achieved without first modifying fundamentally the present system for keeping the register of births, so as to prohibit public access to entries made before the annotation. Secrecy could also have considerable unintended results and could prejudice the purpose and function of the birth register by complicating factual issues arising in, inter alia, the fields of family and succession law. Furthermore, no account would be taken of the position of third parties, including public authorities (e.g. the armed services) or private bodies (e.g. life insurance companies) in that they would be deprived of information which they had a legitimate interest to receive. 44. In order to overcome these difficulties there would have to be detailed legislation as to the effects of the change in various contexts and as to the circumstances in which secrecy should yield to the public interest. Having regard to the wide margin of appreciation to be afforded the State in this area and to the relevance of protecting the interests of others in striking the requisite balance, the positive obligations arising from Article 8 (art. 8) cannot be held to extend that far. 45. This conclusion is not affected by the fact, on which both the Commission and the applicant put a certain emphasis, that the United Kingdom cooperated in the applicant ’ s medical treatment. If such arguments were adopted too widely, the result might be that Government departments would become over-cautious in the exercise of their functions and the helpfulness necessary in their relations with the public could be impaired. In the instant case, the fact that the medical services did not delay the giving of medical and surgical treatment until all legal aspects of persons in the applicant ’ s situation had been fully investigated and resolved, obviously benefited him and contributed to his freedom of choice. 46. Accordingly, there is no breach of Article 8 (art. 8) in the circumstances of the present case. 47. That being so, it must for the time being be left to the respondent State to determine to what extent it can meet the remaining demands of transsexuals. However, the Court is conscious of the seriousness of the problems affecting these persons and the distress they suffer. The Convention has always to be interpreted and applied in the light of current circumstances (see, mutatis mutandis, amongst others, the Dudgeon judgment of 22 October 1981, Series A no. 45, pp. 23-24, paragraph 60). The need for appropriate legal measures should therefore be kept under review having regard particularly to scientific and societal developments. II. ALLEGED VIOLATION OF ARTICLE 12 (art. 12) 48. The applicant complained of the undisputed fact that, according to the law currently in force in the United Kingdom, he cannot marry a woman. He alleged a violation of Article 12 (art. 12), which provides: "Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right." The Government contested this; the Commission was divided between two conflicting views. 49. In the Court ’ s opinion, the right to marry guaranteed by Article 12 (art. 12) refers to the traditional marriage between persons of opposite biological sex. This appears also from the wording of the Article which makes it clear that Article 12 (art. 12) is mainly concerned to protect marriage as the basis of the family. 50. Furthermore, Article 12 (art. 12) lays down that the exercise of this right shall be subject to the national laws of the Contracting States. The limitations thereby introduced must not restrict or reduce the right in such a way or to such an extent that the very essence of the right is impaired. However, the legal impediment in the United Kingdom on the marriage of persons who are not of the opposite biological sex cannot be said to have an effect of this kind. 51. There is accordingly no violation in the instant case of Article 12 (art. 12) of the Convention. | The European Court of Human Rights held that there had been no violation of Article 8 (right to respect for private and family life) of the European Convention on Human Rights. It noted in particular that the changes demanded by the applicant would had involved fundamentally modifying the system for keeping the register of births, which would have had important administrative consequences and imposed new duties on the rest of the population. Furthermore, the Court attached importance to the fact that the United Kingdom had borne the costs of the applicant’s medical treatment. However, the Court was conscious “of the seriousness of the problems affecting transsexuals and of their distress” and recommended “keeping the need for appropriate measures under review, having regard particularly to scientific and societal developments” (§ 47 of the judgment). The Court also held that there had been no violation of Article 12 (right to marry and found a family) of the Convention in the present case, noting in particular that the traditional concept of marriage was based on union between persons of opposite biological sex and that States had the power to regulate the right to marry. |
187 | State’s duty to protect physical and psychological integrity of individuals | II. RELEVANT DOMESTIC LAW A. Act no. XIX of 1998 on the Code of Criminal Procedure Section 138/A – Restraining Order “ (1) A restraining order restricts the right of the accused to free movement and the free choice of residence. The accused under the effect of a restraining order shall, in line with the rules established by the court decision, a) leave the dwelling specified by the court and keep away from such dwelling for a period prescribed by the court, b) keep away from the person specified by the court, and from this person ’ s home, workplace, ... for a period specified by the court, c) refrain from directly or indirectly contacting the person specified by the court. (2) A restraining order may be issued in case of a well-founded suspicion of a criminal act punishable by imprisonment having been committed – provided that the purpose of the restraining order may be fulfilled and if pre-trial detention of the accused is not necessary – and if, particularly in view of the nature of the criminal act, the behaviour of the accused prior to and during the procedure and the relationship between the accused and the aggrieved party, there is well-founded reason to assume that if left in the residential environment, the accused would ... b) carry out the attempted or planned criminal act or commit another criminal act punishable by a prison sentence against the aggrieved party. ... (4) A restraining order shall be issued by order of a court. ... ” 36. A restraining order is valid between ten and sixty days. B. Act no. IV of 1978 on the Criminal Code Section 176 – Criminal Trespass “ (1) A person who enters or remains in another person ’ s home, other premises or fenced off area which constitutes part of the property, by force, menace, or on the false pretext of carrying out official duties, shall have committed a misdemeanour punishable by imprisonment of up to two years. ” C. Act no. LXXII of 2009 on Restraining Order due to Violence among Relatives 37. This law enables the police to place a temporary restraining order on the perpetrator for seventy-two hours, inter alia, if it finds evidence of domestic violence upon an onsite visit, or upon the report of the aggrieved party. The courts may issue a restraining order for up to thirty days. 38. However, the Act is only applicable to the relationships listed in it (section 1 subsection 5), and former common-law spouses do not fall within its scope if the relationship has not been previously registered. D. Act no. LXVI of 1992 on the Registration of Citizens ’ Personal Data and Residence 39. According to section 26( 4 ), the registration of a place of residence does not create any pecuniary rights or rights concerning the use of the property. E. Act no. IV of 1959 on the Civil Code 40. If a possessor ’ s ownership rights are interfered with, section 188(1) of the Civil Code provides for the protection of the possession (“ birtokvédelem ”) from any specified person. Application of this measure may be requested from the notary within one year of the beginning of the interference. The decision taken by the notary is subject to appeal before the domestic courts. If more than one year has passed, the discontinuance of the interference may be directly requested from the courts. F. Act no. III of 1952 on the Code of Civil Procedure 41. Section 156( 1 ) of the Code of Civil Procedure allows a party to request the courts, as an interim measure, to execute his or her claim or request for an interim measure to be applied, if it is necessary, inter alia, in order to prevent imminent damage from materialising or if the petitioner ’ s legal protection merits special consideration. THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 42. The applicant complained that the Hungarian authorities failed to take positive measures to protect her from her violent former common-law husband. She relied on Articles 2, 3 and 8 of the Convention. The Court finds that this complaint should be analysed under Article 8, which reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 43. The Government contested that argument. A. Admissibility 1. The Government ’ s arguments 44. The Government acknowledged that the applicant had submitted several criminal complaints for harassment, assault and trespass. However, they maintained that the applicant had failed to avail herself of all effective domestic remedies. In particular, she had failed to pursue several of her criminal charges for assault and thus the cases were discontinued. In addition, the Government argued that there had been no evidence or even indication that the applicant had been forced in any way or intimidated by the alleged perpetrator to withdraw her charges. Concerning her complaints of harassment and trespass, she had failed to file a private lawsuit after the discontinuation of the investigations. Furthermore, she had not appealed against the criminal judgments convicting her. 45. Apart from the failure to make full use of the criminal law remedies, the Government were of the view that the applicant had also failed to make effective use of the remedies under civil law. Firstly, she had not requested the protection of her possession from the notary or the court, despite the possibility provided by the Civil Code. The fact that she requested the notary on one occasion to ensure she was provided with keys to the apartment (see paragraph 31 above ) could not, in their opinion, be considered as a request for protection of a possession. Moreover, in the course of such proceedings, she could have requested an interim measure to be applied under section 156( 1 ) of the Code of Civil Procedure granting her exclusive possession of the apartment in question. 46. In the Government ’ s view, the obligation to exhaust domestic remedies could not be regarded as having been fulfilled by the applicant ’ s request to the notary to delete her address as Gy.B. ’ s place of residence (see paragraph 33 above). According to their reasoning, this request could not have provided effective redress for the applicant ’ s grievances as the registration of a place of residence did not create any rights concerning the use of real estate (see paragraph 39 ), therefore its deletion could not extinguish any rights either. In any event, the applicant had failed to seek judicial review of the notary ’ s decision. 2. The applicant ’ s arguments 47. The applicant disputed the Government ’ s arguments in general terms. She contended that the violation not only derived from the State ’ s actions, but also from its failure to act, against which no effective remedy was available. 3. The Court ’ s assessment 48. The Court reiterates that the purpose of Article 35 of the Convention is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Convention institutions. Consequently, States are dispensed from answering for their acts before an international body before they have had an opportunity to put matters right through their own legal system. The rule of exhaustion of domestic remedies referred to in Article 35 of the Convention requires that normal recourse should be had by an applicant only to remedies that relate to the breaches alleged and at the same time are available and sufficient. The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness; it falls to the respondent State to establish that these various conditions are satisfied (see Selmouni v. France [GC], no. 25803/94, §§ 74 and 75, ECHR 1999 ‑ V, and Branko Tomašić and Others v. Croatia, no. 46598/06, §§ 35-37, 15 January 2009 ). 49. The Court would emphasise that the application of this rule must make due allowance for the context. Accordingly, it has recognised that Article 35 must be applied with some degree of flexibility and without excessive formalism (see Cardot v. France, 19 March 1991, § 34, Series A no. 200 ). It has further recognised that the rule of exhaustion of domestic remedies is neither absolute nor capable of being applied automatically; in reviewing whether the rule has been observed, it is essential to have regard to the particular circumstances of the individual case (see Van Oosterwijck v. Belgium, 6 November 1980, § 35, Series A no. 40 ). This means, amongst other things, that the Court must take realistic account not only of the existence of formal remedies in the legal system of the Contracting Party concerned but also of the general legal and political context in which they operate as well as the personal circumstances of the applicants (see Akdivar and Others v. Turkey [GC], 16 September 1996, § 69, Reports of Judgments and Decisions 1996 ‑ IV ). 50. Turning to the particular circumstances of the case, the Court notes the Government ’ s observations that the applicant failed to pursue her criminal complaints, and that she did not request the protection of her possession from the domestic courts. However, it observes that the applicant availed herself of several other remedies provided by domestic law. These proceedings, namely repeated requests for a restraining order and a civil claim to order Gy.B. to leave the flat (see paragraphs 17, 24 and 34 above), could in principle, if pursued successfully, have led to the removal – if only temporary – of Gy.B. from the flat the applicant lives in. In this connection the Court points out that, in the event of there being a number of domestic remedies which an individual can pursue, that person is entitled to choose a remedy which addresses his or her essential grievance. In other words, when a remedy has been pursued, use of another remedy which has essentially the same objective is not required (see T.W. v. Malta [GC], no. 25644/94, § 34, 29 April 1999; Moreira Barbosa v. Portugal (dec.), no. 65681/01, ECHR 2004 ‑ V (extracts); and Jeličić v. Bosnia and Herzegovina (dec.), no. 41183/02, ECHR 2005 ‑ XII (extracts ) ). 51. The Court further notes that there are three separate sets of civil proceedings pending before the domestic courts between the applicant and Gy.B., all of which have been suspended until the determination of yet another civil dispute. The Court therefore considers that for the applicant to avail herself of an additional civil action for the protection of her possession would be redundant. 52. In these circumstances the Court is satisfied that the applicant has thus exhausted domestic remedies. Consequently, the Government ’ s objection must be dismissed. Furthermore, this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ submissions (a) The applicant 53. The applicant pointed out that while the Government had emphasised the difficulties in reconstructing the facts of an act which had happened behind closed doors, they had not taken into real consideration the positive obligation of the State to protect her private and family life. Her right to physical integrity had required the domestic authorities to decide on her civil disputes with Gy.B. within a reasonable time. The applicant further argued that a remedy which was slow could not be regarded effective. In her opinion, Article 8 of the Convention included her right to use her home being secure in her person and without disturbance. (b) The Government 54. The Government submitted that the Hungarian authorities had taken all measures which could reasonably be expected of them in the particular circumstances of the case in order to protect the applicant ’ s physical well-being, therefore meeting the State ’ s positive obligations. 55. As to the applicant ’ s injuries, the Government wished to point out that the applicant had exaggerated the severity of the abuse suffered by her and that her allegations had not always been credible. The authorities had had to respect Gy. B. ’ s right to be presumed innocent and the principle of in dubio pro reo. As the domestic courts had had the benefit of a direct hearing, they had been in the best position to assess the credibility of the applicant ’ s allegations. 56. Lastly, the Government observed that the applicant herself had also initiated assaults against Gy.B. and had been found guilty of acts of violence towards him. The fact that in many cases she had also benefited from the principle of in dubio pro reo shows that the authorities were not prejudiced against her. 57. In sum, the Government maintained that in the above -described circumstances, no further action could reasonably have been taken by the Hungarian authorities to protect the applicant ’ s physical well-being. 2. The Court ’ s assessment (a) General principles 58. The Court reiterates that while the essential object of Article 8 is to protect the individual against arbitrary action by the public authorities, there may in addition be positive obligations inherent in effective “respect” for private and family life and these obligations may involve the adoption of measures in the sphere of the relations of individuals between themselves (see, mutatis mutandis, X and Y v. the Netherlands, 26 March 1985, §§ 22 and 23, Series A no. 91; Mikulić v. Croatia, no. 53176/99, § 57, ECHR 2002 ‑ I; and Sandra Janković v. Croatia, no. 38478/05, § 44, 5 March 2009 ). 59. As regards respect for private life, the Court has previously held, in various contexts, that the concept of private life includes a person ’ s physical and psychological integrity. Under Article 8, States have a duty to protect the physical and psychological integrity of an individual from threats by other persons. To that end they are to maintain and apply in practice an adequate legal framework affording protection against acts of violence by private individuals (see X and Y v. the Netherlands, cited above, §§ 22 and 23; Costello-Roberts v. the United Kingdom, 25 March 1993, § 36, Series A no. 247 ‑ C; and Sandra Janković, cited above, § 45). For the Court, these considerations equally apply in situations where an individual ’ s right to the enjoyment of his or home free of violent disturbance is at stake. (b) Application of the above principles to the present case 60. The main issue in the present case is whether the State complied with its positive obligation to protect the physical integrity of the applicant from the threat posed by her former common-law husband. The applicant involuntarily shares her home with this person, which is aggravated by the fact that their relationship has deteriorated to such an extent that disputes - including mutual verbal and physical assaults - occur on a regular basis. Her civil actions and criminal complaints were to no avail. 61. In this connection, the Court reiterates that there is no doubt that the events giving rise to the present application pertain to the sphere of private life within the meaning of Article 8 of the Convention. The facts outlined above show that the applicant made credible assertions that over a prolonged period of time Gy.B. presented a threat to her physical integrity in her apartment and actually attacked her on a number of occasions. In view of these facts, the Court considers that the State authorities had a positive obligation to protect the applicant from the violent behaviour of her former common-law husband exerted in her home, notwithstanding the fact that she had also been violent towards him. 62. The Court notes that the national courts instituted several sets of criminal proceedings against Gy.B. Having been found guilty on two occasions, he was released on parole and ordered to pay a fine. Two other sets of criminal proceedings for assault are pending against him. The Court is mindful of the fact that domestic courts are better placed to examine the issue before them and to ascertain the circumstances of the case, as they have the benefit of hearing the parties in person and examining the evidence. Moreover, the Court acknowledges that in a criminal case, the principle of in dubio pro reo serves as an important guarantee against arbitrary judgments. 63. The Court stresses that its task is not to take the place of the competent Hungarian authorities in determining the most appropriate methods of protecting individuals from attacks on their personal integrity, but rather to review under the Convention the decisions that those authorities have taken in the exercise of their power of appreciation (see Sandra Janković, cited above, § 46). Moreover, the Court is aware that in respect of a measure of restraint ordered against an individual, the interest of the protection of a person ’ s physical integrity conflicts with the other person ’ s right to liberty. 64. Notwithstanding the aforementioned, the Court finds it striking that the authorities needed more than one and a half years to decide on the applicant ’ s first request for a restraining order (see paragraphs 17 and 18 above). The fact that the applicant failed to appear at the first hearing and that Gy.B. requested the postponement of another hearing cannot justify the unreasonably long duration of the proceedings. The rationale of such a measure is to provide immediate or at least prompt protection for victims of violence. Even if the request is eventually dismissed, a decision should be taken without delay. The problem is further aggravated by the lack of legal deadlines for such decisions. 65. As to the dismissal of the applicant ’ s requests for a restraining order, the Court takes the view that the domestic courts failed to give sufficient reasons for their decisions. On both occasions, the courts referred to the hearings held in this matter, but apart from stating that the bad relationship was imputable to both parties and that the conditions for issuing a restraining order had not been met, they failed to put in writing the particular reasons justifying their decision. 66. The Budapest Regional Court acknowledged the risk of recidivism; however, it took the view that restraining order could not be issued as both parties were involved in the assaults. In this respect, the Court notes that if it could not be ordered in cases of mutual assaults, then the aim of providing effective protection to victims would be seriously undermined. The possibility that the victim acted in legitimate self-defence cannot be ruled out at that stage. Precisely this was established by the XX/XXI/XXIII District Court in its judgment of 6 July 2011 (see paragraph 26 above). The domestic court ’ s reasoning that a restraining order could not be issued in view of the aggrieved party ’ s involvement is therefore not acceptable. Moreover, in the case of mutually violent parties, restraining orders should be issued in respect of both parties in order to prevent contact between them. 67. The considerations above are further aggravated by the fact that the applicant falls outside the personal scope of the Act on Restraining Order due to Violence among Relatives (see paragraph 38 above). Though divorced people and former registered partners receive the same protection as married people, this is not afforded where the perpetrator is the former common-law husband and that tie was not registered with the authorities. While accepting that the legislature may legitimately seek to protect those within specific, recognised relationships, the Court observes nonetheless that the applicant was excluded from the protection of this Act. 68. Lastly, the Court must draw attention to the fact that there are three different sets of civil proceedings pending before the domestic courts concerning the apartment in question. These proceedings, namely an action initiated by the applicant to order Gy.B. to leave the apartment (see paragraph 34 above) and two sets of proceedings for the determination of ownership (see paragraphs 2 8 and 29 above) would, in theory, be capable of eradicating the root of the problem, which is the unwanted residence of Gy.B. in the flat. In light of the regular and rather violent disputes between the parties and the fact that those proceedings have been suspended since 2007 and 2008, respectively, the Court finds that the domestic courts failed to comply with their positive obligation to decide the cases within a reasonable time. 69. Having regard to the foregoing, and notwithstanding the respondent State ’ s margin of appreciation in the matter, the Court concludes that the Hungarian authorities failed to fulfil their positive obligations. 70. There has accordingly been a violation of Article 8 of the Convention. II. ALLEGED VIOLATIONS OF ARTICLES 2, 3 AND 13 OF THE CONVENTION 71. Relying on Articles 2 and 3 of the Convention, the applicant complained that the Hungarian authorities failed to take positive measures to protect her from her violent former common-law husband. Moreover, invoking Article 13 of the Convention, the applicant maintained that the remedies offered were ineffective and failed to provide sufficient protection to her. 72. The Government contested these arguments in general terms. They pointed out in particular that Article 13 of the Convention does not require that recourse to a remedy always be successful irrespective of an unfounded claim. They argued that in the present case the applicant was able to raise her arguable claims of ill-treatment before the competent authorities but her claims were not found to be justified. The remedies provided for by the Hungarian criminal law qualify as effective remedies for well-founded claims. Therefore, the Government considered that the applicant ’ s complaint under Article 13 of the Convention was manifestly ill-founded. 73. Regard being had to its finding of a violation of Article 8 of the Convention (see paragraph 70 above), the Court, while declaring these complaints admissible, does not consider it necessary to examine them separately under Articles 2, 3 or 13 of the Convention, their essence having already been dealt with in the context of Article 8. III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 74. Relying on Article 14 of the Convention, the applicant complained that the inaction of the authorities might have been based on discrimination against her on account of her Roma origin. 75. The Court observes that the applicant has failed to show that she was treated differently compared to other persons in analogous situations. There is nothing to suggest that the authorities ’ decisions were motivated by discrimination. This part of the application is thus unsubstantiated and should be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 76. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 77. The applicant claimed 1,500,000 Hungarian forints ( HUF) [1] in respect of non-pecuniary damage sustained on account of the physical and psychological suffering caused by the violation. 78. The Government found the applicant ’ s claim to be excessive. 79. The Court considers that the applicant must have sustained some non-pecuniary damage and awards her the full sum claimed, that is, EUR 5,150. B. Costs and expenses 80. The applicant did not submit a separate costs claim. C. Default interest 81. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court concluded that the Hungarian authorities had failed to fulfil their positive obligations, in violation of Article 8 (right to respect for private and family life) of the Convention. It found in particular that, even though the applicant had lodged criminal complaints against her partner for assault, had repeatedly requested restraining orders to be brought against him and had brought civil proceedings to order his eviction from the flat, the authorities had not taken sufficient measures for her effective protection. |
537 | Police brutality | II. RELEVANT DOMESTIC LAW AND PRACTICE 30. The Greek Ombudsman issued a report on 12 October 2004 entitled “Disciplinary / administrative investigations into allegations against police officers”. It stated as follows in relation to investigations into complaints raising serious issues, such as excessive use of force and/ or police brutality : “ 4. Failure to conduct Sworn Administrative Inquiry ( Ενορκη Διοικητική Εξέταση, – SAI) The fact that informal investigations are more frequently conducted - informal investigations represent some 66% of the investigations carried out in total - raises the important question whether the methods of investigation used by the Greek Police are adapted to the offences complained of. In a number of cases where an informal investigation was carried out, although the nature of the offence complained of required an SAI, the Ombudsman observed that although there were elements that would have justified disciplinary proceedings against police officers, the Greek Police refused to carry out an SAI. ... Such complaints [concerning allegations of ill-treatment or police brutality ] could not be easily rejected on the basis of an informal investigation, given that they are often substantiated with forensic examinations or other medical certificates. ... In the following examples, an SAI was not carried out although the nature of the offences required it : ( a) use of physical force: e.g. ... striking and subsequent miscarriage of a pregnant woman of Roma origin ... The Greek Ombudsman observed that the Greek Police omit, on a regular basis, to institute disciplinary proceedings even in cases where the existence of strong objective evidence, such as witness statements, photographs, forensic reports, medical certificates etc. , cannot be denied. Such evidence cannot be summarily overruled but needs to be examined thoroughly through the formal procedure of an SAI. Cases with strong evidence requiring an SAI that was never conducted: (a) forensic or medical reports: e.g. ... a pregnant woman of Roma origin suffered a miscarriage after being struck ... ” THE LAW I. ALLEGED VIOLATION OF ARTICLES 3 AND 13 OF THE CONVENTION 31. The applicant complained under Article 3 of the Convention that she had been subjected to acts of police brutality which had caused her great physical and mental suffering amounting to torture, inhuman and/or degrading treatment or punishment. She also complained under the same provision, taken together with Article 13 of the Convention, that the Greek investigating and prosecuting authorities had failed to carry out an effective and impartial official investigation into the incident which could have led to the identification and punishment of the police officers responsible. The applicant therefore claimed that she had been denied an effective domestic remedy for her sufferings. Article 3 of the Convention provides: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Article 13 of the Convention reads as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. Admissibility 32. The Government requested the Court to declare the case inadmissible as the applicant had failed to exhaust domestic remedies. In particular, they submitted that the fact that the Athens public prosecutor had closed the file with the indication “Perpetrator unknown” did not mean that the outcome of the case was definitively decided. According to domestic law, when the perpetrator of an alleged offence was not identified, the preliminary inquiry remained pending until new evidence was brought before the authorities. Thus, when the applicant was informed that the case had been closed, she should have appeared before the public prosecutor in order to testify and request the reopening of the case. By failing to do so, she had not assisted the authorities in their investigations and had not exhausted an effective remedy. 33. The applicant disagreed with the Government's objection. She argued that she had sought a criminal prosecution by lodging a complaint, but that avenue had proved ineffective. She submitted that the investigation had not been effective, and in particular that the investigating authorities had failed to take timely steps to collect evidence and identify the perpetrators. She further noted that the prosecutor had closed the file two years and five months after the incident. In the light of the ineffectiveness of the criminal investigation there had been no point in the applicant's waiting any longer before lodging an application before the Court, as in fact any delay would have entailed a serious risk of having her application before the Court rejected on the grounds that it failed to comply with the time-limit of six months. 34. The Court finds that the question of exhaustion of domestic remedies is closely linked to the merits of the applicant's complaint under Articles 3 and 13 of the Convention. Therefore, to avoid prejudging the latter, both questions should be examined together. Accordingly, the Court holds that the question of exhaustion of domestic remedies should be joined to the merits of the complaint. 35. The Court further notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The submissions of the parties 36. The applicant submitted that her miscarriage had been the result of the unnecessary and disproportionate use of force by the police officers involved in the police operation of 28 January 2002. She also complained of the failure of the investigating and prosecuting authorities to carry out a prompt, comprehensive and effective official investigation capable of leading to the identification and punishment of the police officer responsible. 37. The Government pointed out that since the miscarriage suffered by the applicant had not occurred while she was in police custody, the police authorities could not be held responsible for it. According to the Government, the presence of a judicial officer during the police operation guaranteed that no incident of police brutality could have occurred. Furthermore, the Government argued that the applicant had failed to produce a medical report stating that there were signs of physical violence on her body that could have provoked the miscarriage, such as bruises. The Government also referred to the lack of a medical examination by a forensic doctor and the applicant's failure to assist the investigating authorities. As regards the effectiveness of the investigation, the Government emphasised that the applicant had not appeared to testify before the competent judicial authority and that she was solely responsible for the fact that the Athens public prosecutor had closed the file. 2. The Court's assessment a. Concerning the alleged ill-treatment i. General principles 38. As the Court has stated on many occasions, Article 3 enshrines one of the most fundamental values of democratic societies. Even in the most difficult circumstances, such as the fight against terrorism and organised crime, the Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment. Unlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4, Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15 § 2 even in the event of a public emergency threatening the life of the nation (see Selmouni v. France [GC], no. 25803/94, § 95, ECHR 1999 ‑ V, and the Assenov and Others v. Bulgaria judgment of 28 October 1998, Reports of Judgments and Decisions 1998-VIII, p. 3288, § 93). The Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the victim's conduct (see the Chahal v. the United Kingdom judgment of 15 November 1996, Reports 1996-V, p. 1855, § 79). 39. In assessing evidence, the Court has generally applied the standard of proof “beyond reasonable doubt” (see Ireland v. the United Kingdom, judgment of 18 January 1978, Series A no. 25, pp. 64-65, § 161). However, such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in custody, strong presumptions of fact will arise in respect of injuries occurring during such detention. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII). ii. Application of those principles to the present case 40. The Court reiterates that it is not disputed that the applicant was present in the Roma settlement during the police operation and that she was admitted to hospital the following day with bleeding from her uterus. However, the circumstances under which the bleeding occurred are not entirely clear and the Court notes that there are some elements in this case which cast doubt on whether the applicant suffered treatment prohibited by Article 3. 41. Firstly, the medical report produced by the applicant only states that she was bleeding and that she suffered a miscarriage, without mentioning the existence of bruises or other injuries and without reference to reasons that may have caused the bleeding. Furthermore, the Court notes that the applicant has not produced any other cogent evidence in support of her allegations of ill-treatment, such as objective eye-witness testimonies. 42. In conclusion, since the evidence before it does not enable the Court to find beyond all reasonable doubt that the miscarriage suffered by the applicant was the result of the alleged ill-treatment inflicted by police officers, the Court considers that there is insufficient evidence for it to conclude that there has been a violation of Article 3 on account of the alleged torture. b. Concerning the alleged inadequacy of the investigation i. General principles 43. The Court reiterates that where an individual raises an arguable claim that he has been seriously ill-treated by the police in breach of Article 3, that provision, read in conjunction with the State's general duty under Article 1 of the Convention, requires by implication that there should be an effective official investigation. As with an investigation under Article 2, such investigation should be capable of leading to the identification and punishment of those responsible. Otherwise, the general legal prohibition of torture and inhuman and degrading treatment and punishment would, despite its fundamental importance, be ineffective in practice and it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity ( see Assenov and Others v. Bulgaria, cited above, p. 3290, § 102, and Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000-IV). 44. The investigation must be effective as well in the sense that it is capable of leading to a determination of whether the force used by the police was or was not justified in the circumstances ( see Kaya v. Turkey, judgment of 19 February 1998, Reports 1998-I, § 87, and Corsacov v. Moldova, no. 18944/02, § 69, 4 April 2006 ). 45. The investigation into arguable allegations of ill-treatment must also be thorough. This means that the authorities must make serious attempts to find out what happened and should not rely on hasty or ill-founded conclusions to close their investigation or as the basis of their decisions (see Assenov and Others, cited above, p. 3290, §§ 103 et seq.). They must take all reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony and forensic evidence (see Tanrıkulu v. Turkey [GC], no. 23763/94, ECHR 1999-IV, §§ 104 et seq., and Gül v. Turkey, no. 22676/93, § 89, 14 December 2000 ). 46. The procedural limb of Article 3 is invoked, in particular, where the Court is unable to reach any conclusions as to whether there has been treatment prohibited by Article 3 of the Convention, deriving, at least in part, from the failure of the authorities to react effectively to such complaints at the relevant time (see Khashiyev and Akayeva v. Russia, nos. 57942/00 and 57945/00, § 178, 24 February 2005 ). ii. Application of those principles to the present case 47. The Court considers at the outset that the medical evidence and the applicant's complaints, which were both submitted to the competent domestic authorities, created at least a reasonable suspicion that her miscarriage might have been caused by excessive use of force. As such, her complaints constituted an arguable claim in respect of which the Greek authorities were under an obligation to conduct an effective investigation. 48. As regards the present case, the Court observes that two separate sets of proceedings were conducted: criminal proceedings against the unknown perpetrators on the applicant's initiative and an administrative informal investigation following the publicity given to the incident. However, the Court is not persuaded that those proceedings were sufficiently thorough and effective to meet the above requirements of Article 3. 49. In particular, concerning the criminal proceedings, the Court notes some discrepancies capable of undermining their reliability and effectiveness. Firstly, the Court notes that contrary to its established case-law, the preliminary inquiry launched into the applicant's allegations was conducted by police officers serving in the same police station as the ones who had participated in the police operation in question, even though the applicant had requested that they be excluded (see, mutatis mutandis, Oğur v. Turkey [GC], no 21594/93, §§ 91-92, ECHR 1999 - III). 50. Secondly, the Court observes omissions as to the assessment of evidence by the investigating authority. In particular, the only witnesses examined were two members of the Greek Monitor Helsinki and two police officers. Moreover, the authorities omitted to take into account the medical report produced by the applicant and they did not order a forensic examination with a view to establishing the injury sustained by the applicant, despite the latter's request. The Government relied on the lack of such a medical examination to claim that the applicant's allegations were unsubstantiated; however, in the Court's view, it is the investigating authorities'obligation to take whatever reasonable steps they can to secure the evidence concerning the incident, including, inter alia, a detailed statement concerning the allegations from the alleged victim, eyewitness testimony, forensic evidence and, where appropriate, additional medical certificates apt to provide a full and accurate record of the injuries and an objective analysis of the medical findings, in particular as regards the cause of the injuries ( see Batı and Others v. Turkey, nos. 33097/96 and 57834/0 0, § 134, ECHR 2004 ‑ IV ). Any deficiency in the investigation which undermines its ability to establish the cause of injury or the person responsible will risk falling foul of this standard and could not in any event be imputable to the applicant. 51. Moreover, the Court is further struck by the fact that the case was closed because the authorities could not locate the applicant even though her lawyers'contact details had been previously communicated to them. The Court cannot agree with the Government that the applicant was the only person responsible for the preliminary inquiry's failing to identify the perpetrator because she had not assisted the investigating authorities. Having regard to its case-law, the Court cannot accept the submission that the progress and the effectiveness of proceedings concerning allegations of ill-treatment could depend entirely on the victim's conduct. 52. Finally, the Court notes that the criminal proceedings as a whole were very slow, with long periods of inactivity. In particular, it observes that on 28 November 2002, that is to say, ten months after the complaint was lodged, the investigation file containing the testimony of four witnesses was forwarded to the Athens public prosecutor. It took the prosecutor almost a year to request the competent judicial authority to summon the applicant to testify. However, it was not until four months later that the court bailiff visited the settlement in order to summon the applicant to testify. Finally, on 3 July 2004, two years and five months after the complaint was lodged, the Athens public prosecutor closed the file without carrying out any further inquiries. In view of this substantial delay in the conduct of the preliminary inquiry, the Court finds that the Greek authorities cannot be considered to have acted with sufficient promptness or with reasonable diligence, with the result that the perpetrator of alleged acts of violence remained unidentified. 53. As far as the administrative proceedings are concerned, the Court observes that despite the seriousness of the applicant's allegations, the authorities did not consider it necessary to conduct a sworn administrative inquiry (see the report issued by the Greek Ombudsman in Relevant domestic Law and practice ). On the contrary, they conducted an informal investigation that ended in less than one day and was carried out by the Deputy Director of Police, who had been actively involved in the police operation in question. It is apparent from the relevant report that the agent based his conclusions on the testimonies given by five police officers involved in the incident. Neither the applicant nor any of the other alleged victims of police brutality were examined. 54. In the light of the above-mentioned shortcomings in the administrative and judicial investigations, the Court concludes that they were not effective. The Court rejects, therefore, the Government's objection based on exhaustion of domestic remedies (see paragraphs 32 - 34 above), and holds that there has been a violation of Article 3 of the Convention under its procedural limb, in that both investigations into the alleged ill-treatment were ineffective. 55. Lastly, the Court considers that, in view of the grounds on which it has found a violation of Article 3 in relation to its procedural aspect, there is no need to examine separately the complaint under Article 13 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 14 IN CONJUNCTION WITH ARTICLE 3 OF THE CONVENTION 56. The applicant further complained that the ill-treatment she had suffered and the subsequent lack of an effective investigation into the incident were in part due to her Roma ethnic origin. She alleged a violation of Article 14 of the Convention, which provides: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” 57. The Government contested that argument. A. Admissibility 58. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The submissions of the parties 59. The applicant argued that the police officers'and the judicial authorities'perception of her as a Roma (Gypsy) had been a decisive factor in their attitude and acts. 60. The Government pointed out that the Court had always required “proof beyond reasonable doubt” and that in the present case there was no evidence of any racially motivated act on the part of the authorities. 2. The Court's assessment 61. Discrimination is treating differently, without an objective and reasonable justification, persons in relevantly similar situations (see Willis v. the United Kingdom, no. 36042/97, § 48, ECHR 2002-IV). Racial violence is a particular affront to human dignity and, in view of its perilous consequences, requires from the authorities special vigilance and a vigorous reaction. It is for this reason that the authorities must use all available means to combat racism and racist violence, thereby reinforcing democracy's vision of a society in which diversity is not perceived as a threat but as a source of its enrichment (see Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 145, ECHR 2005 ‑ VII). 62. The Court recalls that when investigating violent incidents, State authorities have the additional duty to take all reasonable steps to unmask any racist motive and to establish whether or not ethnic hatred or prejudice may have played a role in the events. Admittedly, proving racial motivation will often be extremely difficult in practice. The respondent State's obligation to investigate possible racist overtones to a violent act is an obligation to use best endeavours and not absolute; the authorities must do what is reasonable in the circumstances of the case (see Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 160, ECHR 2005 ‑ VII.). 63. Turning to the present case, the Court's task is to establish whether in carrying out the investigation into the applicant's allegation of ill-treatment by the police, the domestic authorities discriminated against the applicant and if so, whether the discrimination was based on her ethnic origin. 64. In this respect, the Court considers unacceptable that not only was there no attempt on the part of the investigating authorities to verify whether the behaviour of the policemen involved in the incident displayed anti-Roma sentiment, but the Deputy Director of Police made tendentious general remarks in relation to the applicant's Roma origin throughout the administrative investigation. 65. In particular, the Court is struck by the report on the findings of the informal administrative investigation. It considers that the general assertion that complaints raised by Roma were exaggerated and formed part of their “common tactic to resort to the extreme slandering of police officers with the obvious purpose of weakening any form of police control” discloses a general discriminatory attitude on the part of the authorities which reinforced the applicant's belief that the lack of an effective investigation into the incident was due to her Roma ethnic origin. No justification was advanced by the Government with regard to these remarks. 66. Having regard to all the elements above, the Court finds that the failure of the authorities to investigate possible racial motives for the applicant's ill-treatment, combined with their attitude during the investigation, constitutes discrimination with regard to the applicant's rights which is contrary to Article 14 taken in conjunction with Article 3 in its procedural limb. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 67. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 68. The applicant claimed EUR 25,000 in respect of the physical, psychological and emotional pain she had suffered. 69. The Government argued that the amount claimed was excessive and disproportionate on the basis of the criteria established by the Court's case-law. 70. The Court considers that the applicant undoubtedly suffered non-pecuniary damage which cannot be compensated solely by the findings of violations. Having regard to the specific circumstances of the case and ruling on an equitable basis, the Court awards EUR 2 0 ,000 under this head, plus any tax that may be chargeable on that amount. B. Costs and expenses 71. The applicant also claimed EUR 1, 000 for the costs and expenses incurred before the Court, in respect of which a bill of costs was produced. 72. The Government did not agree with the amount claimed, stating, inter alia, that it was excessive. 73. According to the Court's settled case-law, costs and expenses will not be awarded under Article 41 unless it is established that they were actually and necessarily incurred and were also reasonable as to quantum (see, for example, Sahin v. Germany [GC], no. 30943/96, § 105, ECHR 2003-VIII). 74. In the present case, regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 1,000 covering costs for the proceedings before the Court. C. Default interest 75. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been no violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention concerning the alleged ill-treatment, since the evidence before it did not enable it to find beyond all reasonable doubt that the applicant’s miscarriage had been the result of police brutality. The Court further held that there had been a violation of Article 3 of the Convention on account of the lack of an effective investigation into the applicant’s allegations. The Court lastly found that the failure of the Greek authorities to investigate possible racial motives behind the applicant’s ill-treatment, combined with the generally partial attitude throughout the investigation, had constituted discrimination, in violation of Article 14 (prohibition of discrimination) of the Convention taken in conjunction with Article 3. |
498 | Employment health-insurance coverage | RELEVANT LEGAL FRAMEWORK AND PRACTICE Relevant domestic law AND PRACTICE 24. The relevant provisions of the Constitution of the Republic of Croatia ( Ustav Republike Hrvatske, Official Gazette no. 56/90 with subsequent amendments) read as follows: Article 14 “All persons in the Republic of Croatia shall enjoy rights and freedoms, regardless of race, colour, gender, language, religion, political or other opinion, national or social origin, property, birth, education, social status or other status.” Article 62 “The state shall protect maternity....” Article 64 § 3 “Young people, mothers ... shall be entitled to special protection at work.” 25. The relevant provisions of the Labour Act ( Zakon o radu, Official Gazette no. 38/95 with subsequent amendments) read as follows: Section 3(2) “All measures regulated by this law ... and by the employment contract, relating to the special protection of certain categories of employees, and in particular those concerning the protection of ... pregnant women ..., shall not be considered discriminatory, nor can they be the basis for discrimination.” Section 7(1) “The person providing employment (hereinafter ‘the employer’) is under an obligation to assign tasks to the employee and to pay his or her salary for the work performed; the employee is under an obligation to personally perform the assigned work, complying with the instructions given by the employer in accordance with the nature and the type of work.” Section 64 “1. The employer may not, on grounds of pregnancy, refuse to employ a woman, dismiss her or transfer her to another position, save in accordance with section 65 of this Act [which provides for temporary transfer at the pregnant woman’s own request or following the decision of employer if so required by her health condition]. 2. The employer may not request any information concerning a woman’s pregnancy or instruct another person to request such information...” 26. The relevant provisions of the Compulsory Health Insurance Act ( Zakon o obveznom zdravstvenom osiguranju, Official Gazette nos. 150/08, 94/09 and 153/09), in force at the material time, read as follows: Section 26 “An insured person shall be entitled to salary compensation in relation to the use of health care under compulsory health insurance, or other circumstances provided for in this Act, if he/she is: ... 3. isolated as a carrier or due to an outbreak of contagion in his/her environment, or temporarily incapacitated for work as a result of donating live tissue or organs for transplantation to another insured person of the Fund, 4. designated to accompany the insured person referred for treatment or medical examination provided by an entity contracted with the Fund outside the place of domicile or residence of the insured person being referred, 5. designated to care for a sick child or spouse, under conditions prescribed by this Act, 6. temporarily incapacitated for work due to pregnancy- and childbirth-related illness and complications, 7. temporarily prevented from working on account of taking maternity leave and the right to work half-time, in accordance with section 15(2) and (3) of the Act on maternity and parental allowance, 8. temporarily incapacitated for work on account of using leave for the death of a child, birth of a stillborn child or the death of a child during maternity leave, ...” Section 28 “1. Salary compensation from section 26, items 3 to 8 of this Act shall be paid to the insured person by the Fund from the first day of the use of that right...” Section 42 “(2) Salary compensation shall be 100 % of the [calculation] base during: ... 2. sick leave due to pregnancy- and childbirth-related illness and complications, ...” Section 43 “1. Salary compensation paid by the Fund shall be payable ... provided that, prior to the date of occurrence of the insured event giving rise to the entitlement to salary compensation, the insured person had ...[been] employed or ... pursu[ed] economic activity or a professional activity independently ..., or ... receiv[ed] salary compensation pursuant to this Act after the termination of employment ..., [for] a period of insurance with the Fund of at least 12 months without interruption or 18 months with interruptions in the past two years (prior insurance)...” Section 104 “1. The status of insured persons shall be determined by the Fund on the basis of applications for compulsory health insurance filed in accordance with the provisions of this Act by persons paying contributions ... 2. Applications to register with the compulsory health insurance scheme or to change or terminate registration shall be filed within 15 days from the date of creation, change or termination of the circumstances giving rise to the status of insured person...” Section 106 “1. Following receipt of the application to register for compulsory health insurance, and for the entire duration of the insured person’s status, the Fund shall have the right and obligation to verify the circumstances on the basis of which the application was made, or on which an individual’s status has been recognised. 2. At the request of the Fund, all natural and legal persons who have submitted an application to register for compulsory health insurance ... have to produce all facts and evidence proving the validity of their registration, or the validity of the status of insured person. 3. If the Fund refuses an application for registration, establishes that the insured person is to be insured on a different ground, or disputes the status of a person insured with the compulsory health insurance scheme owing to the absence of a factual basis for such status, it shall issue a decision which will be served on the person who sought registration ...” 27. The relevant provisions of the Regulations on rights, conditions and method of enjoyment of rights from compulsory health insurance ( Pravilnik o pravilima, uvjetima i načinu ostvarivanja prava iz obveznog zdravstvenog osiguranja, Official Gazette no. 67/09), as in force at the material time, read as follows: Section 6 “2. Any registration [with the Fund] must be based on true facts and existence of actual circumstances which give the right to obtaining compulsory health insurance, and the Fund is entitled and required to, in line with these Regulations, upon receipt of the registration and throughout the duration of the status of the insured person, to verify the existence of the circumstances under which the application was filed and/or the basis on which the person is recognised the status of an insured person. 3. Should such verification result in establishing that the circumstances required to obtain the status [of an insured person] ... do not exist or... that the registration is based on false information, the Fund shall reject the latter or reopen the proceedings in order to establish the insured person’s status ...” 28. The relevant provisions of the Prevention of Discrimination Act ( Zakon o suzbijanju diskriminacije, Official Gazette no. 85/2008) provide as follows: Section 1 “(1) This Act ensures the protection and promotion of equality as the highest value of the constitutional order of the Republic of Croatia; creates conditions for equal opportunities and regulates protection against discrimination on the basis of race or ethnic origin or skin colour, gender, language, religion, political or other conviction, national or social origin, state of wealth, membership of a trade union, education, social status, marital or family status, age, health, disability, genetic inheritance, gender identity, expression or sexual orientation. (2) Discrimination within the meaning of this Act means putting any person in a disadvantageous position on any of the grounds under subsection (1) of this section, as well as his or her close relatives. ...” Section 16(1) “Anyone who considers that, owing to discrimination, any of his or her rights has been violated may seek protection of that right in proceedings in which the determination of that right is the main issue, and may also seek protection in separate proceedings under section 17 of this Act.” Section 17 “(1) A person who claims that he or she has been a victim of discrimination in accordance with the provisions of this Act may bring a claim and seek: 1. a ruling that the defendant has violated the plaintiff’s right to equal treatment or that an act or omission by the defendant may lead to the violation of the plaintiff’s right to equal treatment (claim for an acknowledgment of discrimination); 2. a ban on [the defendant’s] undertaking acts which violate or may violate the plaintiff’s right to equal treatment or an order for measures aimed at removing discrimination or its consequences to be taken (claim for a ban or for removal of discrimination); 3. compensation for pecuniary and non-pecuniary damage caused by the violation of the rights protected by this Act (claim for damages); 4. an order for a judgment finding a violation of the right to equal treatment to be published in the media at the defendant’s expense.” 29. The relevant provisions of the Gender Equality Act ( Zakon o ravnopravnosti spolova, Official Gazette nos. 82/08 and 69/17) read as follows: Section 6 “(1) Discrimination on the grounds of sex...: any difference, exclusion or restriction made on the grounds of sex with the effect or purpose to jeopardise or frustrate recognising, benefiting from or exercising human rights and fundamental freedoms in the political, social, cultural, economic, civil or other area on the grounds of equality between men and women, education, economic, social, cultural, civil and any other sphere of life. (2) ... Less favourable treatment of women for reasons of pregnancy and maternity shall be deemed to be discrimination...” Section 9 “(3) Measures aimed at protecting women, in particular in relation to pregnancy and maternity, shall not be deemed to be discrimination.” Section 13 (1) There shall be no discrimination in the field of employment and occupation in the public or private sector, including public bodies, in relation to: ... 7. pregnancy, giving birth, parenting and any form of custody..”. 30. The Government have submitted the following judgments of the (High) Administrative Court, in which pregnant women have been considered to have entered into fictitious employment during their pregnancies: - Us-4154/2006-4 of 4 February 2009, in which a pregnant woman concluded an employment contract for cleaning services three months before her delivery date; - Us-9890/2005-6 of 5 February 2009, in which a pregnant woman concluded an employment contract four months before her delivery date and was found unfit to work as a salesperson due to a pre-existing medical condition; - Us-3136/2003-4 of 11 July 2007, in which a pregnant woman concluded an employment contract, went on pregnancy-related sick leave and only thereafter filed the requisite registration with the Fund; - Us-10040/2002-4 of 29 November 2006, in which a pregnant woman had first been employed a month before her delivery date; - Us-2885/2006 of 4 December 2008, in which a pregnant woman had been employed by her mother late in her high-risk pregnancy; - Us-2953/2006 of 11 December 2008, in which a pregnant woman concluded an employment contract 17 days before her departure on obligatory maternity leave; - Us-2955/2006-5 of 11 December 2008, in which a pregnant woman concluded an employment contract three days before her departure on maternity leave; - Us-5531/2006-4 of 12 March 2009, in which a pregnant woman submitted her application for registration as an employed person the day after she had given birth to her third child; - Us-9223/2002-4 of 28 December 2006, in which a pregnant woman had concluded an employment contract when she was 35 weeks pregnant for a job that required hours of standing, bending over and carrying; - Us-1464/2006-6 of 20 November 2008, in which a pregnant woman had concluded an employment contract when she was 36 weeks pregnant; - Us-2958/2006-5 of 11 December 2008, in which a pregnant woman concluded an employment contract with her mother and 20 days later went on pregnancy-related sick leave. 31. The Government have also submitted the following judgments of the (High) Administrative Court, in which the employment entered into by a woman during pregnancy had not been found fictitious. In judgment Us-6545/2002-9 of 5 October 2006 the court concluded that the administrative authorities had failed to established whether or not a pregnant woman had actually started performing her employment tasks. In judgment Us-11891/2005-4 of 28 May 2009, the court, insofar as relevant, held as follows: “[The competent authority] doubted the claimant’s application for insurance based on employment and in such a case it should have primarily established whether the claimant actually worked on the basis of the concluded employment contract. That means that the [competent authority] should have established whether there had been elements of an employment relationship, e.g. working hours and salary, and in particular whether the claimant had started working and how much she had worked. The [competent authority] did not establish any of the foregoing, but instead based its decision on the conclusion that the claimant had been unfit to work on the day of entering into employment, which fact in this court’s opinion has not been correctly established. This is because [the competent authorities] based [their decisions] essentially on the assumption that the claimant had been unfit to work because she had been at an advanced stage of her pregnancy, because it had been her sixth pregnancy and because she was an older pregnant woman. This opinion, however, is not based on any specialist opinion on the basis of which it could have actually been established whether the claimant had been fit to work...” In judgment Us-6588/2005-5 of 5 June 2008 a pregnant woman concluded an employment contract with her father in law at an advanced stage of pregnancy and the medical expert opinion concluded that she had been medically fit for work. 32. The relevant part of the 2012 Annual report of the Gender Equality Ombudsperson, published in March 2013, read as follows: “For several years now, the Ombudsperson has been regularly warning about the discriminatory practice developed by the Croatian Health Insurance Fund throughout the last decade, which it consistently applies to pregnant women despite frequent warnings about its unlawfulness. That discriminatory practice is based on the Fund’s stereotypical attitude that a woman who had entered employment at an advanced stage of pregnancy... irrefutably concluded a fictitious employment contract aimed at abusing the health insurance system. The Fund in such cases appropriates itself judicial functions and declares such a contract fictitious even when the Croatian Employment Fund considers such an employment contract formally valid... Once it takes the stance that a pregnant woman’s employment contract is fictitious, it automatically deprives her of the status of an employed insured person and denies her the right to compensation of salary during sick leave for pregnancy-related complications and the right to birth allowances during maternity leave. This practice, based on the stereotype that women during their pregnancies... enter employment with fraudulent intentions, is contrary to the Gender Equality Act and the Labour Act and is insulting to the dignity of pregnant women. In order to ensure that the Fund changes the said practice, the Ombudsperson did not only send a number of warnings based on discrimination complaints of women, but also decided to act proactively and organised a meeting on 9 October 2012 with the representatives of the Ministry of Health, Ministry of social politics and youth and the Fund. This led to the conclusion that the said practice of the Fund was indeed problematic from the point of view of the protection of social rights of pregnant women, following which the Minister of Health in October requested the Fund to take steps in order to implement the agreement reached and subsequently inform the Ombudsperson about the actions taken. The Ombudsperson wishes to stress in the report that the Fund on 25 March 2013 accepted her recommendations and stated in its letter that ‘regional offices [of the Fund] have been instructed that, in proceedings concerning recognition of status in compulsory health insurance on the basis of employment, they may only assess whether the employment relationship at issue has been validly concluded – [i.e. whether formal requirements have been fulfilled] – but not whether the employment relationship is legally valid. In cases of doubt as to the legality of an employment relationship, it is necessary to institute civil proceedings which would establish the validity of the employment’.” RELEVANT LAW AND PRACTICE OF THE EUROPEAN UNIONDirectives of the Council of the European Union Directives of the Council of the European Union Directives of the Council of the European Union 33. The relevant provisions of Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding, read as follows: “Whereas the risk of dismissal for reasons associated with their condition may have harmful effects on the physical and mental state of pregnant workers, workers who have recently given birth or who are breastfeeding; whereas provision should be made for such dismissal to be prohibited; ... Whereas, moreover, provision concerning maternity leave would also serve no purpose unless accompanied by the maintenance of rights linked to the employment contract and or entitlement to an adequate allowance; ... Article 10 Prohibition of dismissal In order to guarantee workers, within the meaning of Article 2, the exercise of their health and safety protection rights as recognized under this Article, it shall be provided that: 1. Member States shall take the necessary measures to prohibit the dismissal of workers, within the meaning of Article 2, during the period from the beginning of their pregnancy to the end of the maternity leave referred to in Article 8 (1), save in exceptional cases not connected with their condition which are permitted under national legislation and/or practice and, where applicable, provided that the competent authority has given its consent; 2. if a worker, within the meaning of Article 2, is dismissed during the period referred to in point 1, the employer must cite duly substantiated grounds for her dismissal in writing; 3. Member States shall take the necessary measures to protect workers, within the meaning of Article 2, from consequences of dismissal which is unlawful by virtue of point 1.” 34. The relevant provisions of Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast) (which repealed Directive 76/207/EEC) read as follows: “Whereas: ... 23. It is clear from the case-law of the Court of Justice that unfavourable treatment of a woman related to pregnancy or maternity constitutes direct discrimination on grounds of sex. Such treatment should therefore be expressly covered by this Directive. 24. The Court of Justice has consistently recognised the legitimacy, as regards the principle of equal treatment, of protecting a woman’s biological condition during pregnancy and maternity and of introducing maternity protection measures as a means to achieve substantive equality. This Directive should therefore be without prejudice to Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding. This Directive should further be without prejudice to Council Directive 96/34/EC of 3 June 1996 on the framework agreement on parental leave concluded by UNICE, CEEP and the ETUC. 25. For reasons of clarity, it is also appropriate to make express provision for the protection of the employment rights of women on maternity leave and in particular their right to return to the same or an equivalent post, to suffer no detriment in their terms and conditions as a result of taking such leave and to benefit from any improvement in working conditions to which they would have been entitled during their absence ...” Article 29 Gender mainstreaming “Member States shall actively take into account the objective of equality between men and women when formulating and implementing laws, regulations, administrative provisions, policies and activities in the areas referred to in this Directive.” Case-law of the Court of Justice of the European Union 35. In its case-law, the Court of Justice of the European Union (hereinafter, “the CJEU”) established that, as only women could become pregnant, a refusal to employ a pregnant woman based on her pregnancy or her maternity, or the dismissal of a pregnant woman on such grounds, amounted to direct discrimination on grounds of sex, which could not be justified by any other interest. 36. In the Dekker judgment (8 November 1990, C ‑ 177/88, ECLI:EU:C:1990:383), the CJEU ruled that a refusal to employ a woman who met the conditions for a post because she was pregnant constituted direct discrimination on grounds of sex. The applicant in the Dekker case applied for the post, was considered the most suitable candidate, but ultimately was not hired because she was pregnant. The employer argued that, in accordance with the law, she was not eligible to be paid pregnancy benefits by the relevant insurer, and thus the employer would have to pay those benefits during her maternity leave. As a result, the employer would be unable to afford to employ a replacement during her absence, and would thus be short-staffed. The CJEU found as follows. “12 In that regard it should be observed that only women can be refused employment on grounds of pregnancy and such a refusal therefore constitutes direct discrimination on grounds of sex. A refusal of employment on account of the financial consequences of absence due to pregnancy must be regarded as based, essentially, on the fact of pregnancy. Such discrimination cannot be justified on grounds relating to the financial loss which an employer who appointed a pregnant woman would suffer for the duration of her maternity leave.” 37. The CJEU further held that any unfavourable treatment directly or indirectly connected to pregnancy or maternity constituted direct sex discrimination. In the Webb judgment (14 July 1994, C-32/93, ECLI:EU:C:1994:300), the CJEU found that the situation of a pregnant woman could not be compared with that of a man who was absent because of illness. The applicant in the Webb case found out that she was pregnant a few weeks after being hired to replace a worker who had herself become pregnant. She was dismissed as soon as the employer found out about her pregnancy. The CJEU ruled as follows: “24 First, in response to the House of Lords’ inquiry, there can be no question of comparing the situation of a woman who finds herself incapable, by reason of pregnancy discovered very shortly after the conclusion of the employment contract, of performing the task for which she was recruited with that of a man similarly incapable for medical or other reasons. 25 As Mrs Webb rightly argues, pregnancy is not in any way comparable with a pathological condition, and even less so with unavailability for work on non-medical grounds, both of which are situations that may justify the dismissal of a woman without discriminating on grounds of sex. Moreover, in the Hertz judgment, cited above, the Court drew a clear distinction between pregnancy and illness, even where the illness is attributable to pregnancy but manifests itself after the maternity leave. As the Court pointed out (in paragraph 16), there is no reason to distinguish such an illness from any other illness. 26 Furthermore, contrary to the submission of the United Kingdom, dismissal of a pregnant woman recruited for an indefinite period cannot be justified on grounds relating to her inability to fulfil a fundamental condition of her employment contract. The availability of an employee is necessarily, for the employer, a precondition for the proper performance of the employment contract. However, the protection afforded by Community law to a woman during pregnancy and after childbirth cannot be dependent on whether her presence at work during maternity is essential to the proper functioning of the undertaking in which she is employed. Any contrary interpretation would render ineffective the provisions of the directive. 27 In circumstances such as those of Mrs Webb, termination of a contract for an indefinite period on grounds of the woman’s pregnancy cannot be justified by the fact that she is prevented, on a purely temporary basis, from performing the work for which she has been engaged ...” 38. In the Tele Danmark judgment (4 October 2001, C-109/00, ECLI:EU:C:2001:513), the CJEU extended the protection for absence due to pregnancy to temporary contracts. The applicant was recruited for a six ‑ month fixed period. She failed to inform the employer that she was pregnant, even though she was aware of this when the contract was concluded. Because of her pregnancy, she was unable to work during a substantial part of the term of that contract. The relevant parts of the judgment read as follows: “29 In paragraph 26 of Webb, the Court also held that, while the availability of an employee is necessarily, for the employer, a precondition for the proper performance of the employment contract, the protection afforded by Community law to a woman during pregnancy and after childbirth cannot be dependent on whether her presence at work during the period corresponding to maternity leave is essential to the proper functioning of the undertaking in which she is employed. A contrary interpretation would render ineffective the provisions of Directive 76/207. 30 Such an interpretation cannot be altered by the fact that the contract of employment was concluded for a fixed term. 31 Since the dismissal of a worker on account of pregnancy constitutes direct discrimination on grounds of sex, whatever the nature and extent of the economic loss incurred by the employer as a result of her absence because of pregnancy, whether the contract of employment was concluded for a fixed or an indefinite period has no bearing on the discriminatory character of the dismissal. In either case the employee’s inability to perform her contract of employment is due to pregnancy. 32 Moreover, the duration of an employment relationship is a particularly uncertain element of the relationship in that, even if the worker is recruited under a fixed term contract, such a relationship may be for a longer or shorter period, and is moreover liable to be renewed or extended.” 39. With regard to the possibility of a female worker being dismissed by reason of a pregnancy-related illness which arose prior to her maternity leave, the CJEU has held that, although pregnancy is in no way comparable to a pathological condition, it is a period during which disorders and complications may arise compelling a woman to undergo strict medical supervision and, in some cases, to rest absolutely for all or part of her pregnancy. In Brown (Case C-394/96, 30 June 1998, ECLI:EU:C:1998:331) the CJEU found that those disorders and complications, which could cause incapacity for work, formed part of the risks inherent in the condition of pregnancy and were thus a specific feature of that condition. 40. In McKenna (Case C-191/03, 8 September 2005, ECLI:EU:C:2005:513) the CJEU concluded that Community law did not require the maintenance of full pay for a female worker who is absent during her pregnancy by reason of an illness related to that pregnancy. During an absence resulting from such an illness, a female worker may thus suffer a reduction in her pay, provided that she is treated in the same way as a male worker who is absent on grounds of illness, and provided that the amount of payment made is not so low as to undermine the objective of protecting pregnant workers. 41. In Mayr (28 February 2008, C-506/06, ECLI:EU:C:2008:119), the CJEU held as follows: “49 The Court has already held that, given that male and female workers are equally exposed to illness, if a female worker is dismissed on account of absence due to illness in the same circumstances as a man then there is no direct discrimination on grounds of sex... 50 It is true that workers of both sexes can be temporarily prevented from carrying out their work on account of the medical treatment they must receive. Nevertheless, the treatment in question in the main proceedings – namely a follicular puncture and the transfer to the woman’s uterus of the ova removed by way of that follicular puncture immediately after their fertilisation – directly affects only women. It follows that the dismissal of a female worker essentially because she is undergoing that important stage of in vitro fertilisation treatment constitutes direct discrimination on grounds of sex.” Relevant international materials 42. The relevant parts of the United Nations Convention on the Elimination of All Forms of Discrimination against Women (“the CEDAW”), which was ratified by the respondent State on 9 September 1992, read as follows: Article 5 “States Parties shall take all appropriate measures: (a) To modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women...” Article 11 “1. States Parties shall take all appropriate measures to eliminate discrimination against women in the field of employment in order to ensure, on a basis of equality of men and women, the same rights, in particular: (a) The right to work as an inalienable right of all human beings; ... (e) The right to social security, particularly in cases of retirement, unemployment, sickness, invalidity and old age and other incapacity to work, as well as the right to paid leave; (f) The right to protection of health and to safety in working conditions, including the safeguarding of the function of reproduction. 2. In order to prevent discrimination against women on the grounds of ... maternity and to ensure their effective right to work, States Parties shall take appropriate measures: (a) To prohibit, subject to the imposition of sanctions, dismissal on the grounds of pregnancy or of maternity leave ...; (b) To introduce maternity leave with pay or with comparable social benefits without loss of former employment, seniority or social allowances; ...” 43. The relevant provisions of the Maternity Protection Convention 2000 (No. 183), adopted by the General Conference of the International Labour Organisation (ILO) on 15 June 2000, read as follows: Benefits Article 6 “1. Cash benefits shall be provided, in accordance with national laws and regulations, or in any other manner consistent with national practice, to women who are absent from work on leave referred to in Articles 4 or 5 [maternity leave and leave in case of illness or complications]. ... 5. Each Member shall ensure that the conditions to qualify for cash benefits can be satisfied by a large majority of the women to whom this Convention applies. ... 8. In order to protect the situation of women in the labour market, benefits in respect of the leave referred to in Articles 4 and 5 shall be provided through compulsory social insurance or public funds, or in a manner determined by national law and practice. An employer shall not be individually liable for the direct cost of any such monetary benefit to a woman employed by him or her without that employer’s specific agreement except where: (a) such is provided for in national law or practice in a member State prior to the date of adoption of this Convention by the International Labour Conference; or (b) it is subsequently agreed at the national level by the government and the representative organizations of employers and workers.” Employment protection and non-discrimination Article 8 “1. It shall be unlawful for an employer to terminate the employment of a woman during her pregnancy or absence on leave referred to in Articles 4 or 5 or during a period following her return to work to be prescribed by national laws or regulations, except on grounds unrelated to the pregnancy or birth of the child and its consequences or nursing. The burden of proving that the reasons for dismissal are unrelated to pregnancy or childbirth and its consequences or nursing shall rest on the employer. 2. A woman is guaranteed the right to return to the same position or an equivalent position paid at the same rate at the end of her maternity leave.” 44. Article 12 § 1 of the Convention on Preventing and Combating Violence against Women and Domestic Violence (“the Istanbul Convention”), which entered into force in respect of the respondent State on 1 October 2018, provides as follows: “Parties shall take the necessary measures to promote changes in the social and cultural patterns of behaviour of women and men with a view to eradicating prejudices, customs, traditions and all other practices which are based on the idea of the inferiority of women or on stereotyped roles for women and men.” 45. The relevant parts of the Appendix to the Council of Europe’s Committee of Ministers’ Recommendation Rec(2019)1 on preventing and combating sexism, adopted on 27 March 2019, reads as follows: “For the purpose of this Recommendation, sexism is: Any act, gesture, visual representation, spoken or written words, practice or behaviour based upon the idea that a person or a group of persons is inferior because of their sex, which occurs in the public or private sphere, whether online or offline, with the purpose or effect of: ... v. maintaining and reinforcing gender stereotypes.” THE LAW ALLEGED VIOLATION OF ARTICLE 14 taken IN CONJUNCTION WITH ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION 46. The applicant complained that she had been discriminated against, as a pregnant woman who had undergone in vitro fertilisation, in the revocation of her status as an insured employee, contrary to Article 14 of the Convention read in conjunction with Article 1 of Protocol No. 1 to the Convention. Those provisions read as follows: Article 14 “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” Article 1 of Protocol No. 1 “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” Admissibility 47. The Government submitted that the applicant had not exhausted domestic remedies in that she had failed to institute separate civil proceedings for damages under the Prevention of Discrimination Act. 48. The applicant disagreed. 49. The Court reiterates that under Article 35 § 1 of the Convention, it may only deal with an application after all domestic remedies have been exhausted. States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system, and those who wish to invoke the supervisory jurisdiction of the Court as concerns complaints against a State are thus obliged to use first the remedies provided by the national legal system. The obligation to exhaust domestic remedies therefore requires an applicant to make normal use of remedies which are available and sufficient in respect of his or her Convention grievances. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness (see Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 70-71, 25 March 2014, and Gherghina v. Romania (dec.) [GC], no. 42219/07, § 85, 9 July 2015). 50. Article 35 § 1 also requires that the complaints intended to be made subsequently in Strasbourg should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law and, further, that any procedural means that might prevent a breach of the Convention should have been used (see Vučković and Others, cited above, § 72). 51. However, in the event of there being a number of domestic remedies which an individual can pursue, that person is entitled to choose a remedy which addresses his or her essential grievance. In other words, when a remedy has been pursued, use of another remedy which has essentially the same objective is not required (see T.W. v. Malta [GC], no. 25644/94, § 34, 29 April 1999; Moreira Barbosa v. Portugal (dec.), no. 65681/01, ECHR 2004-V; Jeličić v. Bosnia and Herzegovina (dec.), no. 41183/02, ECHR 2005-XII; and Jasinskis v. Latvia, no. 45744/08, § 50, 21 December 2010). 52. In previous cases against Croatia, the Court has already established that the Prevention of Discrimination Act provides two alternative avenues through which an individual can seek protection from discrimination: the individual concerned may either raise his or her discrimination complaint in the proceedings concerning the main subject matter of a dispute, or opt for separate civil proceedings, as provided for under section 17 of that Act (see paragraph 28 above). Given that the applicant in the present case explicitly complained of discrimination both before the High Administrative Court and the Constitutional Court (see paragraphs 18 and 20 above), the Court considers that she was therefore not required to pursue another remedy under the Prevention of Discrimination Act with essentially the same objective in order to meet the requirements of Article 35 § 1 of the Convention (see Guberina v. Croatia, no. 23682/13, § 50, 22 March 2016). 53. The Court further notes that the parties did not dispute the applicability of Article 14 taken in conjunction with Article 1 of Protocol No. 1 to the Convention to the facts of the present case. In view of its case-law on the matter (see, among many other authorities, Stec and Others v. the United Kingdom (dec.) [GC], nos. 65731/01 and 65900/01, §§ 55-56, ECHR 2005 ‑ X), the Court considers those provisions applicable to the present case. 54. The Court also notes that this complaint is neither manifestly ill ‑ founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. MeritsThe parties’ submissions The parties’ submissions The parties’ submissions (a) The applicant 55. The applicant maintained that she had been discriminated against both on the basis of her sex and on the basis of the medical procedure she had had to undergo in order to become pregnant. When she took up her employment, she had had no way of knowing whether the in vitro fertilisation had been or would be successful. The fact that the authorities concluded retroactively that she had been unfit to work at that moment was discriminatory because they would never have come to such a conclusion in respect of a woman who had not undergone in vitro fertilisation and become pregnant. 56. The applicant stressed that the domestic law expressly provided pregnant women with the possibility of taking up employment and that the Fund had no legal basis on which to question employment contracts entered into freely by private employers and pregnant women. Such practice was in direct opposition to the CJEU’s case-law, which considered any unfavourable treatment towards pregnant women to be direct discrimination on the basis of sex. Moreover, the practice was based on the premise that no “reasonable” employer would actually enter into an employment contract with a pregnant woman and that no “honest” pregnant woman would take up employment in such circumstances. (b) The Government 57. The Government maintained that the applicant had been treated in the same way as all pregnant women who sought to obtain undue pecuniary gain from the State health insurance scheme by entering into fictitious employment contracts and thereby obtaining the status of insured employed persons. The Government explained that, unlike unemployed women, pregnant women who were employed were entitled to compensation of salary on account of pregnancy-related complications, paid for from the State budget and not by their employer. 58. In support of their claim, the Government submitted a number of judgments by the High Administrative Court showing that the State Health Insurance Fund regularly performed factual checks in all cases it deemed suspicious (see paragraphs 30 and 31 above). If it established that a person’s insurance status had been obtained on the basis of a fictitious transaction, as in the applicant’s case, it revoked that insurance. The applicant could therefore not be compared to other women who became pregnant by means of in vitro fertilisation or to pregnant women who were employed, but only to those pregnant women (regardless of the method they had used to become pregnant) who had entered into an employment contract immediately before claiming salary compensation on account of pregnancy ‑ related complications or precisely in order to do so. 59. The Government further argued that the conduct of the national authorities in the applicant’s case had had the legitimate aim of preventing individuals from “cheating the system”. The authorities had a duty to implement the applicable regulations and verify all the facts of relevance to the enjoyment of particular rights. Failure to perform such checks with a view to revoking the rights of individuals not entitled to them would jeopardise not only the rights of persons who were actually entitled to such rights, but also the entire healthcare system. 60. The applicant had entered into an employment contract despite the fact that she had been advised to rest following her in vitro fertilisation. Although at that time her pregnancy might not have been confirmed, she could have at least assumed that she would get pregnant after the procedure, and she would probably have become aware of that fact as early as 3 December 2009, when the relevant blood test was to be performed. However, the applicant had nonetheless entered into an employment contract with a company whose headquarters were located in Split, about 360 km away from her place of residence. Given that the applicant had never registered her residence in Split, the Government took the view that she had never actually intended to work there. 61. Finally, the Government pointed out that the applicant had not been left without healthcare protection during her pregnancy despite the Fund’s revocation of her employed person’s status. The applicant had continued to enjoy the healthcare protection afforded to all pregnant women in the respondent State, except for salary compensation during sick leave due to pregnancy-related complications, which was granted exclusively to employed persons. The Court’s assessment (a) General principles 62. The Court reiterates that in the enjoyment of the rights and freedoms guaranteed by the Convention, Article 14 affords protection against different treatment, without objective and reasonable justification, of individuals in analogous, or relevantly similar, situations. In other words, the requirement to demonstrate an analogous position does not mean that the comparator groups be identical. For the purposes of Article 14, a difference in treatment is discriminatory if it “has no objective and reasonable justification”, that is, if it does not pursue a “legitimate aim” or if there is not a “reasonable relationship of proportionality” between the means employed and the aim sought to be realised (see Molla Sali v. Greece ([GC], no. 20452/14, §§ 133 and 135, 19 December 2018). 63. The Court has also established in its case-law that only differences in treatment based on an identifiable characteristic, or “status”, are capable of amounting to discrimination within the meaning of Article 14 (see Fábián v. Hungary [GC], no. 78117/13, § 113, 5 September 2017). 64. A wide margin is usually allowed to the State under the Convention when it comes to general measures of economic or social strategy, for example (see Fábián, cited above, § 115). Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is in the public interest on social or economic grounds, and the Court will generally respect the legislature’s policy choice unless it is “manifestly without reasonable foundation” (see Carson and Others v. the United Kingdom [GC], no. 42184/05, § 61, ECHR 2010). Any measures taken on such grounds, including the reduction of the amount of pension normally payable to the qualifying population, must nevertheless be implemented in a non-discriminatory manner and comply with the requirements of proportionality (see Lakićević and Others v. Montenegro and Serbia, nos. 27458/06 and 3 others, § 59, 13 December 2011, and Stec and Others v. the United Kingdom [GC], nos. 65731/01 and 65900/01, § 55, ECHR 2006 ‑ VI). In any case, irrespective of the scope of the State’s margin of appreciation, the final decision as to the observance of the Convention’s requirements rests with the Court (see, among other authorities, Konstantin Markin v. Russia [GC], no. 30078/06, § 126, ECHR 2012 (extracts)). 65. The Court has also stressed on many occasions that the advancement of the equality of the sexes is a major goal in the member States of the Council of Europe. This means that, outside the context of transitional measures designed to correct historic inequalities (see J.D. and A v. the United Kingdom, nos. 32949/17 and 34614/17, § 89, 24 October 2019), very weighty reasons would have to be advanced before a difference in treatment on the grounds of sex could be regarded as being compatible with the Convention (see Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May 1985, § 78, Series A no. 94, and Carvalho Pinto de Sousa Morais v. Portugal, no. 17484/15, § 46, 25 July 2017). Consequently, where a difference in treatment is based on sex, the margin of appreciation afforded to the State is narrow, and in such situations the principle of proportionality does not merely require that the measure chosen should in general be suited to the fulfilment of the aim pursued, but it must also be shown that it was necessary in the circumstances (see Emel Boyraz v. Turkey, no. 61960/08, § 51, 2 December 2014). 66. The Court has acknowledged in its case-law, albeit indirectly, the need for the protection of pregnancy and motherhood (see, mutatis mutandis, Khamtokhu and Aksenchik v. Russia [GC], nos. 60367/08 and 961/11, § 82, 24 January 2017; Konstantin Markin, cited above, § 132; Alexandru Enache v. Romania, no. 16986/12, §§ 68 and 76-77, 3 October 2017; and Petrovic v. Austria, 27 March 1998, § 36, Reports of Judgments and Decisions 1998 ‑ II). 67. As to the burden of proof in relation to Article 14 of the Convention, the Court has held that once an applicant has demonstrated a difference in treatment, it is for the Government to show that it was justified (see D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 177, ECHR 2007 ‑ IV; and Guberina v. Croatia, no. 23682/13, § 74, 22 March 2016). (b) Application of those principles to the facts of the present case (i) Whether there has been a difference in treatment 68. The Court notes that the applicant complained that she had been treated differently both on the basis of her sex and on account of the manner in which she became pregnant. 69. The Court observes that only women can be treated differently on grounds of pregnancy, and for this reason, such a difference in treatment will amount to direct discrimination on grounds of sex if it is not justified (see Napotnik v. Romania, no. 33139/13, § 77, 20 October 2020). The Court further notes that a similar approach was also taken by the CJEU in its case-law (see paragraphs 35-41 above) and that it is consistent with domestic law (see paragraph 29 above). 70. In the present case, the applicant was refused the status of an insured employee and, in that context, an employment-related benefit (compensation of salary during sick leave), on grounds of employment which had been declared fictitious due to her pregnancy. The Court notes that such a decision could only be adopted in respect of women, since only women could become pregnant. It therefore finds that in the applicant’s case such a decision constituted a difference in treatment on grounds of sex. 71. Furthermore, in its below analysis the Court will also consider the fact that the applicant had become pregnant by way of in vitro fertilisation (compare Topčić-Rosenberg v. Croatia, no. 19391/11, § 40, 14 November 2013). (ii) Whether the difference in treatment was justified 72. It remains to be assessed whether the difference in treatment of the applicant had an objective and reasonable justification. 73. The Government argued that the decision to revoke the applicant’s insurance status had pursued the legitimate aim of the protection of public resources from fraudulent use, and the overall stability of the healthcare system (see paragraph 59 above). The Court would stress at the outset that a woman’s pregnancy as such cannot be considered fraudulent behaviour. Furthermore, the Court considers that the financial obligations imposed on the State during a woman’s pregnancy by themselves cannot constitute sufficiently weighty reasons to justify difference in treatment on the basis of sex (see paragraph 65 above; see also CJEU’s case-law in relation to employment of pregnant women cited at paragraphs 35-41 above and the relevant ILO standards cited at paragraph 43 above). Even assuming that the Court was generally prepared to accept the protection of public funds as a legitimate aim, it must establish whether in the context of the present case the impugned measure was necessary to achieve that aim, taking into consideration the narrow margin of appreciation afforded to States in cases where difference in treatment is based on sex (see paragraphs 65 and 69 above). 74. In the present case, a short time after taking up new employment, the applicant requested certain benefits, notably the payment of salary compensation during her sick leave due to pregnancy-related complications. The Court notes that, as admitted by the Government, precisely because of the fact that she had entered into new employment such a short time before seeking the employment-related benefit in question, the relevant administrative authority of its own motion initiated review of the applicant’s health insurance status under the suspicion that her employment agreement had been concluded only for her to be able to claim the said benefit (see paragraphs 12 and 58 above). 75. The Court acknowledges that under the applicable legislation the relevant authorities were at all times entitled to verify whether the facts on which an individual based his or her health insurance status were still valid (see paragraphs 26 and 27 above). At the same time the Court observes that it would appear from the Administrative Court’s case-law, on which the Government relied, that such review in practice frequently targeted pregnant women and that women who concluded an employment contract at an advanced stage of their pregnancies or with close family members, were automatically put in the “suspicious” category of employees whose employment merited verification (see paragraphs 30 and 31 above), although under domestic law no employer is allowed to refuse to employ a pregnant woman because of her condition (see paragraph 25 above). The Court finds such an approach of the competent Croatian authorities generally problematic (see in that respect the conclusions of the Gender Equality Ombudsperson cited at paragraph 32 above). 76. Turning to the applicant’s case, the Court notes the authorities’ conclusion that the applicant had been unfit to work on the date of concluding her employment contract because her doctor had recommended her rest following her in vitro fertilisation ten days before. In particular, the authorities relied on the fact that the applicant was expected to work at the employer’s headquarters over 350 km away from her place of residence and that travel in her condition might reduce her chances of a favourable outcome of the fertilisation (see paragraphs 16 and 19 above). In that connection, the Court considers that, as a matter of principle, even where the availability of an employee is a precondition for the proper performance of an employment contract, the protection afforded to a woman during pregnancy cannot be dependent on whether her presence at work during maternity is essential for the proper functioning of her employer or by the fact that she is temporarily prevented from performing the work for which she has been hired. Moreover, the Court is of the view that introducing maternity protection measures is essential in order to uphold the principle of equal treatment of men and women in employment (see, mutatis mutandis, the CJEU case-law cited at paragraphs 35-41 above). This is equally reflected in the Croatian legislation, including the Constitution (see paragraphs 24 and 25 above). 77. The Court notes that, in deciding the applicant’s case, the domestic authorities limited themselves to concluding that, due to the in vitro fertilisation, she had been medically unfit to take up the employment in question thereby implying that she had to refrain from doing so until her pregnancy was confirmed. The Court observes that this conclusion was in direct contravention to both domestic and international law (see paragraphs 25, 35-41 and 43 in connection with paragraph 75 above). Moreover, it was tantamount to discouraging the applicant from seeking employment due to her possible prospective pregnancy. 78. The foregoing alone is sufficient for the Court to conclude that the applicant had been discriminated on the basis of her sex. However, it considers it necessary to point out some additional factors, which made the difference in treatment suffered by the applicant even more striking. 79. In this connection, the Court observes that, prior to taking up the impugned employment, the applicant had had some fourteen years of work experience, during which she had regularly paid contributions to the compulsory health insurance scheme (see paragraph 5 above). It can thus not be argued that she had failed to contribute to the insurance fund from which she subsequently requested certain benefits, notably the payment of salary compensation during sick leave due to pregnancy-related complications. 80. The Court further observes that, when entering into her employment, the applicant had been well aware of the fact that she had undergone in vitro fertilisation, but at the same time had no way of knowing whether the procedure had been successful or whether it would result in her becoming pregnant. Moreover, at the material time she could not have known that her future pregnancy, if any, would have resulted in complications which would have required her to be issued sick leave for a prolonged period of time. 81. However, the Court notes that, in reviewing the applicant’s case, the competent Croatian authorities failed to provide any explanation of how the applicant could have consciously concluded a fraudulent employment contract, without even knowing whether or not she would actually become pregnant, in particular bearing in mind that she had not been under any legal obligation to report the fact that she had undergone in vitro fertilisation or that she might be pregnant at the moment of concluding her employment contract and that the domestic law prohibits the employer to request any information concerning a woman’s pregnancy or instruct another person to request such information (see section 64 of the Labour Act, cited at paragraph 25 above, see also paragraphs 35-41 and 43 above). Indeed, the Court is of the view that asking a woman information about her possible pregnancy or planning thereof or obliging her to report such fact at the moment of recruitment would also amount to direct discrimination based on sex. 82. What is more, the Court observes that the authorities had reached their conclusion in the applicant’s case without assessing whether or not she had ever actually taken up her duties and started performing her work assignments for the employer (see paragraphs 31 and 32 above). Had the authorities had any evidence of fraud or invalidity of the applicant’s employment relationship, nothing prevented them from instituting relevant proceedings in that respect (see paragraph 32 above). The authorities also never sought to establish whether the in vitro fertilisation she had undergone had necessitated her absence from work due to health reasons. Furthermore, there is nothing to show that women who had undergone in vitro fertilisation would generally be unable to work during their fertility treatment or pregnancy. 83. Lastly, the Court cannot but express concern about the overtones of the domestic authorities’ conclusion, which implied that women should not work or seek employment during pregnancy or mere possibility thereof (see in this sense also the conclusions of Gender Equality Ombudsperson cited at paragraph 21 above). In the Court’s view, gender stereotyping of this sort presents a serious obstacle to the achievement of real substantive gender equality, which, as already stated, is one of the major goals in the member States of the Council of Europe (see paragraph 65 above; see also Carvalho Pinto de Sousa Morais v. Portugal, no. 17484/15, §§ 48-54, 25 July 2017). Moreover, such considerations by the domestic authorities have not only been found in breach of the domestic law (see paragraph 32 above) but also appear to have been at odds with relevant international gender equality standards (see the CEDAW, the Istanbul Convention, ILO and the relevant Committee of Ministers Recommendation all cited at paragraphs 42-45 above). 84. In sum, the Court would reiterate that a refusal to employ or recognise an employment-related benefit to a pregnant woman based on her pregnancy, amounts to direct discrimination on grounds of sex, which cannot be justified by the financial interests of the State (see paragraph 73 above; see also, for a similar approach CJEU’s case-law in relation to employment of pregnant women cited at paragraphs 35-41 above and the relevant ILO standards cited at paragraph 43 above). On the basis of the foregoing, the Court considers that the difference in treatment to which the applicant, as a woman who had become pregnant by means of in vitro insemination, had been subjected had not been objectively justified or necessary in the circumstances. 85. There has accordingly been a violation of Article 14 taken in conjunction with Article 1 of Protocol No. 1 to the Convention. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 12 TO THE CONVENTION 86. The applicant complained that she had been discriminated against, in breach of the general prohibition of discrimination contained in Article 1 of Protocol No. 12 to the Convention, which reads as follows: “1. The enjoyment of any right set forth by law shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. 2. No one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph 1.” 87. The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. 88. Bearing in mind the above conclusion as regards Article 14 read in conjunction with Article 1 of Protocol No. 1, the Court considers that it is not necessary to examine separately the present complaint. APPLICATION OF ARTICLE 41 OF THE CONVENTION 89. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” Damage 90. The applicant claimed 10,000 euros (EUR) in respect of pecuniary damage, corresponding to the salary compensation which she had been denied. She also claimed EUR 15,000 in respect of non-pecuniary damage. 91. The Government contested those claims. 92. The Court notes that the applicant did not substantiate any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, the Court awards the applicant EUR 7,500 in respect of non-pecuniary damage, plus any tax that may be chargeable. Costs and expenses 93. The applicant also claimed EUR 1,150 for the costs and expenses incurred before the domestic courts and the Court. 94. The Government contested that claim. 95. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum claimed in full, plus any tax that may be chargeable to the applicant. Default interest 96. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 14 (prohibition of discrimination) of the Convention read in conjunction with Article 1 of Protocol No. 1. It found in particular that the Croatian authorities had failed to demonstrate any fraud, and had implied that pregnant women should not seek work, thus discriminating against the applicant. The Court also cautioned that gender stereotyping by the authorities as observed in the applicant’s case presented a serious obstacle to the achievement of real substantive gender equality, one of the major goals of the member States of the Council of Europe. Stressing that a refusal to employ or recognise an employment-related benefit to a pregnant woman based on her pregnancy, amounts to direct discrimination on grounds of sex, the Court concluded that the difference in treatment of the applicant had not been objectively justified, leading to a violation of her Convention rights. |
733 | Noise pollution | PROCEEDINGS BEFORE THE COMMISSION 25. The application (no. 9310/81) was first lodged with the Commission on 31 December 1980 by the Federation of Heathrow Anti-Noise Groups. On 15 March 1984 the Commission rejected the Federation ’ s complaint, but the application was continued by Mr Powell and Mr Rayner, together with a third applicant whose claim has since been settled. In their application, they complained of excessive noise levels in connection with the operation of Heathrow Airport. They invoked Articles 6 § 1, 8 and 13 (art. 6-1, art. 8, art. 13) of the Convention and Article 1 of Protocol No. 1 (P1-1). On 17 October 1985 and 16 July 1986 respectively the cases of Mr Powell and Mr Rayner were declared admissible under Article 13 (art. 13) of the Convention but inadmissible for the rest. In its report adopted on 19 January 1989 (Article 31) (art. 31) the Commission expressed the opinion that there had been a violation of Article 13 (art. 13) of the Convention in relation to Mr Rayner ’ s claim under Article 8 (art. 8) of the Convention (by twelve votes to four), but not in relation to any of the other claims (unanimously as regards both applicants ’ grievances under Article 1 of Protocol No. 1 and Article 6 § 1 (P1-1, art. 6-1) of the Convention, by fifteen votes to one as regards Mr Powell ’ s grievance under Article 8 (art. 8) of the Convention). The full text of the Commission ’ s opinion and of the dissenting opinion contained in the report is reproduced as an annex to this judgment [*]. FINAL SUBMISSIONS MADE TO THE COURT 26. At the public hearing on 27 September 1989 the applicants asked the Court "to find that they have been the victims of a violation of Articles 6 and 8 (art. 6, art. 8) of the Convention and that the lack of any effective remedy before a national authority itself violates Article 13 (art. 13) of the Convention". 27. At the hearing the Government maintained the final conclusions in their memorial, whereby they requested the Court "to decide and declare that there has been no violation of Article 13 (art. 13) of the Convention in relation to the claims of either applicant under Article 6 § 1 (art. 6-1) or Article 8 (art. 8) of the Convention or under Article 1 of Protocol No. 1 (P1-1)". They also submitted that "the applicants ’ attempts to re-open their complaints under Articles 6 and 8 (art. 6, art. 8) are ... entirely misconceived". AS TO THE LAW I. SCOPE OF THE CASE BEFORE THE COURT 28. In their application to the Commission Mr Powell and Mr Rayner alleged violation of their right to respect for their private life and their home (Article 8 of the Convention) (art. 8), of their right of property (Article 1 of Protocol No. 1) (P1-1), of their right of access to the courts in civil matters (Article 6 § 1 of the Convention) (art. 6-1) and of their right to an effective remedy under domestic law for alleged breaches of the Convention (Article 13 of the Convention) (art. 13). According to the terms of its decisions of 17 October 1985 and 16 July 1986 the Commission declared all these complaints inadmissible as being manifestly ill-founded with the exception of the complaint under Article 13 (art. 13) (see paragraph 25 above). Nonetheless, in the applicants ’ submission, "the Court has jurisdiction to consider the alleged violations of Articles 8 and 6 (art. 8, art. 6), independently of the alleged violation of Article 13 (art. 13)" (see paragraph 9 in fine of the applicants ’ memorial). The issue under Article 1 of Protocol No. 1 (P1-1) was not pursued after the admissibility stage. 29. The compass of the case before the Court is delimited by the Commission ’ s decision on admissibility (see, as the most recent authority, the Kamasinski judgment of 19 December 1989, Series A no. 168, p. 30, § 59). The Court is "precluded from reviewing on their merits ... the complaints rejected as manifestly ill-founded, but empowered to entertain those complaints which the Commission has declared admissible" (see the Boyle and Rice judgment of 27 April 1988, Series A no. 131, p. 24, § 54). Whilst the Court is the master of the characterisation to be given in law to the facts submitted to its examination, the allegations of violation of Articles 6 and 8 (art. 6, art. 8) constituted separate complaints in their own right and not, as suggested by the applicants, mere legal submissions or arguments relating to the same facts as those underlying the allegation of violation of Article 13 (art. 13). Neither can it be inferred from the "full consideration" devoted by the Commission to Mr Rayner ’ s claim under Article 8 (art. 8) that this claim was in reality declared admissible but rejected on its merits. Accordingly the Court agrees with the Commission and the Government that it has no jurisdiction in the present case to rule on the grievances under Articles 6 and 8 (art. 6, art. 8), independently of their relevance within the context of Article 13 (art. 13). II. ALLEGED BREACH OF ARTICLE 13 (art. 13) 30. The applicants contended that in respect of their claims under Articles 6 § 1 and 8 (art. 6-1, art. 8) of the Convention there was no domestic remedy as required by Article 13 (art. 13), which provides: "Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity." A. Introduction 31. Article 13 (art. 13) has been consistently interpreted by the Court as requiring a remedy in domestic law only in respect of grievances which can be regarded as "arguable" in terms of the Convention (see, for example, the Boyle and Rice judgment previously cited, Series A no. 131, p. 23, § 52). In the present case each one of the claims of violation forming the basis of the applicants ’ complaints under Article 13 (art. 13) (the "substantive" claims) was declared inadmissible by the Commission as being "manifestly ill-founded" (Article 27 § 2 of the Convention - see paragraph 25 above) (art. 27-2). 32. The majority of the Commission, however, drew a distinction between the notions of "manifestly ill-founded" and lack of "arguability". It was "implicit in the Commission ’ s established case-law that the term ‘ manifestly ill-founded ’ extends further than the literal meaning of the word ‘ manifest ’ would suggest at first reading" (see paragraph 59 of the report). Thus, some serious claims might give rise to a prima facie issue but, after "full examination" at the admissibility stage, ultimately be rejected as manifestly ill-founded notwithstanding their arguable character. The applicants agreed with this approach. For the Government and the minority of the Commission, on the other hand, it was inconsistent for the Commission to reach the conclusion that a substantive claim of violation was at one and the same time "manifestly ill-founded" for the purposes of Article 27 § 2 (art. 27-2) and "arguable" for the purposes of Article 13 (art. 13). 33. As the Court stated in the Boyle and Rice judgment, "on the ordinary meaning of the words, it is difficult to conceive how a claim that is ‘ manifestly ill-founded ’ can nevertheless be ‘ arguable ’, and vice versa" (loc. cit., p. 24, § 54). Furthermore, Article 13 and Article 27 § 2 (art. 13, art. 27-2) are concerned, within their respective spheres, with the availability of remedies for the enforcement of the same Convention rights and freedoms. The coherence of this dual system of enforcement is at risk of being undermined if Article 13 (art. 13) is interpreted as requiring national law to make available an "effective remedy" for a grievance classified under Article 27 § 2 (art. 27-2) as being so weak as not to warrant examination on its merits at international level. Whatever threshold the Commission has set in its case-law for declaring claims "manifestly ill-founded" under Article 27 § 2 (art. 27-2), in principle it should set the same threshold in regard to the parallel notion of "arguability" under Article 13 (art. 13). This does not mean, however, that in the present case the Court is bound to hold Article 13 (art. 13) inapplicable solely as a result of the Commission ’ s decisions of 17 October 1985 and 16 July 1986 declaring the applicants ’ substantive claims under Articles 6 § 1 and 8 (art. 6-1, art. 8) to be manifestly ill-founded. Whilst those decisions as such are unreviewable, the Court is competent to take cognisance of all questions of fact and law arising in the context of the Article 13 (art. 13) complaints duly referred to it, including the "arguability" or not of each of the substantive claims (see the Boyle and Rice judgment previously cited, p. 24, § 54). In order to determine the latter question, the particular facts and the nature of the legal issues raised must be examined, notably in the light of the Commission ’ s admissibility decisions and the reasoning contained therein. In that connection, as the case of Boyle and Rice and the case of Plattform" Ärzte für das Leben" show, a claim is not necessarily rendered arguable because, before rejecting it as inadmissible, the Commission has devoted careful consideration to it and to its underlying facts (loc. cit., pp. 27-29, §§ 68-76, and pp. 30-31, §§ 79-83; and the Plattform" Ärzte für das Leben" judgment of 21 June 1988, Series A no. 139, pp. 11-13, §§ 28-39). B. The claim under Article 6 § 1 (art. 6-1) 34. The applicants ’ claim under Article 6 § 1 (art. 6-1) was that their access to the courts for the determination of their "civil rights and obligations" was unjustifiably denied by section 76(1) of the Civil Aviation Act 1982, which sets out a statutory bar to bringing an action in nuisance in respect of aircraft noise (see paragraph 15 above). Article 6 § 1 (art. 6-1), in so far as relevant, provides: "In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal established by law. ..." 35. In its admissibility decisions of 17 October 1985 and 16 July 1986 the Commission rejected the claim under Article 6 § 1 (art. 6-1) as manifestly ill-founded on the ground that the applicants had no "civil right" under English law to compensation for unreasonable noise nuisance caused by aircraft, other than that caused by aircraft flying in breach of aviation regulations. In its report the Commission further reasoned that no separate issue of an effective remedy could arise under Article 13 (art. 13) since its requirements were less strict than and absorbed by those of Article 6 § 1 (art. 6-1); and that, in so far as the applicants were contesting the compatibility of section 76(1) with the Convention, Article 13 (art. 13) did not guarantee a remedy allowing a Contracting State ’ s legislation to be challenged as such. It therefore concluded that there had been no violation of Article 13 (art. 13) under this head. The applicants replied that the Commission ’ s admissibility decisions were based on a misunderstanding of English law. They did have, they maintained, a right of action at common law to sue in nuisance on account of unreasonable noise levels, but they were denied a remedy to assert that right by virtue of section 76(1). The entitlement to bring an action against individual airline operators for flying in breach of the regulations or at an unreasonable height, which was left intact by section 76(1), was, in the applicants ’ submission, theoretical and illusory. They contended that the statutory bar created by section 76(1) infringed the principles enunciated by the Court in the Ashingdane case (see the judgment of 28 May 1985, Series A no. 93, pp. 24-25, § 57), in that it did not pursue a legitimate aim, it placed a disproportionate burden on the applicants and, as a result, it destroyed the very essence of their above-mentioned common-law right. The Government advanced arguments similar to those of the Commission. Further and in the alternative they contended that section 76(1) did not impair the very essence of the applicants ’ "right to a court" under Article 6 § 1 (art. 6-1) or transgress the principle of proportionality. 36. The applicants ’ grievance under Article 6 § 1 (art. 6-1) is in essence directed against the limitation of liability set out in section 76(1) of the Civil Aviation Act 1982. Framed in this way their grievance does not bring into play Article 6 (art. 6) or Article 13 (art. 13). As the Commission pointed out in its admissibility decisions, the effect of section 76(1) is to exclude liability in nuisance with regard to the flight of aircraft in certain circumstances, with the result that the applicants cannot claim to have a substantive right under English law to obtain relief for exposure to aircraft noise in those circumstances. To this extent there is no "civil right" recognised under domestic law to attract the application of Article 6 § 1 (art. 6-1) (see the Lithgow and Others judgment of 8 July 1986, Series A no. 102, p. 70, § 192). In any event Article 13 (art. 13) does not go so far as to guarantee a remedy allowing a Contracting State ’ s laws as such to be challenged before a national authority (ibid., p. 74, § 206). For the rest no arguable claim of violation of Article 6 § 1 (art. 6-1) can, in the Court ’ s view, be derived from the applicants ’ subsidiary assertion that the limited entitlement to sue permitted by section 76(1) is illusory. Access to the domestic courts is available to any person who considers that he has a cause of action in nuisance under English law. If a question of the application of section 76(1) arises, it will be for the courts to decide. Accordingly, there was no violation of Article 13 (art. 13) in respect of the applicants ’ claims under Article 6 § 1 (art. 6-1). C. The claim under Article 8 (art. 8) 37. The applicants also maintained that, as a result of excessive noise generated by air traffic in and out of Heathrow Airport, they had each been victim of an unjustified interference by the United Kingdom with the right guaranteed to them under Article 8 (art. 8), which provides: "1. Everyone has the right to respect for his private ... life [and] his home .... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of ... the economic well-being of the country ...." The applicants disputed the acceptability of the noise levels permitted by the air traffic regulations and the effectiveness of the Government ’ s measures to reduce noise exposure. In their submission, by virtue of section 76(1) of the Civil Aviation Act 1982 they were forced to endure, without legal redress, unreasonable disturbance caused by aircraft flying in accordance with the regulations. Although it was conceded that Mr Powell was less severely affected than Mr Rayner, both applicants contended that they had an "arguable" claim of violation of Article 8 (art. 8) for the purposes of Article 13 (art. 13). 38. In its admissibility decision concerning Mr Powell the Commission left open whether the noise levels experienced by him (see paragraph 8 above) occasioned an interference with his right to respect for his private life and his home, within the meaning of paragraph 1 of Article 8 (art. 8-1), since, as it explained in its report (paragraph 56), it found "ample justification" in paragraph 2 (art. 8-2) for any resultant limitation on this right. In the opinion of the Commission, the facts of his case did not give rise to an arguable claim of breach of Article 8 (art. 8) or, consequently, to any entitlement to a remedy under Article 13 (art. 13). On the other hand, the Commission considered the facts of Mr Rayner ’ s case to be markedly different. In the words of the Delegate, in its admissibility decision the Commission found a "clear interference" which "involved the Government ’ s positive obligations under Article 8 (art. 8)", albeit an interference justified in a democratic society in the interests of the economic well-being of the country. It noted in its report that his home and farm were very close to and in the direct line of one of Heathrow Airport ’ s busy runways, that further development was prohibited in this area, which was classified as a high noise-annoyance zone, and that he had acquired his home before the major expansion of Heathrow Airport (see paragraphs 9 and 11 above). The "careful consideration" which had had to be given to Mr Rayner ’ s claim under Article 8 (art. 8) at the admissibility stage and the facts underlying it persuaded the Commission that it was an arguable claim for the purposes of Article 13 (art. 13). Being of the opinion that none of the available remedies (as to which, see paragraphs 13 to 16 and 24 above) could provide adequate redress for the claim, it concluded that there had been a violation of Article 13 (art. 13). 39. The Government submitted in the first place that the facts disclosed no direct "interference by a public authority" with the applicants ’ right under Article 8 (art. 8), Heathrow Airport and the aircraft using it not being and never having been owned, controlled or operated by the Government or any agency of the Government. It was, they contended, not the negative but the positive obligations of the State under Article 8 (art. 8) which were in reality in issue; and there was no arguable ground for establishing any failure on the part of the Government to secure the right of either applicant to respect for his private life and his home. In their alternative submission, any interference with either applicant ’ s right guaranteed by paragraph 1 of Article 8 (art. 8-1) was, for the reasons given in the Commission ’ s admissibility decisions, clearly justified under paragraph 2 (art. 8-2). The Government therefore concluded that neither Mr Powell nor Mr Rayner had made out an arguable claim of violation of Article 8 (art. 8). 40. In each case, albeit to greatly differing degrees, the quality of the applicant ’ s private life and the scope for enjoying the amenities of his home have been adversely affected by the noise generated by aircraft using Heathrow Airport (see paragraphs 8 to 10 above). Article 8 (art. 8) is therefore a material provision in relation to both Mr Powell and Mr Rayner. 41. Whether the present case be analysed in terms of a positive duty on the State to take reasonable and appropriate measures to secure the applicants ’ rights under paragraph 1 of Article 8 (art. 8-1) or in terms of an "interference by a public authority" to be justified in accordance with paragraph 2 (art. 8-2), the applicable principles are broadly similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation in determining the steps to be taken to ensure compliance with the Convention (see, for example, the Rees judgment of 17 October 1986, Series A no. 106, p. 15, § 37, as concerns paragraph 1 (art. 8-1), and the Leander judgment of 26 March 1987, Series A no. 116, p. 25, § 59, as concerns paragraph 2) (art. 8-2). Furthermore, even in relation to the positive obligations flowing from the first paragraph of Article 8 (art. 8-1), "in striking [the required] balance the aims mentioned in the second paragraph (art. 8-2) may be of a certain relevance" (see the Rees judgment previously cited, loc. cit.). 42. As the Commission pointed out in its admissibility decisions, the existence of large international airports, even in densely populated urban areas, and the increasing use of jet aircraft have without question become necessary in the interests of a country ’ s economic well-being. According to the uncontested figures supplied by the Government, Heathrow Airport, which is one of the busiest airports in the world, occupies a position of central importance in international trade and communications and in the economy of the United Kingdom (see paragraph 12 above). The applicants themselves conceded that the operation of a major international airport pursued a legitimate aim and that the consequential negative impact on the environment could not be entirely eliminated. 43. A number of measures have been introduced by the responsible authorities to control, abate and compensate for aircraft noise at and around Heathrow Airport, including aircraft noise certification, restrictions on night jet movements, noise monitoring, the introduction of noise preferential routes, runway alternation, noise-related landing charges, the revocation of the licence for the Gatwick/Heathrow helicopter link, a noise insulation grant scheme, and a scheme for the purchase of noise-blighted properties close to the Airport (see paragraphs 14 and 17-24 above). These measures, adopted progressively as a result of consultation of the different interests and people concerned, have taken due account of international standards established, developments in aircraft technology, and the varying levels of disturbance suffered by those living around Heathrow Airport. 44. On the other hand, section 76(1) of the Civil Aviation Act 1982 limits the possibilities of legal redress open to the aggrieved person (see paragraph 15 above). However, it is to be noted that the exclusion of liability in nuisance is not absolute: it applies only in respect of aircraft flying at a reasonable height and in accordance with the relevant regulatory provisions, including the Air Navigation (Noise Certification) Order 1987 (see paragraph 16 above). Since a forerunner of section 76(1) was enacted in 1949, successive Governments in the United Kingdom have proceeded on the view that the problems posed by aircraft noise are in general better dealt with by taking and enforcing specific regulatory measures to ensure that disturbance caused by aircraft noise is minimised, to the exclusion of having the matter settled by the case-law of the courts on the general criterion of reasonableness in any actions for nuisance which might be brought at common law. It is certainly not for the Commission or the Court to substitute for the assessment of the national authorities any other assessment of what might be the best policy in this difficult social and technical sphere. This is an area where the Contracting States are to be recognised as enjoying a wide margin of appreciation. It is not without significance that the provisions of section 76(1) are comparable to those of the Rome Convention of 1952 on Damage Caused by Foreign Aircraft to Third Parties on the Surface (see paragraph 15 above). 45. In view of the foregoing, there is no serious ground for maintaining that either the policy approach to the problem or the content of the particular regulatory measures adopted by the United Kingdom authorities gives rise to violation of Article 8 (art. 8), whether under its positive or negative head. In forming a judgment as to the proper scope of the noise abatement measures for aircraft arriving at and departing from Heathrow Airport, the United Kingdom Government cannot arguably be said to have exceeded the margin of appreciation afforded to them or upset the fair balance required to be struck under Article 8 (art. 8). This conclusion applies to Mr Rayner as much as to Mr Powell, even though Mr Rayner has suffered a much higher level of disturbance and even though careful consideration was given to his complaint by the Commission at the admissibility stage. 46. In sum, no arguable claim of violation of Article 8 (art. 8) and, consequently, no entitlement to a remedy under Article 13 (art. 13) have been made out in relation to either applicant as regards noise caused by aircraft flying at a reasonable height and in compliance with air traffic regulations. In so far as the applicants may also wish to complain of noise caused by aircraft not satisfying one or other of these conditions, there is no bar on their bringing an action in nuisance. To this extent they must be regarded as having an effective remedy available to them. In conclusion, there has been no violation of Article 13 (art. 13) in respect of the claims of either applicant under Article 8 (art. 8). | The Court observed that in each case, albeit to greatly differing degrees, the quality of the applicant’s private life and the scope for enjoying the amenities of his home had been adversely affected by the noise generated by aircraft using Heathrow Airport. However, it also pointed out that the existence of large international airports, even in densely populated urban areas, and the increasing use of jet aircraft had become necessary in the interests of a country’s economic well-being. A number of measures had further been introduced by the responsible authorities to control, abate and compensate for aircraft noise at and around Heathrow Airport. In the applicants’ case, the Court found that that the United Kingdom Government could not arguably be said to have exceeded the margin of appreciation afforded to them or upset the fair balance required to be struck under Article 8 of the Convention. It therefore held that there had been no violation of Article 13 (right to an effective remedy) of the Convention in respect of the claims of either applicant under Article 8 since no arguable claim of violation of Article 8 and no entitlement to a remedy under Article 13 had been made out in relation to either applicant. |
973 | Internet | RELEVANT LEGAL FRAMEWORK AND PRACTICE relevant domestic law Legislative Decree no. 196 of 30 June 2003 (Personal Data Protection Code) 15. The relevant provisions of the Personal Data Protection Code read as follows: Article 7: Right to access personal data, and other rights “... 3. a) The person affected has the right to obtain the removal, the anonymisation or the interruption of the processing of data that are being used illegally. ... Article 11: Arrangements for the processing and categorisation of data “1. Personal data subject to processing are: ... e) kept, in a form that allows the identification of the person concerned, for a period not exceeding the time necessary to achieve the objectives for which the data have been collected and subsequently processed. ...” Article 15: Damage arising from data processing “A person causing damage to a third person as a consequence of the processing of his or her personal data must compensate the person concerned under Article 2050 of the Civil Code. The person concerned is also entitled to obtain compensation for non-pecuniary damage resulting from the breach of Article 11.” Article 25: Prohibition of communication and dissemination “Communication and dissemination are forbidden in respect of ...: a) personal data whose removal has been ordered, after the period of time indicated in Article 11 § (1) (e) has elapsed ...” Article 99: Compatibility of the objectives and the length of processing “1. The processing of personal data for historical, scientific or statistical purposes is considered to be compatible with the different objectives for which the data was initially collected or processed. 2. The processing of personal data for historical, scientific or statistical purposes may be carried out also upon the expiry of the period that is necessary for achieving the different purposes for which the data was initially collected and processed. ...” Article 136: Journalistic purposes ... “1. The provision contained in this paragraph [Journalism and Literary and Artistic Expression] are applicable to the processing of data: a) carried out in the exercise of journalistic activities and for the exclusive pursuit of the inherent objectives. ...” Article 139: Code of ethics concerning journalistic activities “The Data Protection Authority encourages the adoption by the National Council of Journalists of a code of ethics in respect of the processing of the [type of] data referred to in Article 136, which [would provide] protective measures ... in respect of ..., in particular, data that could reveal information regarding [a person’s] state of health or sexual life. ...” Article 152: Standard judicial authorities “1. A standard judicial authority [ autorità giudiziaria ordinaria ] has jurisdiction to settle all disputes concerning the application of the provisions contained in the present code ... 2. In order to institute proceedings concerning all disputes mentioned in paragraph 1 above, an appeal shall be lodged with the registry of the court serving the place of residence of the person whose (personal data) are being processed. 3. The court will decide [a case] sitting in a single-judge composition. ... 13. A judgement may not be subject to an appeal on the merits before a second-instance court; however, it may be subject to an appeal on points of law before the Court of Cassation. ...” International LAW MATERIALRecommendation CM/Rec(2012)3 of the Committee of Ministers of the Council of Europe to member States on the protection of human rights with regard to search engines Recommendation CM/Rec(2012)3 of the Committee of Ministers of the Council of Europe to member States on the protection of human rights with regard to search engines Recommendation CM/Rec(2012)3 of the Committee of Ministers of the Council of Europe to member States on the protection of human rights with regard to search engines 16. In its relevant parts, this recommendation, adopted by the Committee of Ministers on 4 April 2012, reads as follows: “7. The Committee of Ministers ..., under the terms of Article 15. b of the Statute of the Council of Europe, recommends that member States, in consultation with private sector actors and civil society, develop and promote coherent strategies to protect freedom of expression, access to information and other human rights and fundamental freedoms in relation to search engines in line with the Convention for the Protection of Human Rights and Fundamental Freedoms (ETS No. 5, hereinafter referred to as the “Convention”), especially Article 8 (Right to respect for private and family life) and Article 10 (Freedom of expression) and with the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (ETS No. 108, hereafter referred to as “Convention No. 108”), in particular by engaging with search engine providers to carry out the following actions: – enhance transparency regarding the way in which access to information is provided, in order to ensure access to, and pluralism and diversity of, information and services, in particular the criteria according to which search results are selected, ranked or removed; – review search ranking and indexing of content which, although in the public space, is not intended for mass communication (or for mass communication in aggregate). This could include listing content sufficiently low in search results so as to strike a balance between the accessibility of the content in question and the intentions or wishes of its producer (for example having different accessibility levels to content which is published seeking broad dissemination as compared to content which is merely available in a public space). Default settings should be conceived taking account of this objective; ... III. Filtering and de-indexing Context and challenges 12. A prerequisite for the existence of effective search engines is the freedom to crawl and index the information available on the Internet. The filtering and blocking of Internet content by search engine providers entails the risk of violation of freedom of expression guaranteed by Article 10 of the Convention in respect to the rights of providers and users to distribute and access information. 13. Search engine providers should not be obliged to monitor their networks and services proactively in order to detect possibly illegal content, nor should they conduct any ex ante filtering or blocking activity, unless mandated by court order or by a competent authority. However, there may be legitimate requests to remove specific sources from their index, for example in cases where other rights outweigh the right to freedom of expression and information; the right to information cannot be understood as extending the access to content beyond the intention of the person who exercises her or his freedom of expression. 14. In many countries, search engine providers de-index or filter specific websites at the request of public authorities or private parties in order to comply with legal obligations or at their own initiative (for example in cases not related to the content of websites, but to technical dangers such as malware). Any such de-indexing or filtering should be transparent, narrowly tailored and reviewed regularly subject to compliance with due process requirements. Action 15. Member States should: – ensure that any law, policy or individual request on de-indexing or filtering is enacted with full respect for relevant legal provisions, the right to freedom of expression and the right to seek, receive and impart information. The principles of due process and access to independent and accountable redress mechanisms should also be respected in this context. 16. In addition, member States should work with search engine providers so that they: ... – explore the possibility of allowing de-indexation of content which, while in the public domain, was not intended for mass communication (or mass communication in aggregate). ...” Council of Europe Convention for the Protection of Individuals with Regard to the Processing of Personal Data of 18 May 2018 17. The relevant provisions of this Convention, updating the previous Convention ETS (European Treaty Series) no. 108 for the Protection of Individuals with regard to Automatic Processing of Personal Data of 28 January 1981, read as follows: Article 5: Legitimacy of data processing and quality of data “1. Data processing shall be proportionate in relation to the legitimate purpose pursued and reflect at all stages of the processing a fair balance between all interests concerned, whether public or private, and the rights and freedoms at stake. 2. ... 3. Personal data undergoing processing shall be processed lawfully. 4. Personal data undergoing processing shall be: ... b. collected for explicit, specified and legitimate purposes and not processed in a way incompatible with those purposes; further processing for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes is, subject to appropriate safeguards, compatible with those purposes; c. adequate, relevant and not excessive in relation to the purposes for which they are processed; d. accurate and, where necessary, kept up to date; e. preserved in a form which permits identification of data subjects for no longer than is necessary for the purposes for which those data are processed.” Article 6: Special categories of data “1. The processing of: ... – personal data relating to offences, criminal proceedings and convictions, and related security measures; ... shall only be allowed where appropriate safeguards are enshrined in law, complementing those of this Convention. 2. Such safeguards shall guard against the risks that the processing of sensitive data may present for the interests, rights and fundamental freedoms of the data subject, notably a risk of discrimination.” Article 9: Rights of the data subject “1. Every individual shall have a right: ... e. to obtain, on request, free of charge and without excessive delay, rectification or erasure, as the case may be, of such data if these are being, or have been, processed contrary to the provisions of this Convention; ...” Article 11: Exceptions and restrictions “1. No exception to the provisions set out in this Chapter shall be allowed except to the provisions of Article 5 paragraph 4, Article 7 paragraph 2, Article 8 paragraph 1 and Article 9, when such an exception is provided for by law, respects the essence of the fundamental rights and freedoms and constitutes a necessary and proportionate measure in a democratic society for: ... b. the protection of the data subject or the rights and fundamental freedoms of others, notably freedom of expression.” European Union law materialDirective 95/46/EC of the European Parliament and of the Council of 24 October 1995 Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 18. Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (“Directive 95/46/EC”) was designed to protect individuals’ fundamental rights and freedoms (including their right to privacy) in the processing of personal data, while at the same time removing obstacles to the free flow of such data. The relevant Articles read as follows. Article 8: The processing of special categories of data “... 5. Processing of data relating to offences, criminal convictions or security measures may be carried out only under the control of official authority, or if suitable specific safeguards are provided under national law, subject to derogations which may be granted by the Member State under national provisions providing suitable specific safeguards. However, a complete register of criminal convictions may be kept only under the control of official authority. Member States may provide that data relating to administrative sanctions or judgements in civil cases shall also be processed under the control of official authority.” Article 9: Processing of personal data and freedom of expression “Member States shall provide for exemptions or derogations from the provisions of this Chapter, Chapter IV and Chapter VI for the processing of personal data carried out solely for journalistic purposes or the purpose of artistic or literary expression only if they are necessary to reconcile the right to privacy with the rules governing freedom of expression.” Article 12: Right of access “Member States shall guarantee every data subject the right to obtain from the controller: ... (b) as appropriate the rectification, erasure or blocking of data the processing of which does not comply with the provisions of this Directive, in particular because of the incomplete or inaccurate nature of the data; ...” Article 14: The data subject’s right to object “Member States shall grant the data subject the right: (a) at least in the cases referred to in Article 7 (e) and (f), to object at any time on compelling legitimate grounds relating to his particular situation to the processing of data relating to him, save where otherwise provided by national legislation. Where there is a justified objection, the processing instigated by the controller may no longer involve those data; ...” Relevant Court of Justice of the European Union (CJEU) case-law related to Directive 95/46/ECGoogle Spain and Google Inc. (Case C-131/12) Google Spain and Google Inc. (Case C-131/12) Google Spain and Google Inc. (Case C-131/12) 19. In its grand chamber judgment of 13 May 2014 in Google Spain SL and Google Inc., C-131/12, EU:C:2014:317, the CJEU was called upon to interpret Directive 95/46/EC. It found that the “activity” of an Internet search engine was to be classified as the “processing of personal data” within the meaning of Directive 95/46/EC, and held that such processing of personal data by the operator of a search engine was liable to affect significantly the fundamental rights to privacy and to the protection of personal data (as guaranteed under Articles 7 and 8 of the Charter of Fundamental Rights of the European Union) when a search by means of that engine was carried out on the basis of an individual’s name, since such processing enabled any Internet user to obtain (through the list of search results thus attained) a structured overview of the information relating to that individual that could be found on the Internet and thereby to establish a more or less detailed profile of him or her. 20. Furthermore, the effect of such interference on the rights of a data subject would be heightened on account of the important role played by the Internet and search engines in modern society, which rendered the information contained in such a list of results ubiquitous. In the light of the potential seriousness of that interference, it could not be justified merely by the economic interest of the operator. 21. The CJEU held that a fair balance had to be sought between the legitimate interest of Internet users in having access to such information and the data subject’s fundamental rights. It deemed that a data subject’s fundamental rights, as a general rule, overrode the interests of Internet users, but that that balance might, however, depend on (i) the nature of the information in question and its sensitivity as regards the data subject’s private life and (ii) the interest of the public in having that information. 22. The CJEU held that in certain cases the operator of a search engine was obliged to remove from the list of results displayed (following a search made on the basis of a person’s name) any and all links to Internet pages published by third parties and containing information relating to that person, even when the publication of that information on the Internet pages in question was in itself lawful. That was so in particular where the data in question appeared to be inadequate, irrelevant or no longer relevant, or excessive, given the purposes for which they had been processed and in the light of the time that had elapsed since the date of the processing in question (see Delfi AS v. Estonia [GC], no. 64569/09, § 56, ECHR 2015). GC, AF, BH, ED v. CNIL (Case C-136/17) 23. In a judgment of 24 September 2019 in GC and Others (De-referencing of sensitive data), C-136/17, EU:C:2019:773, the CJEU was called upon to interpret Directive 95/46/EC following a request for a preliminary ruling concerning four decisions delivered by the National Commission on Data Processing and Civil Liberties ( Commission nationale de l’informatique et des libertés – CNIL) refusing to serve formal notices on Google requiring it to de-reference various links appearing in the lists of results displayed following searches of their names and leading to Internet pages published by third parties. 24. The CJEU decided, inter alia, that information relating to legal proceedings brought against an individual (and information relating to any ensuing conviction) constituted data relating to “offences” and “criminal convictions” within the meaning of Article 8(5) of Directive 95/46/EC. The CJEU also ruled that the operator of a search engine was required to accede to a request for de-referencing in respect of links to Internet pages displaying such information, in the event that the information in question (i) related to an earlier stage of the legal proceedings in question and, (ii) having regard to the progress of the proceedings, no longer corresponded to the current situation; however, the search engine operator in question would be required to accede to a request for de-referencing only if – in the course of verifying whether there were reasons of substantial public interest, as listed in Article 8(4) of Directive 95/46/EC– it had been established that, in the light of all the circumstances of the case, the data subject’s fundamental rights – as guaranteed by Articles 7 of the Charter of Fundamental Rights of the European Union (“Respect for private and family life”) and 8 of the Charter of Fundamental Rights of the European Union (“Protection of personal data”) – overrode the rights of potential Internet users who might have an interest that was protected by Article 11 of the Charter of Fundamental Rights of the European Union (“Freedom of expression and information”). Google LLC v. CNIL (Case C-507/17) 25. In a judgment of 24 September 2019 in Google (Territorial scope of de-referencing), C-507/17, EU:C:2019:772, the CJEU was called upon to interpret Directive 95/46/EC following a request for a preliminary ruling concerning the imposition by CNIL on Google of a penalty of EUR 100,000 because of that company’s refusal, when granting a de-referencing request, to apply it to all of its search engine’s domain name extensions. The CJEU was then requested to clarify the territorial scope of the requested de-referencing and to determine whether the provisions of Directive 95/46/EC required de-referencing at the national, European or worldwide level. 26. The CJEU ruled that in the event that a search engine operator granted a request for de-referencing (pursuant to Article 12(b) and subparagraph (a) of the first paragraph of Article 14 of Directive 95/46/EC and of Article 17(1) of Regulation (EU) 2016/679 of the European Parliament and of the European Council), that operator would not be required to carry out that de-referencing on all versions of its search engine, but only on the versions of that search engine corresponding to all the European Union States, using, where necessary, measures which, while meeting the legal requirements, effectively prevented (or, at the very least, seriously discouraged) an Internet user from (i) conducting a search from one of the European Union States on the basis of a data subject’s name, and (ii) gaining access, via the list of results displayed following that search, to the links that were the subject of that request. EU national data protection authorities’ guidelines of 26 November 2014 27. On 26 November 2014 the domestic data protection authorities of all the European Union States – meeting within the Article 29 Working Party (an independent European working party dealing with issues relating to the protection of privacy and personal data) – adopted a set of guidelines designed to ensure the harmonised implementation of the CJEU’s judgment of 13 May 2014 (Guidelines on the implementation of the Court of Justice of the European Union judgment on “ Google Spain and Inc. v. Agencia Española de protección de datos (AEPD) and Marco Costeja González ” C-131/12 adopted on 26 November 2014 by the Article 29 Data protection working party). The second part of the guidelines concerns common criteria which the data protection authorities were invited to apply when handling complaints following refusals by search engines to de-list search results. The thirteenth criterion reads as follows: “13. Does the data relate to a criminal offence? EU Member States may have different approaches as to the public availability of information about offenders and their offences. Specific legal provisions may exist which have an impact on the availability of such information over time. DPAs will handle such cases in accordance with the relevant national principles and approaches. As a rule, DPAs are more likely to consider the de-listing of search results relating to relatively minor offences that happened a long time ago, whilst being less likely to consider the de-listing of results relating to more serious ones that happened more recently. However, these issues call for careful consideration and will be handled on a case-by-case basis.” The General Data Protection Regulation 28. Regulation (EU) 2016/679 of the European Parliament and of the European Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (the General Data Protection Regulation – hereinafter “the GDPR”), published in OJ 2016 L 119/1, entered into force on 24 May 2016 and repealed Directive 95/46/EC with effect from 25 May 2018. The relevant provision of the Regulation read as follows: Article 17 – Right to erasure (“right to be forgotten”) “1. The data subject shall have the right to obtain from the controller the erasure of personal data concerning him or her without undue delay and the controller shall have the obligation to erase personal data without undue delay where one of the following grounds applies: (a) the personal data are no longer necessary in relation to the purposes for which they were collected or otherwise processed; ... 2. Where the controller has made the personal data public and is obliged pursuant to paragraph 1 to erase the personal data, the controller, taking account of available technology and the cost of implementation, shall take reasonable steps, including technical measures, to inform controllers which are processing the personal data that the data subject has requested the erasure by such controllers of any links to, or copy or replication of, those personal data. 3. Paragraphs 1 and 2 shall not apply to the extent that processing is necessary: (a) for exercising the right of freedom of expression and information; ... (d) for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes in accordance with Article 89(1) in so far as the right referred to in paragraph 1 is likely to render impossible or seriously impair the achievement of the objectives of that processing ....” The European Data Protection Board’s Guidelines on the criteria of the Right to be Forgotten in search engines cases under the GDPR 29. The Guidelines (5/2019) on the criteria of the Right to be Forgotten in search engines cases (adopted by the European Data protection Board on 7 July 2020) read as follows in their relevant parts: 4 ... this document aims to interpret the Right to be forgotten in the search engines cases in light of the provisions of Article 17 GDPR (the “Right to request de-listing”). Indeed, the Right to be forgotten has been especially enacted under Article 17 GDPR to take into account the Right to request de-listing established in the Costeja judgement [CJEU, Case C-131/12, Google Spain SL and Google Inc. v Agencia Española de Protección de Datos (AEPD ) and Mario Costeja González, judgment of 13 May 2014]. ... 18. According to Article 17.1.a GDPR, a data subject may request a search engine provider, following a search carried out as a general rule on the basis of his or her name, to delist content from its search results, where the data subject’s personal data returned in those search results are no longer necessary in relation to the purposes of the processing by the search engine. 19. This provision enables a data subject to request the de-listing of personal information concerning him or her that have been made accessible for longer than it is necessary for the search engine provider’s processing. Yet, this processing is notably carried out for the purposes of making information more easily accessible for internet users. Within the context of the Right to request de-listing, the balance between the protection of privacy and the interests of Internet users in accessing the information must be undertaken. In particular, it must be assessed whether or not, over the course of time, the personal data have become out-of-date or have not been updated.” ... THE LAW ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 30. Under Article 10 of the Convention, the applicant alleged that the interference in his freedom of expression – namely, his right to inform the public – had been unjustified. He also complained that the penalty imposed on him had been excessive. Article 10 of the Convention reads as follows: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. ... 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” Admissibility 31. The Court notes that the application is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. MeritsThe parties’ submissions The parties’ submissions The parties’ submissions (a) The applicant 32. The applicant pointed out that the criminal proceedings instituted against V.X. had still been pending as at the date on which the Supreme Court’s judgment had been issued in respect of his case. Therefore, it could not be said that the period of time during which the information had remained published was excessive. Thus, V.X.’s “right to be forgotten” had never existed in the first place. 33. The applicant submitted that the domestic authorities had not taken into account Article 99 of Legislative Decree no. 196/2003, which provided that the processing of personal data for, inter alia, “historical purposes” [ scopi storici ] could be carried out upon the expiry of the period allowed for achieving the different purposes for which the data had originally been collected and processed. He also referred to Articles 136 and 139 of the same Decree and to the above-mentioned code of ethics, which contained specific provisions regarding the protection of journalists’ freedom of expression. 34. The applicant furthermore submitted that he had been unjustly held liable for not having erased the article in question, since only the search engine provider (that is to say, Google Italy) that had been technically capable of de-listing the article in question. 35. The applicant also pointed out that, in cases similar to the present one, the balance between the protection of individuals’ reputation under Article 8 and the freedom of expression provided by Article 10 had been easily secured by simply requiring the publications concerned to publish supplementary information or clarifications to the articles in question. (b) The Government 36. The Government submitted that an adequate balance between the applicant’s freedom of expression and the right of V.X. and his restaurant to respect for his private life (and the reputation of both) had been achieved in the instant case. 37. The Government added that the restriction in question had been prescribed by law – namely, Legislative Decree no. 196/2003, which clearly stated that the maintenance of personal data was subject to the continuing existence of the objective that had initially justified their collection and storage. The aim of journalism – namely, to contribute to public debate on matters of social, political and economic interest – should be deemed to be ongoing whenever the knowledge of certain events was still relevant to public discussion. In that regard, the Government submitted that the article had remained on the site of the online newspaper for a substantial period of time. Indeed, no information about the progress of the related criminal proceedings had been provided in the article, which had simply recounted the material events. Therefore, it could not be said that the period of time during which the information had remained published was excessive. 38. The Government emphasised that the fact that the applicant had been found guilty had been a consequence of the failure to de-index from the Internet search engine the tags to the article published by the applicant (which would have prevented anyone accessing the article by means of simply typing out the name of V.X. or of his restaurant). In other words, the decisions of the Italian courts had stated that the applicant should have de-indexed the article’s content, thereby making it more likely that only people who were genuinely interested in learning the facts of the matter in question would come across the article. However, the applicant had not been obliged actually to remove the article in question from the Internet archives. 39. Contrary to what the applicant had stated in his observations, the Government submitted that the obligation to de-index material could be imposed not only on Internet search engine providers, but also on the administrators of newspaper or journalistic archives accessible through the Internet. (c) Third party interveners (i) Reporters’ Committee for Freedom of the Press (“the Reporters’ Committee”) 40. This intervener reiterated that the “right to be forgotten”, as recognised by the CJEU in Google Spain and as stipulated by the GDPR (see, respectively, paragraphs 19 et seq. and 28 et seq. above) is aimed at providing users with the ability to request that search engines de-list or de-index the results of searches conducted on the basis of a person’s name. Within the Convention’s system, this right has to be weighed against the right to freedom of expression and the right to publish information – in particular when it would result in the permanent removal of news articles published by the press (see Węgrzynowski and Smolczewski v. Poland, no. 33846/07, 16 July 2013). 41. This third party also pointed out the essential role played by the press in a democratic society, including through media websites and its establishment of digital archives. It also pointed out that the Court had found that the public’s right to be informed outweighed the “right to be forgotten” in the case of two individuals who had sought to have online media reports about their past criminal convictions anonymised ( M.L. and W.W. v. Germany, nos. 60798/10 and 65599/10, 28 June 2018). (ii) UN Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression and the Special Rapporteur for Freedom of Expression of the Inter-American Commission on Human Rights 42. This third-party intervener argued that there was a significant distinction between de-listing and the outright erasure of content under international standards regarding freedom of expression. The conclusion that the “right to be forgotten” encompassed the right to demand the erasure of certain news content (as opposed to its mere de-listing) would almost certainly lead to censorship worldwide, and the “right to be forgotten” would be inappropriately expanded to the extent of severely jeopardising press freedom. (iii) Media Lawyers Association 43. The Media Lawyers Association contended that online media archives played a fundamental role in protecting and developing the rights and values enshrined in Article 10 of the Convention. The erasure of accurate information from the record ran directly contrary to the values protected by Article 10 and amounted to press censorship. Accordingly, any attempt to erase such information had to be genuinely exceptional and only justifiable where strictly necessary. (iv) Media Legal Defence 44. The Media Legal Defence argued that the scope of the “right to be forgotten” should not include the right to secure the erasure or the anonymisation of newspaper articles containing the personal information of individuals. In the intervener’s view, articles published by individuals or entities engaged in journalistic activities or by governments should not be de-listed. 45. This third party also submitted that in the evaluation of the balance between the right to respect for one’s reputation and the right to freedom of expression, other elements came into play, such as whether the complainant had suffered substantial harm, how recent the information in question was and whether it remained of interest to the public. Individuals should not be empowered to restrict access to information concerning themselves and published by third parties, except when such information had an essentially private or defamatory character or when the publication of such information was not justified for other reasons. The Court’s assessment (a) Preliminary remarks (i) The scope of the case 46. The Court notes at the outset that it has dealt with Article 10 cases concerning Internet publications in which the subject matter was an article or a post with defamatory or offensive content (see Delfi AS v. Estonia [GC], no. 64569/09, §§ 131-139, ECHR 2015; Savva Terentyev v. Russia, no. 10692/09, 28 August 2018; and Kablis v. Russia, nos. 48310/16 and 59663/17, 30 April 2019). Moreover, it has previously examined the requirement to publish – where appropriate – supplementary information or clarifications to an article contained in Internet archives (see Times Newspapers Ltd v. the United Kingdom (nos. 1 and 2, concerning the requirement to append a notice to the articles at stake in that case to the effect that they were subject to libel litigation), nos. 3002/03 and 23676/03, §§ 40-43, ECHR 2009). 47. With regard to Article 8, the Court has already examined cases in which the domestic jurisdictions refused to remove personal data from public Internet archives (see Węgrzynowski and Smolczewski, cited above, § 65, 16 July 2013) or to oblige media to anonymise online archived material concerning a crime (see M.L. and W.W., cited above, § 116). 48. The Court observes, however, that the present case departs from all the Article 10 and 8 case cited above. Its crux is indeed not related to the content of an Internet publication, nor to the way an information is published (as for instance, its anonymisation or qualification); rather, it relates to the applicant’s failure to de-index the above-mentioned information concerning V.X. and his restaurant and to his decision to keep the article easily accessible, despite the fact that the claimant had asked that the article be removed from the Internet. 49. The scope of the case, as defined above, was also emphasised by the Supreme Court, which ruled out that the unlawfulness of the processing of V.X.’s personal data arose from either (i) the content of the said article, (ii) its online publication and dissemination or (iii) its conservation and digital archiving (see paragraph 14 above). 50. The Court also notes that what is at stake in the present case is the length and ease of access to the data concerned and not their simple maintenance on the Internet. In this regard, the Court observes that the applicant claimed that he could not be given the responsibility for de-indexing the article in question, such a possibility being open, in his view, only to the relevant Internet search engine provider. The Court notes, however, that this assertion is contradicted by the fact that the applicant eventually did de-index the impugned article on 23 May 2011 (see paragraph 10 above). Indeed, de-indexing can be carried out by an editor, “noindexing” being a technique used by website owners to tell a search engine provider not to let the content of an article appear in the search engine’s search results. [2] 51. In this respect, the Court shares the Government’s position that the finding of the applicant’s liability had been a consequence of the failure to de-index from the Internet search engine the tags to the article published by the applicant (which would have prevented anyone accessing the article by simply typing out the name of V.X. or of his restaurant), and that the obligation to de-index material could be imposed not only on Internet search engine providers, but also on the administrators of newspaper or journalistic archives accessible through the Internet (see paragraphs 38. and 39 above). 52. The Court will therefore keep in mind the scope of the case, as described above, as it now proceeds to examine the applicant’s complaint. (ii) The terminology 53. The Court acknowledges that the terms “de-indexing”, “de-listing” and “de-referencing” are often used interchangeably in different sources of European Union and international law and that their specific meaning can often only be drawn from the context in which they are used (see – cited in paragraph 16 above – Recommendation CM/Rec(2012)3 of the Committee of Ministers of the Council of Europe to member States on the protection of human rights with regard to search engines part III “Filtering and de-indexing”, points 13 and 14; the European Data Protection Board’s Guidelines on the criteria of the Right to be Forgotten in search engines cases under the GDPR (see paragraph 29 above); and the CJEU’s judgment in GC, AF, BH, ED v. Commission nationale de l’informatique et des libertés (Case C-136/17) (see paragraph 24 above). 54. Within the above-mentioned sources, the terms “de-indexing”, “de-listing” and “de-referencing” indicate the activity of a search engine consisting of removing, on the initiative of its operators, from the list of results displayed (following a search made on the basis of a person’s name) Internet pages published by third parties that contain information relating to that person (see paragraph 22 above). 55. Instead, in the instant case, the subject to whom was addressed the request to limit access to personal data – namely, the applicant – was not a search engine but an editor, journalist, and owner of an online newspaper website. 56. For the sake of consistency, the Court emphasises that in this judgment it will use the term “de-indexing” to indicate the measure that the applicant was asked to carry out in order to guarantee V.X.’s and W’s right to respect for their reputation. (b) The Court’s assessment 57. The Court notes that it was not in dispute between the parties that the applicant’s freedom of expression, as guaranteed under Article 10 of the Convention, was interfered with by the domestic court’s decisions of 16 January 2013 and 24 June 2016; neither was it in dispute between the parties that such interference was “prescribed by law” – namely, Legislative Decree no. 196 of 2003. The Court sees no reasons to hold otherwise. It is furthermore satisfied that the interference in question was designed to protect “the reputation or rights of others” and had thus a legitimate aim under Article 10 § 2 of the Convention. 58. As to the question of whether the said interference was “necessary in a democratic society”, the Court reiterates from the outset the specificity and the scope of the case at issue (see paragraphs 46 et seq. above): the applicant was held liable not for not removing the article, but for not having de-indexed it (thus allowing for the possibility – for a period whose length has been deemed to be excessive – of typing into the search engine the restaurant’s or V.X.’s names in order to access information related to the criminal proceedings involving V.X.). 59. In this regard, and with reference to the above considerations concerning the scope of the case, the Court reiterates the observations of the third-party interveners (see paragraphs 40 et seq. above), which draw a clear distinction between, on the one hand, the requirement to de-list (or “de-index”, as in the present case) and, on the other hand, the permanent removal or erasure of news articles published by the press. In the instant case, the Court acknowledges that the applicant was found to be liable solely on account of the first requirement – that is to say no requirement to permanently remove the article was at issue before the domestic courts. Nor was any intervention regarding the anonymisation of the online article in question at issue in this case. 60. In the Court’s view, this is an important starting point from which to define the interference in the applicant’s freedom of expression and to identify, accordingly, the applicable principles in order to assess the proportionality of that interference. 61. As to this last point, the Court has laid down relevant principles to guide its assessment of whether or not an interference in this area is necessary and has identified a number of criteria in the context of balancing freedom of expression and right to reputation. These criteria are the following: i) a contribution to a debate of general interest; ii) how well known the person concerned was and what the subject of the report in question was; iii) the behaviour of the person concerned towards the media; iv) the method of obtaining the information in question, and its veracity; v) the content, the form and the consequences of the publication in question, and vi) the severity of the sanction imposed on the applicant (see Axel Springer AG v. Germany ([GC], no. 39954/08, §§ 89-95, 7 February 2012). 62. However, the Court observes that there are factual differences between Axel Springer AG and the present case. Indeed, the former case concerned the publication, by the applicant company, of print articles reporting the arrest and conviction of a well-known television actor whereas, as noted above, the present case deals with the maintenance online, for a certain period of time, of an Internet article concerning a criminal case against private individuals. There are therefore two main features that characterise the present case: one is the period for which the online article remained on the Internet and the impact thereof on the right of the individual in question to have his reputation respected; the second feature relates to the nature of the data subject in question – that is to say a private individual not acting within a public context as a political or public figure. Indeed, anyone – well-known or not – can be the subject of an Internet search, and his or her rights can be impaired by continued Internet access to his or her personal data. 63. In the light of this, the Court acknowledges that the strict application of the criteria set out in Axel Springer AG would be inappropriate in the present circumstances. What the Court must examine is whether, in the light of the fundamental principles established in the Court’s case-law, the domestic courts’ finding of civil liability on the part of the applicant was based on relevant and sufficient grounds, given the particular circumstances of the case (see among other authorities, the above-cited cases of Times Newspapers Ltd, §§ 40-43 and Delfi AS, §§ 131-139, ECHR 2015; see also the recent case of Big Brother Watch and Others v. the United Kingdom [GC], nos. 58170/13 and 2 others, § 442 et seq., 22 May 2021). 64. Special attention should be paid in this case to (i) the length of time for which the article was kept online – particularly in the light of the purposes for which V.X.’s data was originally processed; (ii) the sensitiveness of the data at issue and (iii) the gravity of the sanction imposed on the applicant. 65. Regarding the first point, the Court notes that it is true that, as pointed out by the applicant, the criminal proceedings against V.X. and other members of his family were still pending at the time that the Supreme Court adopted its judgement in the applicant’s case. However, it should be noted that the information contained in the article had not been updated since the occurrence of the events in question. Moreover, notwithstanding the formal notice that V.X. sent to the applicant requesting the removal of the article from the Internet, the said article remained online and easily accessible for eight months. 66. In this regard, the applicable domestic law (see Article 11 of Legislative Decree no. 196/2003), read in the light of the international legal instruments ( see Article 5 (e) of the updated Convention ETS no. 108 and Article 17 § 1 a) of the GDPR) supports the idea that the relevance of the applicant’s right to disseminate information decreased over the passage of time, compared to V.X.’s right to respect for his reputation (in this respect, compare and contrast Éditions Plon v. France, no. 58148/00, §§ 53-57, ECHR 2004 ‑ IV, where the more time elapsed, the greater the public interest in discussing of the history of President Mitterrand’s time in office prevailed over the President’s rights with regard to medical confidentiality. In that case, the Court considered in particular that, in any event, the duty of medical confidentiality had already been breached). 67. With regard to the sensitiveness of the data in question in the instant case, the Court is mindful that the subject matter of the article in question related to criminal proceedings instituted against V.X. As can also be seen from several Council of Europe and European Union sources (Article 6 of the updated Convention ETS no. 108 (see paragraph 17 above); CJEU judgment Google Spain (see paragraph 21 above); and GC, AF, BH, ED v. CNIL (see paragraph 24 above), the Court is of the belief that the circumstances in which information concerning sensitive data is published constitutes a factor to be taken into account when balancing the right to disseminate information and the right of a data subject to respect for his or her private life. 68. Concerning the gravity of the sanction, the Court reiterates that the applicant was held liable under civil and not criminal law (contrast Tuomela and Others v. Finland, no. 25711/04, § 62, 6 April 2010, and Savva Terentyev, cited above, § 83). Although the amount of compensation that the applicant was ordered to pay to the claimants for the breach of their right to have their reputations respected was not negligible, the Court is of the view that the severity of the sentence and the amount of compensation awarded for non-pecuniary damage (EUR 5,000 per each claimant) must not be regarded as excessive, given the circumstances of this case. 69. Where the balancing exercise between, on the one hand, freedom of expression protected by Article 10, and, on the other, the right to respect for one’s private life, as enshrined in Article 8 of the Convention, has been undertaken by the national authorities, in conformity with the criteria laid down by the Court’s case-law, the Court would require strong reasons to substitute its view for that of the domestic courts (see, among other authorities, Palomo Sánchez and Others v. Spain [GC], nos. 28955/06 and 3 others, § 57, ECHR 2011, and Delfi AS cited above, § 139). 70. The foregoing considerations are sufficient to enable the Court to conclude that the finding by the domestic jurisdictions that the applicant had breached V.X.’s right to respect for his reputation by virtue of the continued presence on the Internet of the impugned article and by his failure to de-index it constituted a justifiable restriction of his freedom of expression (see, mutatis mutandis, Times Newspapers Ltd, cited above, § 47) – all the more so given the fact that no requirement was imposed on the applicant to permanently remove the article from the Internet. 71. Accordingly, there has been no violation of Article 10 of the Convention. | This was the first case in which the Court had examined whether a journalist’s civil liability for not de-indexing information published on the Internet had been compatible with Article 10 (freedom of expression) of the Convention. The Court held that there had been no violation of Article 10 of the Convention in the present case, finding that the domestic jurisdictions findings had constituted a justifiable restriction on the applicant’s freedom of expression – all the more so given the fact that he had not been obliged to permanently remove the article from the Internet. In particular, the Court noted that not only Internet search engine providers could be obliged to de-index material but also administrators of newspaper or journalistic archives accessible through the Internet, such as the applicant. It also agreed with the domestic courts’ rulings that the prolonged and easy access to information on the criminal proceedings concerning the restaurant owner had breached his right to reputation. |
863 | Video surveillance | THE LAW PRELIMINARY ISSUESLocus standi Locus standi Locus standi 71. The Court observes that the second applicant, Ms A. Gancedo Giménez, died on 25 October 2018, while the case was pending before the Grand Chamber. Her husband and legal heir, Mr J. López Martínez, expressed his wish to continue the proceedings before the Court. 72. The Court would point out that, in a number of cases where an applicant died during the proceedings, it has taken account of the wish expressed by heirs or close relatives to continue them (see, among other authorities, Malhous v. the Czech Republic (dec.) [GC], no. 33071/96, ECHR 2000 ‑ XII; Angelov v. Bulgaria, no. 44076/98, § 28, 22 April 2004; and Nicola v. Turkey, no. 18404/91, § 15, 27 January 2009). 73. In the present case, the Court finds that the heir of the second applicant may have a sufficient interest in the continued examination of the application and thus recognises his capacity to act in her stead. Subject matter of the case before the Grand Chamber 74. In their oral observations before the Grand Chamber, the Government requested that the Court should only re-examine the complaint under Article 8 of the Convention, in respect of which the Chamber had found a violation in its judgment of 9 January 2018 and which was the subject of the Government’s request for referral, as accepted by the panel of the Grand Chamber. They added that the applicants had not submitted any referral request concerning the complaints under Article 6, in respect of which the Chamber had found no violation. 75. The applicants did not comment on the Government’s request but nevertheless asked the Court to review the Chamber’s finding of no violation. 76. The Court reiterates that the content and scope of the “case” referred to the Grand Chamber are delimited by the Chamber’s decision on admissibility (see K. and T. v. Finland [GC], no. 25702/94, §§ 140-41, ECHR 2001 ‑ VII, and Ilnseher v. Germany [GC], nos. 10211/12 and 27505/14, § 100, 4 December 2018). The “case” referred to the Grand Chamber thus necessarily encompasses all the aspects of the application that the Chamber found admissible and is not confined to the “serious issue” of general importance or affecting the interpretation or application of the Convention or the Protocols thereto, under Article 43 of the Convention, in respect of which the referral request has been accepted by the panel (see K. and T. v. Finland, cited above, §§ 140-41). Accordingly, in the present case, the Grand Chamber’s examination will concern all the complaints under Articles 6 and 8 of the Convention that were declared admissible by the Chamber. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 77. The applicants argued that their employer’s decision to dismiss them had been based on recordings obtained by means of video-surveillance in their workplace, in breach of their right to respect for their private life, and that, by refusing to declare their dismissal null and void, the domestic courts had failed in their duty to protect that right. They relied on Article 8 of the Convention, which reads as follows: “1. Everyone has the right to respect for his private ... life ... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” The Chamber judgment 78. In its judgment of 9 January 2018 the Chamber found that Article 8 of the Convention was applicable in the present case. As the disputed video-surveillance measure had been implemented by a private party, it examined the complaint in terms of the State’s positive obligations and sought to ascertain whether the national authorities had struck a fair balance between the applicants’ right to respect for their private life, on the one hand, and their employer’s interest in protecting its rights in connection with the organisation and management of its property, on the other. 79. The Chamber noted that, while the video-surveillance had been set up on account of legitimate suspicions of theft, it had been broad in scope – not being limited in time, affecting all the employees working at the tills and covering all working hours – and had breached the obligation under domestic law to give prior information, to those persons who were concerned by the collection and processing of their personal data, of the existence, purpose and implementation of the measures. Having regard to those factors, the Chamber did not share the opinion of the domestic courts as to the proportionality of the video-surveillance measure taken by the employer. It was of the view, in particular, that the employer’s rights could have been secured by informing the applicants, even in a general manner, of the installation of a video-surveillance system. 80. Consequently, the Chamber found that the domestic courts had failed to strike a fair balance between the applicants’ right to respect for their private life and the other interests at stake, and that there had thus been a violation of Article 8 of the Convention. The Government’s preliminary objection 81. The Government argued that the applicants could have complained to the Data Protection Agency, alleging an infringement by the employer of the Personal Data Protection Act, or could have brought criminal proceedings to complain of a breach of their right to respect for their private life. In their view, those remedies could have resulted in the imposition of an administrative or criminal sanction on the employer. They concluded that the applicants had failed to exhaust the domestic remedies available under domestic law. 82. The applicants submitted that the Data Protection Agency was merely an administrative organ whose authority was confined to imposing pecuniary sanctions in the event of a breach of the data-protection legislation. They took the view that such a sanction, if it were to be imposed on their employer, would not bring them redress for the damage caused to them by the breach of their right to respect for their private life and by their dismissal based on that breach. They added that it was not mandatory to complain to the Agency before the ordinary courts, which had full jurisdiction to interpret and apply the Personal Data Protection Act. 83. The Court notes that the Government only raised the issue of non-exhaustion of domestic remedies for the first time in their written pleadings before the Grand Chamber. It discerns no exceptional circumstances in this case which could have released them from their obligation pursuant to Rule 55 to raise their preliminary objection prior to the adoption of the Chamber’s decision on admissibility. It thus takes the view that the Government are estopped from raising that objection at this stage of the proceedings and that it must be dismissed (see Navalnyy v. Russia [GC], nos. 29580/12 and 4 others, § 61, 15 November 2018). 84. However, in so far as the parties’ arguments on the objection of non-exhaustion raised by the Government have a bearing on the merits of the applicants’ complaint under Article 8 of the Convention, the Court will examine them below. Applicability of Article 8 of the ConventionThe parties’ submissions The parties’ submissions The parties’ submissions (a) The applicants 85. The applicants submitted that the fact they had been continuously filmed in their workplace throughout their entire working day, without their knowledge and without being able to evade the monitoring, resulted in Article 8 of the Convention being applicable. (b) The Government 86. The Government argued that the applicants had been working in a public place, in direct contact with the public. They took the view that, in the absence of a consensus among the member States as to whether such a situation was comprised within the notion of “private life”, the Court should not extend that concept accordingly. They added that the protection of Article 8 could not extend to criminal conduct. The Court’s assessment (a) Principles derived from the Court’s case-law 87. The Court reiterates that the concept of “private life” is a broad term not susceptible to exhaustive definition. It covers the physical and psychological integrity of a person. It can therefore embrace multiple aspects of the person’s physical and social identity (see, as a recent example, Denisov v. Ukraine [GC], no. 76639/11, § 95, 25 September 2018). It extends in particular to aspects relating to personal identity, such as a person’s name or picture (see Schüssel v. Austria (dec.), no. 42409/98, 21 February 2002, and Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, § 95, ECHR 2012). 88. The concept of private life is not limited to an “inner circle” in which the individual may live his or her own personal life without outside interference, but also encompasses the right to lead a “private social life”, that is, the possibility of establishing and developing relationships with others and the outside world (see Bărbulescu v. Romania [GC], no. 61496/08, § 70, 5 September 2017). It does not exclude professional activities in that connection (see Fernández Martínez v. Spain [GC], no. 56030/07, § 110, ECHR 2014 (extracts); Köpke v. Germany (dec.), no. 420/07, 5 October 2010; Bărbulescu, cited above, § 71; Antović and Mirković v. Montenegro, no. 70838/13, § 42, 28 November 2017; and Denisov, cited above, § 100) or activities taking place in a public context (see Von Hannover (no. 2), cited above, § 95). There is thus a zone of interaction of a person with others, even in a public context, which may fall within the scope of “private life” (see P.G. and J.H. v. the United Kingdom, no. 44787/98, § 56, ECHR 2001-IX; Perry v. the United Kingdom, no. 63737/00, § 36, ECHR 2003-IX (extracts); and Von Hannover (no. 2), cited above, § 95). 89. There are a number of elements relevant to a consideration of whether a person’s private life is concerned by measures effected outside a person’s home or private premises. Since there are occasions when people knowingly or intentionally involve themselves in activities which are or may be recorded or reported in a public manner, a person’s reasonable expectations as to privacy may be a significant, although not necessarily conclusive, factor in this assessment (see P.G. and J.H. v. the United Kingdom, cited above, § 57; Bărbulescu, cited above, § 73; and Antović and Mirković, cited above, § 43). As to the monitoring of an individual’s actions using photographic or video devices, the Convention institutions have taken the view that the monitoring of the actions and movements of an individual in a public place using a camera which did not record the visual data does not constitute in itself a form of interference with private life (see Herbecq and the Association “Ligue des Droits de l’Homme ” v. Belgium, nos. 32200/96 and 32201/96, Commission decision of 14 January 1998, Decisions and Reports 92-B, p. 92, and Perry, cited above, § 41). Private-life considerations may arise, however, once any systematic or permanent record of such personal data comes into existence, particularly pictures of an identified person (see Peck v. the United Kingdom, no. 44647/98, §§ 58-59, ECHR 2003 ‑ I; Perry, cited above, §§ 38 and 41; and Vukota-Bojić v. Switzerland, no. 61838/10, §§ 55 and 59, 18 October 2016). As the Court has stated in this connection, a person’s image constitutes one of the chief attributes of his or her personality, as it reveals the person’s unique characteristics and distinguishes the person from his or her peers. The right of each person to the protection of his or her image is thus one of the essential components of personal development and presupposes the right to control the use of that image. Whilst in most cases the right to control such use involves the possibility for an individual to refuse publication of his or her image, it also covers the individual’s right to object to the recording, conservation and reproduction of the image by another person (see Reklos and Davourlis v. Greece, no. 1234/05, § 40, 15 January 2009, and De La Flor Cabrera v. Spain, no. 10764/09, § 31, 27 May 2014). 90. In order to determine whether Article 8 applies, the Court also finds it relevant to address the question whether the individual in question was targeted by the monitoring measure (see Perry, cited above, § 40; Köpke, cited above; and Vukota-Bojić, cited above, §§ 56 and 58) or whether personal data was processed, used or made public in a manner or to a degree surpassing what those concerned could reasonably have foreseen (see Peck, cited above, §§ 62-63; Perry, cited above, §§ 40-41; and Vukota-Bojić, cited above, § 56). 91. As regards, more specifically, the issue of video-surveillance in the workplace, the Court has found that video-surveillance implemented by an employer without the employee’s knowledge, for about fifty hours over a two-week period, and the use of the recordings thus obtained in the proceedings before the employment courts to justify her dismissal, interfered with her right to respect for her private life (see Köpke, cited above). The non-covert video-surveillance of university lecturers while they were teaching, where the recordings had been kept for one month and could be consulted by the dean of the faculty, was also found to have interfered with the applicants’ right to respect for their private life (see Antović and Mirković, cited above, §§ 44-45). (b) Application of those principles to the present case 92. The Court notes that in the present case the applicants were subjected to a video-surveillance measure implemented by their employer in their workplace for a period of ten days, the cameras being directed towards the supermarket checkout area and its surroundings. Thus, while the applicants were not individually targeted by the video-surveillance, it is not in dispute that the first three of them, who were working behind the tills, could have been filmed throughout their working day, while the fourth and fifth applicants were filmed when they were passing through that area. 93. As to whether the applicants had a reasonable expectation that their private life would be protected and respected, the Court observes that their workplace, a supermarket, was open to the public and that the activities filmed there, namely the taking of payments for purchases by the customers, were not of an intimate or private nature. Their expectation as to the protection of their private life was thus necessarily limited. However, even in public places, the creation of a systematic or permanent recording of images of identified persons and the subsequent processing of the images thus recorded could raise questions affecting the private life of the individuals concerned (see paragraph 89 above and the case-law cited therein). The Court notes that in the present case domestic law provided a formal and explicit statutory framework which obliged a person responsible for a video-surveillance system, even in a public place, to give prior information to the persons being monitored by such a system (see paragraphs 47 and 50 above). The applicants had, moreover, been informed about the installation by their employer of other CCTV cameras in the supermarket, those cameras being visible and positioned such as to film the shop’s entrances and exits. In those circumstances the applicants had a reasonable expectation that they would not be subjected to video-surveillance in the other areas of the shop without being informed beforehand. 94. As to the processing and use of the video recordings, the Court notes that they were viewed by a number of people working for the applicants’ employer even before the applicants were informed of their existence. In addition, they constituted the basis of their dismissal and were used in evidence in the Employment Tribunal proceedings. 95. Having regard to the foregoing, the Court finds that Article 8 is applicable in the present case. Compliance with Article 8 of the ConventionThe parties’ submissions The parties’ submissions The parties’ submissions (a) The applicants 96. The applicants began by drawing attention to the fact that the only questions for discussion in the present case were whether their right to respect for their private life had been infringed on account of the introduction of the video-surveillance measure without their knowledge, together with that of the limits imposed by Article 8 of the Convention on the monitoring that an employer was entitled to use against its employees. They took the view that, contrary to what the Government had suggested, the question of their possible criminal liability had already been settled at domestic level and could not be a matter of debate before the Court. 97. The applicants acknowledged that an employer had to be able to install surveillance systems to protect its property but argued that this right should be limited in order to preserve the employees’ right to respect for their private life. They explained that, in the present case, they and all the supermarket staff had been filmed for weeks, throughout the working day, without having been informed beforehand. The monitoring had been implemented in breach of Spanish law, which provided for an obligation for the employer, if not to obtain the consent of the employees, at least to inform them beforehand of the installation of the cameras and of their rights under the data-protection legislation. If such indications had been given, both their right to respect for their private life and the employer’s interests would have been preserved. The applicants thus concluded that, by refusing to find fault with this omission on the part of the employer, the domestic courts had not granted them sufficient protection under Article 8 of the Convention. 98. The applicants were of the opinion that the present case had to be distinguished from that of Köpke v. Germany (decision cited above) on a number of points. They argued that in the Köpke case there had been no specific legislation on video-surveillance in the workplace and the employer had complied with the conditions laid down by the domestic case-law, whereas, in the present case, their employer had breached the domestic legislation without being penalised. Furthermore, the monitoring had been more extensive in their case because it had been introduced without a time-limit, had continued throughout the working day and had involved filming not only the employees under suspicion but the whole staff. 99. The applicants asked the Court to follow the approach adopted in its recent judgment in Bărbulescu v. Romania (cited above), a case about an employer’s monitoring of messaging and internet use by an employee, which in their view laid down the proportionality criteria to be met by any interference by an employer with the right to privacy of its employees. They argued that the measure taken by their employer clearly did not meet these requirements, given the lack of prior information about the introduction of video-surveillance and the rights provided for in the data-protection legislation. They added that this measure was not proportionate since the employer’s interests could have been safeguarded while providing employees with the information required by law. 100. The applicants concluded that, by refusing to acknowledge that the video-surveillance by means of hidden cameras had infringed their right to respect for their private life and by holding, consequently, that their dismissals were lawful, the domestic courts had deprived them of the protection to which they were entitled against improper interference with their privacy by their employer. Contrary to what the Government had argued, this complaint was distinct from those that they had made under Article 6 of the Convention. 101. Moreover, as regards the possibility of complaining to the Spanish Data Protection Agency, the applicants repeated the arguments they had made in response to the Government’s objection of non-exhaustion of domestic remedies (see paragraph 81 above) and submitted that, even if that Agency had found an administrative offence, the imposition of an administrative sanction on the employer would not have provided appropriate redress for the alleged breach of their right to respect for their private life. As to the possibility of seeking redress in the ordinary civil courts, they explained that those courts had no jurisdiction in respect of relations under an employment contract and that the case-law cited by the Government by way of example, concerning a situation in which the employment relationship had been severed two years earlier, could not be transposed to the present case (see paragraph 49 above). In their view, the main consequence of the video-surveillance had been their dismissal, in respect of which only the employment courts had jurisdiction. (b) The Government 102. The Government observed that, as the breach of privacy alleged by the applicants was attributable to a private company and not to the authorities, the Grand Chamber should follow the approach adopted in the case of Von Hannover (no. 2) v. Germany (cited above), in which the Court had examined whether the domestic courts had weighed up the various individual interests at stake and had struck a fair balance between them. In their view, the Spanish courts had performed such a balancing exercise and had taken due account of the applicants’ right to respect for their private life. 103. The Government argued that, even if it would have been desirable for the applicants to have been informed of the installation of the CCTV cameras, the measures taken by the employer had not been disproportionate. They observed that the applicants had been working in an area that was open to the public, that they had been informed of the installation of certain CCTV cameras following the suspicions of theft and that they had knowingly committed criminal acts. The present application was similar to the Köpke case and the distinction made by the Chamber judgment was not justified. They explained in this connection that the monitoring had lasted for only ten days, from 15 to 25 June, on which date the employees under suspicion had been called for individual interview, and that it had been directed not at the whole staff but only at those working in the checkout area, who were in direct contact with the customers. The present case should, by contrast, be distinguished from Bărbulescu as in that case the impugned interference had concerned compliance with the employer’s instructions, which the Court found to have “reduce[d] private social life in the workplace to zero”, whereas the video-surveillance measure at issue had pursued a legitimate aim, namely to shed light on an offence of which the company had been the victim. They added that, as the applicants had worked in an area where they were in direct contact with the public, their expectation of privacy had necessarily been reduced in comparison with a situation involving the confidentiality of communications exchanged via a messaging account. 104. Moreover, relying on their arguments in support of their objection of non-exhaustion of domestic remedies (see paragraph 81 above), the Government maintained that the applicants could have submitted a complaint to the Spanish Data Protection Agency alleging a failure to comply with the Personal Data Protection Act. This agency was an independent body, empowered to monitor the application of data-protection legislation and to impose fines on offenders, whereas the employment courts to which the applicants had taken their case only had jurisdiction to rule on the lawfulness of dismissals. Any failure to comply with data-protection legislation did not automatically lead to a violation of the right to respect for private life, and these two concepts were not to be confused. 105. The Government submitted that the applicants could also have brought an action before the ordinary civil courts to claim compensation for any damage caused by the alleged breach of the Personal Data Protection Act. In support of their argument they submitted a judgment of the Supreme Court, which had awarded compensation to an employee for the unlawful transmission of personal data by his former employer (see paragraph 49 above). 106. The Government concluded that the respondent State had complied with its positive obligations under Article 8 of the Convention and that its responsibility should not be engaged on account of any infringements by a private company or for a failure by the applicants to complain of such infringements to the competent domestic authorities. The third-party’s submissions 107. The European Trade Union Confederation (ETUC), intervening as a third party, expressed its concern that States might not sufficiently protect the privacy of workers in the workplace. It emphasised that the protection of privacy in general and in employment relations in particular was a relatively new aspect of international human rights protection and that the risks for privacy deriving from new technologies were increasing. In its view, this was why international, and in particular European, human rights protection had developed in the sense that, irrespective of the question of permitted processing of personal data as such, those concerned had to be informed. 108. The ETUC stressed that the right to be informed of the collection of personal data was expressly recognised in domestic law under section 5(1) of the Personal Data Protection Act. Highlighting how several European legal instruments (at Council of Europe as well as European Union level) had addressed the protection of privacy, either in the general form of protection of personal data or more specifically in the case of video-surveillance in the workplace, it concluded that the right of the data subject to be informed prior to the processing of his or her personal data was to be regarded as a right derived from Article 8 of the Convention, constituting a procedural safeguard. Moreover, in situations where it was not required to give prior information to the employees themselves, the notification and consultation of their representatives would be essential. The Court’s assessment (a) Positive obligations of the respondent State 109. The Court observes that, in the present case, the video-surveillance measure complained of by the applicants was imposed by their employer, a private company, and cannot therefore be analysed as an “interference”, by a State authority, with the exercise of Convention rights. The applicants nevertheless took the view that, by confirming their dismissals on the basis of that video-surveillance, the domestic courts had not effectively protected their right to respect for their private life. 110. The Court reiterates that although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in effective respect for private or family life. These obligations may necessitate the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves (see Söderman v. Sweden [GC], no. 5786/08, § 78, ECHR 2013, and Von Hannover (No. 2), cited above, § 98). The responsibility of the State may thus be engaged if the facts complained of stemmed from a failure on its part to secure to those concerned the enjoyment of a right enshrined in Article 8 of the Convention (see Bărbulescu, cited above, § 110, and Schüth v. Germany, no. 1620/03, §§ 54 and 57, ECHR 2010). 111. Accordingly, in line with the approach it has followed in similar cases, the Court takes the view that the complaint should be examined from the standpoint of the State’s positive obligations under Article 8 of the Convention (see Bărbulescu, cited above, § 110; Köpke, cited above; and De La Flor Cabrera, cited above, § 32). While the boundaries between the State’s positive and negative obligations under the Convention do not lend themselves to precise definition, the applicable principles are nonetheless similar. In both contexts regard must be had in particular to the fair balance that has to be struck between the competing private and public interests, subject in any event to the margin of appreciation enjoyed by the State (see Palomo Sánchez and Others v. Spain [GC], nos. 28955/06 and 3 others, § 62, ECHR 2011, and Bărbulescu, cited above, § 112). The margin of appreciation goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by independent courts. In exercising its supervisory function, the Court does not have to take the place of the national courts but to review, in the light of the case as a whole, whether their decisions were compatible with the provisions of the Convention relied upon (see Peck, cited above, § 77, and Von Hannover (no. 2), cited above, § 105). 112. The choice of the means calculated to secure compliance with Article 8 of the Convention in the sphere of the relations of individuals between themselves is in principle a matter that falls within the Contracting States’ margin of appreciation. There are different ways of ensuring respect for private life and the nature of the State’s obligation will depend on the particular aspect of private life that is at issue (see Von Hannover (no. 2), cited above, § 104; Söderman, cited above, § 79; and Bărbulescu, cited above, § 113). 113. The Court has already held that, in certain circumstances, the fulfilment of positive obligations imposed by Article 8 requires the State to adopt a legislative framework to protect the right at issue (see X and Y v. the Netherlands, 26 March 1985, §§ 23, 24 and 27, Series A no. 91, and M.C. v. Bulgaria, no. 39272/98, § 150, ECHR 2003 ‑ XII, concerning cases of sexual assault on minors; and Codarcea v. Romania, no. 31675/04, §§ 102 ‑ 04, 2 June 2009, as regards medical negligence). Concerning the gravest acts, such as rape, this obligation may go as far as requiring the adoption of criminal-law provisions (see M.C. v. Bulgaria, cited above, § 150). In respect of less serious acts between individuals which may affect the rights protected under Article 8, the Court takes the view that Article 8 leaves it to the discretion of States to decide whether or not to pass specific legislation and it verifies that the existing remedies were capable of providing sufficient protection of the rights at issue (see, concerning the protection of a minor’s personal integrity, Söderman, cited above, §§ 86-91; and on the right to the protection of one’s image, Von Hannover (no. 2), cited above, §§ 95-126, and Reklos and Davourlis, cited above, §§ 34-43). 114. As regards, more specifically, the monitoring of employees in the workplace, the Court has taken the view that Article 8 leaves it to the discretion of States to decide whether or not to enact specific legislation on video-surveillance (see Köpke, cited above) or the monitoring of the non-professional correspondence and other communications of employees (see Bărbulescu, cited above, § 119). It has nevertheless pointed out that, regardless of the discretion enjoyed by States in choosing the most appropriate means for the protection of the rights in question, the domestic authorities should ensure that the introduction by an employer of monitoring measures affecting the right to respect for private life or correspondence of its employees is proportionate and is accompanied by adequate and sufficient safeguards against abuse (see Bărbulescu, cited above, § 120, and Köpke, cited above). 115. In the Bărbulescu judgment, the Court set out a certain number of requirements that must be met by any monitoring of the correspondence and communications of employees if it is not to breach Article 8 of the Convention (see Bărbulescu, cited above, § 121). It also found in that judgment that, to ensure effective compliance with those requirements, the employees concerned must have access to a remedy before an independent judicial body with jurisdiction to determine, at least in substance, whether the relevant conditions were satisfied (ibid., § 122). 116. The Court is of the view that the principles established in the Bărbulescu judgment, a number of which came from the decision in Köpke, which concerned facts that were similar to those in the present case, are transposable, mutatis mutandis, to the circumstances in which an employer may implement video-surveillance measures in the workplace. These criteria must be applied taking into account the specificity of the employment relations and the development of new technologies, which may enable measures to be taken that are increasingly intrusive in the private life of employees. In that context, in order to ensure the proportionality of video-surveillance measures in the workplace, the domestic courts should take account of the following factors when they weigh up the various competing interests: (i) Whether the employee has been notified of the possibility of video-surveillance measures being adopted by the employer and of the implementation of such measures. While in practice employees may be notified in various ways, depending on the particular factual circumstances of each case, the notification should normally be clear about the nature of the monitoring and be given prior to implementation. (ii) The extent of the monitoring by the employer and the degree of intrusion into the employee’s privacy. In this connection, the level of privacy in the area being monitored should be taken into account, together with any limitations in time and space and the number of people who have access to the results. (iii) Whether the employer has provided legitimate reasons to justify monitoring and the extent thereof. The more intrusive the monitoring, the weightier the justification that will be required. (iv) Whether it would have been possible to set up a monitoring system based on less intrusive methods and measures. In this connection, there should be an assessment in the light of the particular circumstances of each case as to whether the aim pursued by the employer could have been achieved through a lesser degree of interference with the employee’s privacy. (v) The consequences of the monitoring for the employee subjected to it. Account should be taken, in particular, of the use made by the employer of the results of the monitoring and whether such results have been used to achieve the stated aim of the measure. (vi) Whether the employee has been provided with appropriate safeguards, especially where the employer’s monitoring operations are of an intrusive nature. Such safeguards may take the form, among others, of the provision of information to the employees concerned or the staff representatives as to the installation and extent of the monitoring, a declaration of such a measure to an independent body or the possibility of making a complaint. 117. The Court will thus ascertain in the present case whether the domestic law, and in particular its application by the employment courts which examined the applicants’ cases, provided sufficient protection, in weighing up the competing interests, of their right to respect for their private life. (b) Application to the present case of the above-mentioned principles 118. In the present case, the positive obligations imposed on the State by Article 8 of the Convention required the national authorities to strike a fair balance between two competing interests, namely, on the one hand, the applicants’ right to respect for their private life and, on the other, the possibility for their employer to ensure the protection of its property and the smooth operation of its company, particularly by exercising its disciplinary authority. 119. The Court notes at the outset that, at the material time, Spanish law had laid down a legal framework intended to protect the private life of employees in situations such as that in the present case. Thus, the Personal Data Protection Act and Instruction no. 1/2006 specifically on video-surveillance provided for a certain number of safeguards and conditions to be satisfied by any measure of video-surveillance and the ensuing processing of personal data. Failure to provide these safeguards could give rise to administrative sanctions and could engage the civil liability of the person responsible for the data processing (see paragraphs 46 and 48 above). In addition, Article 20 § 3 of the Employment Regulations limited the employer’s use of monitoring, as regards the fulfilment by employees of their employment duties, by requiring that the measures taken in that regard were compatible with their human dignity. Moreover, the applicable rules of procedure required the domestic courts to exclude any evidence obtained in breach of a fundamental right. Lastly, there was case-law of the ordinary courts and the Constitutional Court requiring that any measures interfering with the privacy of employees had to pursue a legitimate aim (“appropriateness test”), and had to be necessary for the fulfilment of the aim pursued (“necessity test”) and proportionate to the circumstances of each case (“strict proportionality test”) (see paragraphs 54 et seq. above). 120. In these circumstances the Court observes that the regulatory framework which was in place under domestic law is not at issue in the present case. The applicants have not in fact questioned the pertinence of that framework (see paragraph 97 above), but they argued that it was precisely the refusal of the employment courts to draw the appropriate conclusions from the employer’s failure to fulfil its domestic-law obligation to provide information which had breached the Convention. 121. Accordingly, the Court will consider the manner in which the domestic courts to which the applicants appealed examined their complaint that their right to respect for their private life in the workplace had been breached and whether, as the Government argued, other domestic-law remedies could have provided them with appropriate protection. 122. The Court would begin by noting that the employment courts identified the various interests at stake, referring expressly to the applicants’ right to respect for their private life and the balance to be struck between that right and the employer’s interest in ensuring the smooth running of the company by exercising its management powers. It will thus ascertain how those courts took into account the factors listed above when they weighed up these interests. 123. The domestic courts first found, in accordance with the requirements of the Constitutional Court’s case-law, that the installation of the video-surveillance had been justified by legitimate reasons, namely the suspicion, put forward by the supermarket manager on account of the significant losses recorded over several months, that thefts had been committed. They also took account of the employer’s legitimate interest in taking measures in order to discover and punish those responsible for the losses, with the aim of ensuring the protection of its property and the smooth functioning of the company. 124. The domestic courts then examined the extent of the monitoring and the degree of intrusion into the applicants’ privacy, finding that the measure was limited as regards the areas and staff being monitored – since the cameras only covered the checkout area, which was likely to be where the losses occurred – and that its duration had not exceeded what was necessary in order to confirm the suspicions of theft. In the Court’s opinion this assessment could not be regarded as unreasonable. It notes that the monitoring did not cover the whole shop but targeted the areas around the tills, where thefts were likely to have been committed. The three applicants who worked as cashiers were indeed monitored by CCTV cameras throughout their working day. As a result of their jobs within the company, they could not evade these recordings, which were aimed at all the staff working in the checkout area, and were operated permanently and without any limitation (contrast Köpke, cited above, concerning an applicant who was both a shop assistant and cashier of the store in question, the video-surveillance measure thus not covering the entirety of her place of work). To some extent, they thus found themselves in limited areas (see, mutatis mutandis, Allan v. the United Kingdom, no. 48539/99, § 35, ECHR 2002 ‑ IX, and Perry, cited above, §§ 39-43). As to the fourth and fifth applicants, the CCTV cameras filmed them whenever they passed through the checkout area. 125. At the same time it should be pointed out that the applicants’ duties were performed in a place that was open to the public and involved permanent contact with customers. The Court takes the view in this connection that it is necessary to distinguish, in the analysis of the proportionality of a video-surveillance measure, the various places in which the monitoring was carried out, in the light of the protection of privacy that an employee could reasonably expect. That expectation is very high in places which are private by nature, such as toilets or cloakrooms, where heightened protection, or even a complete ban on video-surveillance, is justified (see, to this effect, the relevant international instruments cited in paragraphs 61 and 65 above). It remains high in closed working areas such as offices. It is manifestly lower in places that are visible or accessible to colleagues or, as in the present case, to the general public. 126. As regards the extent of the measure over time, the Court notes that while, as the applicants argued, the employer had not set the duration of the video-surveillance beforehand, in actual fact it lasted for ten days and ceased as soon as the employees responsible had been identified. The length of the monitoring does not therefore appear excessive in itself (compare Köpke, cited above, where a duration of fourteen days was not found to be disproportionate). Lastly, only the supermarket manager, the company’s legal representative and the union representative viewed the recordings obtained through the impugned video-surveillance before the applicants themselves had been informed. Having regard to these factors, the Court takes the view that the intrusion into the applicants’ privacy did not attain a high degree of seriousness. 127. As regards the consequences of the impugned monitoring for the applicants, the Court finds that they were significant because the employees concerned were dismissed on the basis of recordings obtained by that means. It nevertheless observes, as the domestic courts also noted, that the video-surveillance and recordings were not used by the employer for any purposes other than to trace those responsible for the recorded losses of goods and to take disciplinary measures against them (compare Peck, cited above, §§ 62-63, where the images recorded by a CCTV camera of public places showing the applicant’s attempted suicide had been distributed to the media). 128. The domestic courts additionally found that, in the circumstances of the case, there were no other means by which to fulfil the legitimate aim pursued and that the measure should therefore be regarded as “necessary” within the meaning of the Constitutional Court’s case-law (see paragraph 33 above). Even if it would have been desirable for the domestic courts to examine in a more in-depth manner the possibility for the employer to have used other measures entailing less intrusion into the private life of the employees, the Court cannot but note that the extent of the losses identified by the employer suggested that thefts had been committed by a number of individuals and the provision of information to any staff member might well have defeated the purpose of the video-surveillance, which was, as those courts noted, to discover those responsible for the thefts but also to obtain evidence for use in disciplinary proceedings against them. 129. The Court further observes that domestic law prescribed a certain number of safeguards for the purpose of preventing any improper interference with the rights of individuals whose personal data was subject to collection or processing. The Personal Data Protection Act in particular conferred on those individuals the right to be informed of such safeguards beforehand, as provided for in section 5 of the Act, together with a right of access, rectification and deletion in respect of the data collected. A requirement of proportionality in the collection and use of the images obtained through video-surveillance was expressly laid down by Instruction no. 1/2006 and, according to the Constitutional Court’s case-law, the domestic courts had to review the appropriateness, necessity and proportionality of such measures in the light of the fundamental rights guaranteed by the Constitution (see paragraphs 47, 50 and 54 above). 130. As to whether, lastly, the applicants had been informed of the installation of the video-surveillance, the Court notes that it was not in dispute that two types of camera had been installed in the supermarket where they worked: on the one hand, visible cameras directed towards the shop’s entrances and exits, of which the employer had informed the staff; and, on the other, hidden cameras directed towards the checkout areas, of which neither the applicants nor the other staff members had been informed. It was stated in the parties’ observations that one or more information boards had been placed in the supermarket to notify the public of the presence of CCTV cameras but the exact content of the information on these boards has not been ascertained. 131. The Court observes that, while both Spanish law and the relevant international and European standards do not seem to require the prior consent of individuals who are placed under video-surveillance or, more generally, who have their personal data collected, those rules establish that it is, in principle, necessary to inform the individuals concerned, clearly and prior to implementation, of the existence and conditions of such data collection, even if only in a general manner (see paragraphs 47, 60 and 63 above). It takes the view that the requirement of transparency and the ensuing right to information are fundamental in nature, particularly in the context of employment relationships, where the employer has significant powers with regard to employees and any abuse of those powers should be avoided (see paragraphs 61-62 and 64-65 above). It would point out, however, that the provision of information to the individual being monitored and its extent constitute just one of the criteria to be taken into account in order to assess the proportionality of a measure of this kind in a given case. However, if such information is lacking, the safeguards deriving from the other criteria will be all the more important. 132. In the present case, the Court observes that the employment courts which examined the applicants’ claims carried out a detailed balancing exercise between, on the one hand, their right to respect for their private life, and on the other the employer’s interest in ensuring the protection of its property and the smooth operation of the company. It notes that the proportionality criteria established by the Constitutional Court’s case-law and followed in the present case are close to those which it has developed in its own case-law. The domestic courts thus verified whether the video-surveillance was justified by a legitimate aim and whether the measures adopted for that purpose were appropriate and proportionate, having observed in particular that the legitimate aim pursued by the employer could not be attained by measures that were less intrusive for the applicants’ rights. 133. Admittedly, the employment courts did not take account of the employer’s failure, as alleged by the applicants, to provide them with the prior information required by section 5 of the Personal Data Protection Act, having considered the matter irrelevant and not capable of calling into question the proportionality, in the constitutional sense, of the measure, provided that the other criteria laid down by the Constitutional Court were satisfied. Given the importance of the right to information in such cases, the Court finds that only an overriding requirement relating to the protection of significant public or private interests could justify the lack of prior information. 134. However, in the specific circumstances of the present case, having regard particularly to the degree of intrusion into the applicants’ privacy (see paragraphs 125-26 above) and to the legitimate reasons justifying the installation of the video-surveillance, the Court finds that the employment courts were able, without overstepping the margin of appreciation afforded to national authorities, to take the view that the interference with the applicants’ privacy was proportionate (see, for a similar situation, Köpke, cited above). Thus, while it cannot accept the proposition that, generally speaking, the slightest suspicion of misappropriation or any other wrongdoing on the part of employees might justify the installation of covert video-surveillance by the employer, the existence of reasonable suspicion that serious misconduct has been committed and the extent of the losses identified in the present case may appear to constitute weighty justification. This is all the more so in a situation where the smooth functioning of a company is endangered not merely by the suspected misbehaviour of one single employee, but rather by the suspicion of concerted action by several employees, as this creates a general atmosphere of mistrust in the workplace. 135. Moreover, as the Government argued, the applicants had other remedies available to them, as provided for by the Personal Data Protection Act, for the specific purpose of obtaining sanctions for breaches of that legislation. The applicants could thus have complained to the Data Protection Agency of a failure by the employer to fulfil its obligation to provide prior information, as required by section 5 of that Act. The Agency had the power to investigate the alleged breach of the law and impose financial penalties on the person responsible. They could also have referred the matter to the ordinary courts in order to obtain redress for the alleged breach of their rights under the Personal Data Protection Act. The Court notes in this connection that while the case-law cited by the Government (see paragraph 49 above) does indeed concern a situation which is not identical to that of the present case, the right to obtain redress for damage caused by a breach of the Personal Data Protection Act was expressly provided for in section 19 thereof and there is no reason to question the effectiveness of that remedy now. 136. Domestic law had thus made available to the applicants other remedies by which to secure the specific protection of personal data, but they chose not to use those remedies. The Court reiterates in this connection that the effective protection of the right to respect for private life in the context of video-surveillance in the workplace may be ensured by various means, which may fall within employment law but also civil, administrative or criminal law (see, mutatis mutandis, Bărbulescu, cited above, § 116). 137. Under those circumstances, having regard to the significant safeguards provided by the Spanish legal framework, including the remedies that the applicants failed to use, and the weight of the considerations justifying the video-surveillance, as taken into account by the domestic courts, the Court concludes that the national authorities did not fail to fulfil their positive obligations under Article 8 of the Convention such as to overstep their margin of appreciation. Accordingly, there has been no violation of that provision. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 138. Under Article 6 of the Convention, the applicants complained that recordings obtained in breach of their right to respect for their private life had been admitted and used in evidence by the employment courts. 139. The third, fourth and fifth applicants further argued that the acknowledgment of the validity of the settlement agreements that they had signed, allegedly following deceitful manipulation by the employer, had also breached their right to a fair hearing. 140. The relevant parts of Article 6 provide as follows: “1. In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” Chamber judgment 141. In its judgment of 9 January 2018 the Chamber reiterated that, in order to assess compliance with Article 6 of the Convention, it was required to determine whether the proceedings as a whole, including the way in which evidence had been taken, had been fair. Finding that the applicants had been able to challenge both the authenticity and the admission in evidence of the footage obtained by means of video-surveillance and that this was not the only evidence on which the courts had based their decisions, it concluded that there had been no violation of Article 6 on this point. 142. As regards the settlement agreements, the Chamber found that the three applicants in question had had ample opportunity to challenge their validity in the domestic courts, which had taken the view, without any appearance of arbitrariness, that no duress on the employer’s part had vitiated the applicants’ consent. It thus found that there had been no violation of Article 6 under this head either. The parties’ submissionsThe applicants The applicants The applicants 143. The applicants submitted that the domestic courts had based their decisions mainly on recordings obtained by their employer in a manner that was unlawful and in breach of their right to privacy. Consequently, in their view, the mere admission of these recordings in evidence entailed a violation of Article 6 of the Convention. The applicants further submitted that both the obtaining of this evidence and its use in the proceedings constituted an abuse by the employer of its dominant position and a breach of the equality of arms. In this connection, they pointed out that they had not been aware of the existence of the video-surveillance and had not had access to the recordings until they had been produced in evidence in the context of the judicial proceedings to which they were parties. As to the other evidence, in particular the witness testimony, on which the domestic courts had relied, it had been “vitiated” by the prior viewing of the footage by those concerned. 144. The third, fourth and fifth applicants further argued that, when they had signed the settlement agreements, they had been misled as to the significance of the concession made by their employer. They stated that the law obliged any individual to report a criminal offence on becoming aware of it and that the employer could not therefore validly waive the right to file a criminal complaint. In those circumstances, the courts should have declared the settlement agreements null and void and excluded them from the case file. In support of their argument they adduced a judgment of the Catalonia High Court of 19 October 2010 in the case of one of their colleagues, Ms D. The Government 145. The Government agreed with the findings of the Chamber judgment, which they invited the Grand Chamber to confirm. As to the use of footage recorded by means of video-surveillance, they asserted that the recordings had been used merely to complement other evidence in the file and that the applicants had had the opportunity to contest their use and authenticity in the domestic courts. 146. As regards the settlement agreements, the Government argued that, as found by the domestic courts, they had been signed without any pressure from the employer. They submitted that it was the applicants who had breached these agreements by bringing the matter before the Employment Tribunal in spite of the undertaking given and that, even so, their appeals had been duly examined by the courts. They argued that, while those courts had indeed taken into account the applicants’ acknowledgment of the facts as reflected in the agreements, they had also had other evidence at their disposal. Lastly, with regard to the case of Ms D., cited by the applicants, they explained that, while the High Court had certainly overturned an initial judgment on the ground that, according to that judgment, the settlement agreement in question had deprived the employee of her right to take legal action, the courts examining the case after it was remitted had ultimately considered that the settlement agreement was nevertheless valid and could be used to prove the acknowledgment of the facts by the person concerned. The third-party’s submissions 147. The European Trade Union Confederation was of the view that a judgment mainly based on recordings from covert video-surveillance was in breach of Article 6 of the Convention. 148. As regards the settlement agreements signed by the third, fourth and fifth applicants, the ETUC pointed out that such agreements were often used when confronting workers with alleged misconduct, creating a situation where the employees felt under specific pressure, were not properly advised and were not in a position to demand the recognition of their procedural and substantive rights. The ETUC concluded that the specificity of employment relations required a cautious approach to the recognition of such agreements. The Court’s assessmentGeneral principles General principles General principles 149. The Court reiterates that its only duty, in accordance with Article 19 of the Convention, is to ensure the observance of the engagements undertaken by the States Parties to the Convention. In particular, it is not competent to deal with an application alleging that errors of law or fact have been committed by domestic courts, except where it considers that such errors might have involved a possible violation of any of the rights and freedoms set out in the Convention. While Article 6 guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence as such, which is primarily a matter for regulation under national law (see Schenk v. Switzerland, 12 July 1988, § 45, Series A no. 140, and García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999 ‑ I). Normally, issues such as the weight attached by the national courts to given items of evidence or to findings or assessments in issue before them for consideration are not for the Court to review. The Court should not act as a court of fourth instance and will not therefore question under Article 6 § 1 the judgment of the national courts, unless their findings can be regarded as arbitrary or manifestly unreasonable (see Bochan v. Ukraine (no. 2) [GC], no. 22251/08, § 61, ECHR 2015). 150. It is therefore not the role of the Court to determine, as a matter of principle, whether particular types of evidence – for example, evidence obtained unlawfully in terms of domestic law – may be admissible. The question which must be answered is whether the proceedings as a whole, including the way in which the evidence was obtained, were fair. This involves an examination of the unlawfulness in question and, where the violation of another Convention right is concerned, the nature of the violation found (see P.G. and J.H. v. the United Kingdom, cited above, § 76, and Gäfgen v. Germany [GC], no. 22978/05, § 163, ECHR 2010). 151. As regards the nature of the unlawfulness or of the Convention violation, while the use of evidence secured as a result of a measure found to be in breach of Article 3 always raises serious issues as to the fairness of the proceedings (see Gäfgen, cited above, § 165), the question whether the use in evidence of information obtained in violation of Article 8 or of domestic law rendered a trial as a whole unfair, contrary to Article 6, has to be determined with regard to all the circumstances of the case, including respect for the applicant’s defence rights and the quality and importance of the evidence in question. In particular, it must be examined whether the applicant was given an opportunity to challenge the authenticity of the evidence and to oppose its use. In addition, the quality of the evidence must be taken into consideration, as must the question whether the circumstances in which it was obtained cast doubt on its reliability or accuracy (see Schenk, cited above, §§ 46-48; P.G. and J.H. v. the United Kingdom, cited above, §§ 77-79; and Gäfgen, cited above, § 164). While no problem of fairness necessarily arises where the evidence obtained was unsupported by other material, it may be noted that where the evidence is very strong and there is no risk of its being unreliable, the need for supporting evidence is correspondingly weaker (see Gäfgen, cited above, § 164). 152. The Court notes that the principles set out above concerning the admissibility of evidence were developed in a criminal-law context, although it has already had occasion to apply them in a case concerning the fairness of civil proceedings (see Vukota-Bojić, cited above, §§ 92-100). It observes that, while the “fair trial” guarantees are not necessarily the same in criminal-law and civil-law proceedings, the States having greater latitude when dealing with civil cases, it may nevertheless draw inspiration, when examining the fairness of civil-law proceedings, from the principles developed under the criminal limb of Article 6 (see Carmel Saliba v. Malta, no. 24221/13, § 67, 29 November 2016). In the present case, the Court takes the view that the principles in question are applicable to its examination of the fairness of the civil proceedings at issue. Application to the present case 153. The Court will examine the complaint of a violation of Article 6, made by all five applicants on the basis of the admission in evidence of recordings from video-surveillance, and then the complaint of a violation of that provision made by the third, fourth and fifth applicants in respect of the acceptance of the settlement agreements signed by them. (a) Consideration of the video-surveillance images as part of the evidence 154. The Court points out that it has not found a violation of Article 8 of the Convention on account of the video-surveillance to which the applicants were subjected (see paragraph 137 above). It notes, however, that the applicants argued that the video-surveillance had been installed in breach of the statutory obligation under domestic law to provide prior information and that the employment courts did not address that question, having deemed it not to be pertinent (see paragraph 34 above). The Court will thus examine whether the use in evidence of the images obtained by means of the video-surveillance at issue undermined the fairness of the proceedings as a whole. 155. The Court begins by noting that, in the context of the proceedings before the Employment Tribunal, the applicants had access to the recordings obtained by means of the impugned video-surveillance and were able to contest their authenticity and oppose their use in evidence. The domestic courts examined the applicants’ argument that the recordings had to be excluded from the case file because they had been obtained in breach of a fundamental right and in their decisions they gave extensive reasoning on this point. They thus found that, in line with the Constitutional Court’s case-law, the video-surveillance had not been implemented in breach of the applicants’ right to respect for their private life. They further found that the images obtained from the video-surveillance were not the only items of evidence in the file. 156. As regards the quality of evidence, the Court notes that the applicants did not at any time dispute the authenticity or accuracy of the footage recorded by means of video-surveillance, their main complaint being based on the lack of prior information about the installation of the cameras. The domestic courts, for their part, found that the recordings presented sufficient guarantees of authenticity. Given the circumstances in which the recordings were obtained, the Court does not see any reason to question their authenticity or reliability. It thus takes the view that they constituted sound evidence which did not necessarily need to be corroborated by other material. 157. The Court would nevertheless note that the recordings in question were not the only evidence on which the domestic courts based their findings. It can be seen from their decisions that they also took account of the applicants’ statements, the testimony of the supermarket manager, the company’s legal representative and the staff representative – to whom the applicants had admitted the misconduct – and the expert’s report comparing the images recorded by the video-surveillance and the till receipts. The Court observes that the till receipts, which constitute objective evidence that cannot be “vitiated” by the viewing of the recordings, showed that a significant number of purchases had been cancelled without payment. As regards the third, fourth and fifth applicants, the courts also relied on their acknowledgment of the facts in the settlement agreements they had signed. Having examined this evidence as a whole, they found the facts to be comprehensively established. 158. In the light of the foregoing, the Court takes the view that the use in evidence of the images obtained by video-surveillance did not undermine the fairness of the proceedings in the present case. (b) Consideration of the settlement agreements signed by the third, fourth and fifth applicants 159. The Court would begin by observing that the domestic courts accepted the settlement agreements signed by these three applicants, having taken the view that their consent had not been vitiated. However, unlike the Employment Tribunal, which had found that, by signing those agreements, they had waived their right to take legal action, the High Court, ruling on appeal, found that those agreements did not constitute a waiver by the applicants of their right of access to a court and it examined the case on the merits. It took the view that the agreements gave effect to the unequivocal acceptance by the applicants of the employer’s decision to terminate their employment contracts on the grounds set out in the dismissal letter. In those circumstances, the Court finds that the complaint, as set out by the applicants, relates to the assessment by the domestic courts of the validity and weight of evidence. 160. It notes in this connection that the three applicants were able to dispute the validity of the settlement agreements and oppose their admission in evidence. The domestic courts analysed all the arguments put forward by those applicants and took the view that the circumstances of the present case did not indicate any intimidation or deceit on the part of the employer. They examined the circumstances in which the agreements had been signed and found that the presence of the union representative at the time of signing, the prior acknowledgment of the acts by the applicants during a meeting with that representative, and the fact that other employees who were dismissed had not signed the employer’s proposed agreement, ruled out any indication of duress. Their findings in this connection appear neither arbitrary nor manifestly unreasonable. Lastly, as noted above, the domestic courts based their decisions on various items of evidence (see paragraph 157 above). 161. In the light of those observations, there is no reason for the Court to call into question the findings of the domestic courts as to the validity and weight of the settlement agreements signed by the third, fourth and fifth applicants. It thus finds that there has been no violation of Article 6 on this point either. | The Grand Chamber held that there had been no violation of Article 8 of the Convention in respect of the five applicants. It found in particular that the Spanish courts had carefully balanced the rights of the applicants – supermarket employees suspected of theft – and those of the employer, and had carried out a thorough examination of the justification for the video-surveillance. A key argument made by the applicants was that they had not been given prior notification of the surveillance, despite such a legal requirement, but the Court found that there had been a clear justification for such a measure owing to a reasonable suspicion of serious misconduct and to the losses involved, taking account of the extent and the consequences of the measure. In the present case the domestic courts had thus not exceeded their power of discretion (“margin of appreciation”) in finding the monitoring proportionate and legitimate. The Court also held that there had been no violation of Article 6 § 1 (right to a fair trial) of the Convention, finding in particular that the use of the video material as evidence had not undermined the fairness of the trial. |
186 | Domestic violence | II. RELEVANT DOMESTIC LAW Relevant criminal law 41. The relevant parts of the Criminal Code ( Kaznenei zakon Republike Hrvatske, Official Gazette nos. 110/1997, 28/1998, 50/2000, 129/2000, 51/2001, 11/2003, 105/2004, 84/2005 and 71/2006 ) read as follows: Article 75 “ A security measure of compulsory psychiatric treatment may be imposed only as regards a perpetrator who, at the time of committing a criminal offence, suffered from significantly diminished responsibility [and] where there is a risk that the factors giving rise to the state [of diminished responsibility] might incite the future commission of a further criminal offence. A security measure of compulsory psychiatric treatment may be imposed, under the conditions set out in paragraph 1 of this Article, during the execution of a prison sentence, in lieu of a prison sentence or together with a suspended sentence. Compulsory psychiatric treatment shall be imposed for as long as the grounds for its application exist, but [it shall not] in any case exceed the prison term ... Compulsory psychiatric treatment shall not under any circumstances exceed three years. ... ” BODILY INJURY Article 98 “ Anyone who inflicts bodily injury on another person or impairs another person's health shall be fined or sentenced to imprisonment for a term not exceeding one year.” Article 102 “Criminal proceedings for the offence of inflicting bodily injury (Article 98) shall be instituted by means of private prosecution.” THREATS Article 129 “(1) Anyone who threatens another person with harm in order to intimidate or disturb that person shall be fined up to one hundred and fifty monthly wages or sentenced to imprisonment for a term not exceeding six months. (2) Anyone who seriously threatens to kill another person ... shall be fined or sentenced to imprisonment for a term not exceeding one year. ... (4) Criminal proceedings for the criminal offences defined in paragraphs 1 and 2 of this Article shall be instituted upon [a private] application.” VIOLENT BEHAVIOUR WITHIN THE FAMILY Article 215a “A family member who by an act of violence, ill-treatment or particularly contemptuous behaviour places another family member in a humiliating position shall be sentenced to imprisonment for a term of between six months and five years.” Relevant minor offences law 42. The relevant provisions of the Protection against Domestic Violence Act (Official Gazette no. 116/2003, Zakon o zaštiti of nasilja u obitelji ) provide: Section 1 “This Act defines the term domestic violence, persons considered as family members within the meaning of this Act, the manner of protection of family members and the types and purpose of minor offences sanctions.” Section 2 “(1) The provisions of the Minor Offences Act are to be applied in respect of minor offences in the sphere of domestic violence, unless otherwise provided by this Act. (2) All proceedings instituted under this Act shall be urgent.” Section 4 “Domestic violence is: – any use of physical force or psychological pressure against a person's integrity; – any other act by a family member which might cause physical or mental suffering; – causing fear, fear for personal safety or harm to a person's dignity; – physical assault irrespective of whether it has caused injury; – verbal assaults, insults, cursing, calling names or other forms of serious harassment; – sexual harassment; – stalking and all other forms of harassment; – illegal isolation of a person or restricting his or her freedom of movement or communication with others; – causing damage to or destruction of property or attempting to do so .” Types and purpose of minor offences sanctions for protection from domestic violence Section 6 “(1) Minor offences sanctions for protection from domestic violence are fines, imprisonment and protective measures. ... ” Protective measures Section 7 “A court may order the following protective measures against the perpetrator of an act of domestic violence ( a) compulsory psycho-social treatment; ( b) prohibiting access to the victim's proximity; ( c) prohibition on harassing and stalking the victim of violence; ( d) removal from flat, house or other living premises; ( e) providing protection to a person exposed to violence; ( f) compulsory treatment for addiction; ( g) seizure of objects intended for or used in the commission of a minor offence.” Purpose of protective measures Section 8 “The purpose of protective measures is to prevent domestic violence, to secure the necessary protection of the health and safety of a person exposed to violence and to remove the circumstances favourable to or capable of inciting the commission of a further minor offence.” Protective measure of compulsory psycho-social treatment Section 9 “(1) A protective measure of obligatory psycho-social treatment may be imposed in respect of the perpetrator of an act of domestic violence in order to put an end to the violent behaviour of the perpetrator or where there is a risk that the perpetrator might reoffend against persons under section 3 of this Act. (2) The measure under paragraph 1 of this section shall remain in place as long as the reasons for which it has been imposed exist, but for no longer than six months. ... ” Protective measure prohibiting access to the victim's proximity Section 10 “(1) A protective measure prohibiting access to the victim's proximity may be imposed against a person who has committed an act of domestic violence where there is a risk that he or she might reoffend. (2) A decision imposing a measure prohibiting access to the victim's proximity shall define the places or areas covered as well as the distance of access. (3) The duration of a measure under paragraph one of this section shall not be shorter than one month or exceed one year. ... ” Protective measure prohibiting the harassing and stalking of a victim of violence Section 11 “(1) A protective measure prohibiting the harassing and stalking of a victim of violence may be ordered against a person who has committed violence by harassing or stalking and where there is a danger of his or her reoffending against persons under section 3 of this Act. (2) The measure under paragraph 1 of this section shall be ordered for a period from one month to one year. ... ” Protective measure of providing protection to a person exposed to violence Section 13 “(1) A protective measure of providing protection to a person exposed to violence may be ordered in respect of a person exposed to violence for his or her physical protection and to enable him or her to take from home his or her personal documents, clothes, money or other items necessary for everyday life. (2) The measure under paragraph 1 of this section shall include an order to the police to escort the person exposed to violence and protect that person while he or she takes his or her personal items and to escort him or her while leaving the home. (3) The duration of this measure shall be defined by the duration of implementation of the court order.” Ordering of protective measures Section 16 “(1) Protective measures may be ordered at the request of a person exposed to violence or of the police, or of the court's own motion. (2) The protective measures under section 7 ( a) and ( g) shall be ordered by the court of its own motion. (3) The protective measures under this Act shall be ordered for a period which shall not be less than one month, nor shall it exceed two years from the date when a decision in minor offence proceedings has become final or from the date of completion of a prison term, if not otherwise provided under this Act.” Section 17 “(1) The protective measures under section 7 ( b), ( c), ( d) and g) of this Act may be ordered independently even where no other sanction has been imposed. (2) The protective measures under paragraph 1 of this section may be imposed at the request of a person who has lodged a request for minor offences proceedings to be instituted, in order to remove a direct risk to the life of persons exposed to violence or other family members. (3) A court shall give a decision under paragraphs 1 and 2 of this section within 48 hours. ... ” Responsibility for non-compliance with a protective measure Section 20 “(1) The perpetrators of domestic violence are obliged to comply with the protective measure [ordered against them ]. (2) Persons who do not comply with the protective measure ordered against them shall be punished for a minor offence by a fine which may not be less than 3,000 Croatian kuna or by at least forty days'imprisonment. ... ” 43. The relevant part of the Minor Offences Act ( Zakon o Prekršajima, Official Gazette no. 88/2002 ) reads: Section 30 “A fine may be prescribed in respect of an individual in a minimum amount of 300 Croatian kuna and a maximum amount of 10,000 Croatian kuna ... ” Section 31 “ The prison term may be prescribed for a minimum duration of three days and a maximum of thirty days. On an exceptional basis, in respect of the most serious minor offences, it may be prescribed for a maximum duration of sixty days. ... ” 44. The relevant provisions of the Enforcement of Prison Sentences Act ( Zakon o izvršavanju kazne zatvora, Official Gazette nos. 128/1999 and 190/2003) read as follows: PURPOSE OF A PRISON TERM Section 2 “The main purpose of a prison term, apart from humane treatment and respect for the personal integrity of the person serving the prison term, ... is the development of his or her capacity to live after release in accordance with the laws and general customs of society.” INDIVIDUAL PRGRAMME FOR ENFORCEMENT OF A PRISON TERM Section 69 (1) The individual programme for the enforcement of a prison term (hereinafter “the enforcement programme”) consists of a combination of pedagogical, working, leisure, health, psychological and safety activities and measures aimed at adapting the time spent in detention to the character traits and needs of the prisoner and the type and possibilities of the particular penitentiary or prison. The enforcement programme shall be designed with a view to fulfilling the purposes of a prison term under section 7 of this Act. (2) The enforcement programme shall be designed by the prison governor on a proposal from the penitentiary or prison expert team ... (3) The enforcement programme shall contain information on ... special procedures ( ... psychological and psychiatric assistance ... special security measures ... ) ... ” THE LAW I. ALLEGED VIOLATION OF ARTICLES 2, 3 and 8 OF THE CONVENTION 48. The applicant complained that by failing to afford her adequate protection against B's violence the State authorities had failed to comply with their positive obligations. She relied on Articles 2, 3 and 8 of the Convention, the relevant parts of which read : Article 2 – Right to life “1. Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. ... ” Article 3 – Prohibition of torture “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Article 8 – Right to respect for private and family life “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Admissibility 49. The Court notes that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties'submissions 50. The applicant argued that the State authorities had failed in their positive obligations under Articles 2, 3 and 8 of the Convention in respect of the acts of violence committed against her by B. She maintained that although the national courts, in both criminal and minor offences proceedings, had imposed certain sanctions and ordered certain measures, most of these had not been enforced, thereby seriously undermining any meaningful purpose of those proceedings. The national courts had also misapplied the relevant provisions of the applicable substantive and procedural law. 51. She also argued that the requirement for her to prove an immediate risk to her life in order to have a protective measure of prohibition on harassing and stalking a victim of violence applied put a disproportionate burden on her as the victim of violent acts (see paragraph 3 5 above). In any event the Z. Minor Offences Court had had sufficient proof of a risk to her life because at that time B had already been convicted of uttering death threats against her (see paragraph 20 above). 52. The applicant further maintained that owing to the failure of the national authorities to provide her with adequate protection against B's violence she had to live in fear for her physical integrity and for her life, had had to hide in the shelter, together with C, and had also had to move to a secret address. 53. The Government argued that in Croatia the protection of victims of domestic violence was ensured through the mechanisms of criminal law, and in particular the Protection against Domestic Violence Act. In the present case the relevant authorities had reacted to the incidents of violence against the applicant by B, had instituted several sets of both criminal and minor offences proceedings and had applied such criminal sanctions and protective measures against B as they had considered proper and suitable in the circumstances. The Government submitted that the prison term imposed on B for not paying in full the fine imposed in the decision of the Z. Minor Offences Court of 2 October 2006 had not been enforced because Z. Prison had been full to capacity. Likewise, the measure of compulsory psycho-social treatment imposed on B in the same decision had not been implemented owing to the lack of licensed individuals or agencies able to execute such a protective measure (see paragraphs 3 1 and 3 4 above). 54. In addition, the Government had adopted two national strategies for protection against domestic violence (the first one covering the period between 2005 and 2007 and the second covering the period between 2008 and 2010) which included, inter alia, the education of all those involved in cases of domestic violence and cooperation with the non-governmental organisations working in that field as well as financial and other support for them. Thus, in 2008 only sixteen new shelters with a total of 329 places for the victims of violence had been established, of which six were State-funded. 2. The Court's assessment 55. The Court takes note of B's repeated violent behaviour towards the applicant. The facts in issue concern frequent episodes of violence in the period between November 2003 and June 2006, amounting to some two years and seven months. The violence was both verbal, including serious death threats, and physical, including hitting and kicking the applicant in the head, face and body, causing her injuries. In view of the fact that all the incidents of domestic violence in the present case concerned the same perpetrator and occurred in a continual manner, the Court will examine them as a continuous situation. 56. The Court takes further note of the psychiatric reports concerning B which indicated that he suffered from several mental disorders, including a severe form of PTSD, emphasised his tendency towards violence and his reduced ability to control his impulses, and reiterated the recommendation for continuing compulsory psychiatric treatment (see paragraphs 6, 12 and 13 above). 57. The above facts show that the applicant made credible assertions that over a prolonged period of time B presented a threat to her physical integrity and had actually attacked her on a number of occasions. In view of these facts, the Court considers that the State authorities had a positive obligation to protect the applicant from the violent behaviour of her (former) husband. This obligation might arise under all three Articles of the Convention relied upon, namely Articles 2, 3 and 8. However, in order to avoid further analysis as to whether the death threats against the applicant engaged the State's positive obligation under Article 2 of the Convention, as well as issues pertinent to the threshold for the purposes of Article 3 of the Convention, the Court will analyse the circumstances of the present case from the standpoint of Article 8 of the Convention. 58. In this connection the Court reiterates that there is no doubt that the events giving raise to the present application pertain to the sphere of private life within the meaning of Article 8 of the Convention. Indeed, the physical and moral integrity of an individual is covered by the concept of private life. The concept of private life extends also to the sphere of the relations of individuals between themselves. There appears, furthermore, to be no reason in principle why the notion of “private life” should be taken to exclude attacks on one's physical integrity (see X and Y v. the Netherlands, 26 March 1985, § 23, Series A no. 91). 59. While the essential object of Article 8 is to protect the individual against arbitrary action by the public authorities, there may in addition be positive obligations inherent in effective “respect” for private and family life and these obligations may involve the adoption of measures in the sphere of the relations of individuals between themselves (see, mutatis mutandis, X and Y, cited above, §§ 23-24; Mikulić v. Croatia, no. 53176/99, § 57, ECHR 2002-I; and Sandra Janković v. Croatia, no. 38478/05, § 44, ECHR 2009 ‑ ... (extracts) ). 60. As regards respect for private life, the Court has previously held, in various contexts, that the concept of private life includes a person's physical and psychological integrity. Under Article 8 States have a duty to protect the physical and moral integrity of an individual from other persons. To that end they are to maintain and apply in practice an adequate legal framework affording protection against acts of violence by private individuals (see X and Y, cited above, §§ 22 and 23; Costello-Roberts v. the United Kingdom, 25 March 1993, § 36, Series A no. 247-C; D.P. and J.C. v. the United Kingdom, no. 38719/97, § 118, 10 October 2002; M.C. v. Bulgaria, no. 39272/98, §§ 150 and 152, ECHR 2003 ‑ XII; Bevacqua and S. v. Bulgaria, no. 71127/01, § 65, 12 June 2008; and Sandra Janković, cited above, § 45 ). 61. The Court will therefore examine whether Croatia, in dealing with the applicant's case, has been in breach of its positive obligations under Article 8 of the Convention (see, mutatis mutandis, Handyside v. the United Kingdom, 7 December 1976, § 49, Series A no. 24). (a) Measures ordered and implemented ( i ) Detention 62. As to the measures taken against B by the Croatian authorities, the Court notes that one of the measures applied against B was his pre-trial detention. Thus, in the criminal proceedings on charges of violent behaviour within the family, instituted on 21 November 2005 (see §§ 7–17 above), B was detained from 21 November to 20 December 2005. These proceedings concerned the allegations of physical and verbal violence against the applicant in the period between November 2003 and August 2005 as well as the allegations of child molestation. They are still pending. 63. In the proceedings concerning the charges of making death threats against the applicant and a policewoman, instituted on 1 March 2006 (see §§ 18-22 above), B was detained from 30 June to 24 October 2006. ( ii ) Other protective measures 64. Further to B's detention, the national courts applied some other measures against him. Thus, in the last-mentioned proceedings concerning death threats against the applicant and a policewoman, the Zagreb Municipal Court also issued a restraining order against B, prohibiting access to the applicant at a distance of less than three hundred metres and prohibiting contact with the applicant. 65. In the minor offences proceedings on charges of domestic violence, instituted on 26 March 2006, the Zagreb Minor Offences Court ordered a protective measure prohibiting access to the applicant at a distance of less than one hundred metres for a period of one year (see §§ 29-35 above). (b) Measures recommended or ordered and not followed or complied with 66. However, the Court notes that some further recommendations and measures were not followed or complied with. It must be stated at this juncture that it is not the Court's task to verify whether the domestic courts correctly applied domestic criminal law; what is in issue in the present proceedings is not individual criminal-law liability, but the State's responsibility under the Convention. The Court must grant substantial deference to the national courts in the choice of appropriate measures, while also maintaining a certain power of review and the power to intervene in cases of manifest disproportion between the gravity of the act and the results obtained at domestic level (see, mutatis mutandis, Nikolova and Velichkova v. Bulgaria, no. 7888/03, § 62, 20 December 2007; Atalay v. Turkey, no. 1249/03, § 40, 18 September 2008; and Beganović v. Croatia, no. 46423/06, § 78, ECHR 2009 ‑ ... ). 67. In this connection the Court notes that the obligation on the State under Article 8 of the Convention in cases involving acts of violence against an applicant would usually require the State to adopt adequate positive measures in the sphere of criminal-law protection. The Court stresses that the Convention is a living instrument which must be interpreted in the light of present-day conditions and that the increasingly high standard being required in the area of the protection of human rights and fundamental liberties correspondingly and inevitably requires greater firmness in assessing breaches of the fundamental values of democratic societies (see, mutatis mutandis, Selmouni v. France, [GC], no. 25803/94, § 101, ECHR 1999-V; Mayeka and Mitunga v. Belgium, no. 13178/03, § 48, ECHR 2006 ‑ XI; and Sandra Janković, cited above, § 47 ). Bringing to justice perpetrators of violent acts serves mainly to ensure that such acts do not remain ignored by the relevant authorities and to provide effective protection against them. (i ) Detention 68. In the criminal proceedings instituted on 1 March 2006 the Zagreb Municipal Court, in a judgment of 16 October 2006, found B guilty on two counts of making death threats, against the applicant and against a policewoman, and sentenced him to eight months'imprisonment. B has not yet started to serve that prison term. 69. In one of the sets of minor offences proceedings on charges of domestic violence a decision was adopted on 2 October 2006 ordering the applicant to pay a fine in the amount of HRK 6,000. He paid only HRK 1,000 and the remaining HRK 5,000 was supplemented by a prison term, but B never served his prison sentence. The Government explained that this was because Z. Prison was full to capacity. 70. Instead he was arrested as late as 4 September 2009 in a separate set of criminal proceedings concerning charges of death threats against a judge and her daughter, and was placed in pre-trial detention. In these proceedings a judgment sentencing B to three years'imprisonment was adopted on 19 October 2009. (ii ) Psychiatric treatment 71. At the same time an order was made for B to undergo psychiatric treatment. While the Court agrees that this measure was desirable, it cannot but note that it was not applied in connection with any proceedings concerning B's violence against the applicant. Furthermore, it was applied several years after the applicant had reported frequent incidents involving verbal and physical violence and death threats by B. The Court also notes that the Government have provided no information as to whether an individual programme for the execution of B's prison term was designed by the prison governor as required under section 69 of the Enforcement of Prison Sentences Act. An individual programme of this kind in respect of B takes on additional importance in view of the fact that his prison term was combined with a measure as significant as compulsory psychiatric treatment ordered by the domestic courts in relation to the serious death threats he had made (see, by way of comparison, Branko Tomašić and Others v. Croatia, no. 46598/06, § 56, ECHR 2009 ‑ ... ). 72. In this connection the Court notes that as early as December 2004 a psychiatrist who examined B found that he suffered from chronic PTSD, with symptoms that included lowered tolerance of frustration, latent aggressiveness, a worsening of his condition and impaired social functioning, in particular in family life. In another psychiatric report, dated January 2008, it was found that B was in need of continuing psychiatric control and supervision and that a regular programme of therapy would preserve his relatively stable mental condition and hence diminish the likelihood of his repeating the criminal offences and, in practical terms, remove the risk to his environment. 73. In one set of minor offences proceedings on charges of domestic violence, a decision of 2 October 2006 ordered that the applicant should undergo psycho-social treatment in order to address his mental health problems in connection with his violent behaviour (see paragraph 3 1 above). However, owing to the lack of licensed individuals or agencies able to execute such a protective measure, it was never enforced (see §§ 31-33 above). (iii ) Fines 74. The Court notes that the Government have not submitted any information showing that the fine of HRK 2,000 which B was ordered to pay in the minor offences proceedings on 20 November 2006 has been enforced. Further to that, in another set of minor offences proceedings, he was ordered to pay a fine in the amount of HRK 7,000 on 19 July 2007. However, the national courts allowed these proceedings to become time-barred when they were pending before the appeal court. (c) Conclusion 75. The Court stresses that its task is not to take the place of the competent Croatian authorities in determining the most appropriate methods of protecting individuals from attacks on their personal integrity, but rather to review under the Convention the decisions that those authorities have taken in the exercise of their power of appreciation (see Sandra Janković, cited above, § 46). 76. In line with the principle stated above, the Court is also aware that it is for the national authorities to organise their legal systems so as to comply with their positive obligations under the Convention, and in that respect it is of course possible to conduct separate sets of criminal proceedings against the same defendant in respect of different criminal offences involving the same victim. However, in a situation such as the one in the present case, where different sets of criminal and minor offences proceedings concerned a series of violent acts by the same person, namely B, and against the same victim, namely the applicant, it appears that the requirement of effective protection of the applicant's right to respect for her private life would have been better satisfied had the authorities been in a position to view the situation as a whole. That would have given them a better overview of the situation and an opportunity of addressing the need to protect the applicant from various forms of violence in the most appropriate and timely manner. 77. The Court recognises that the national courts instituted several sets of minor offences and criminal proceedings against B, in the context of which they ordered certain measures such as periods of pre-trial detention, psychiatric or psycho-social treatment, restraining and similar orders and even a prison term. By ordering these measures the Croatian authorities showed that they considered them adequate and necessary in order to address the situation of violence against the applicant. The Court cannot but agree with that approach. 78. The national courts never overturned the measures in question or held that they were no longer necessary. However, as explained above in detail, many of these measures, such as periods of detention, fines, psycho-social treatment and even a prison term, have not been enforced (see paragraphs 6 8 -7 4 above) and the recommendations for continuing psychiatric treatment, made quite early on, were complied with as late as 19 October 2009 and then in the context of criminal proceedings unrelated to the violence against the applicant. In addition, it is not certain that B has as yet undergone any psychiatric treatment (see paragraph 2 3 above ). The Court stresses that the main purpose of imposing criminal sanctions is to restrain and deter the offender from causing further harm. However, these aims can hardly be achieved without the sanctions imposed being enforced. 79. The national authorities failed to implement measures ordered by the national courts, aimed on the one hand at addressing B's psychiatric condition, which appear to have been at the root of his violent behaviour, and on the other hand at providing the applicant with protection against further violence by B. They thus left the applicant for a prolonged period in a position in which they failed to satisfy their positive obligations to ensure her right to respect for her private life. 80. There has accordingly been a violation of Article 8 of the Convention. In view of that finding, the Court considers that no separate issue remains to be examined under Articles 2 and 3 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 81. The applicant further complained of the unfairness of the criminal and minor offences proceedings instituted against B. She relied on Article 6 § 1 of the Convention, the relevant part of which provides : “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...” 82. The Court notes that the applicant cannot rely on Article 6 of the Convention in so far as her complaint relates to criminal proceedings against third persons. Furthermore, the complaints made by the applicant have been examined above in connection with the complaint under Article 8 of the Convention. 83. It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4. III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 84. The applicant alleged that she had no effective remedy in respect of her complaint under the Convention. She relied on Article 13 of the Convention, which provides : “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 85. The Government contested that argument. 86. The Court notes that this complaint is linked to the one examined above under Article 8 of the Convention and must therefore likewise be declared admissible. 87. The applicant argued that because of the failure of the national authorities to enforce their own decisions adopted in various proceedings instituted against B on charges of verbal and physical violence against her, she had no effective remedy by which to obtain protection against B's violence. The Court notes that these very same issues have already been examined above under Article 8 of the Convention and have led to a finding of a violation of that Article. Therefore, the Court considers that in the specific circumstances of the present case it is not necessary to examine whether, in this case, there has been a violation of Article 13 of the Convention. IV. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION 88. The applicant further complained that the relevant laws relating to domestic violence were insufficient and ineffective and that since acts of domestic violence were predominantly committed against women, those laws were also discriminatory. She relied on Article 14 of the Convention, which provides : “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” 1. The parties'submissions 89. The applicant concentrated her arguments concerning the alleged violation of Article 14 on three main points. Firstly, she argued that the legislation pertinent to the incidents of domestic violence was discriminatory in that it provided for minor offences proceedings in respect of all acts of domestic violence, including instances of serious physical abuse, while such violence occurring outside a domestic context was dealt with through ordinary criminal-law mechanisms. Furthermore, although a measure of compulsory psychiatric treatment was provided for by law, in practice it had been entirely ineffective. 90. Secondly, she argued that although the Government had adopted two national strategies for protection against domestic violence (in 200 5 and 20 08 ) neither had been implemented. In that connection she stressed that the training of experts working in the context of domestic violence was insufficient and that there had been no evaluation of such training. 91. Thirdly, the applicant maintained that the statistics relating to the application of protective measures under the Protection against Domestic Violence Act showed that in 2007, in the City of Zagreb, 173 cases concerning domestic violence had been processed under that Act. In 98 of these cases a request had been made for the application of protective measures; such measures had actually been applied in only eleven cases, while in 40 cases they had been refused and in 47 cases a judge had made no comments on the request for a protective measure. The applicant submitted further official statistics showing that out of 172 sets of minor offences proceedings conducted in 2007, 132 had ended by finding both (former) spouses guilty. Of these, 70 cases had resulted in a sentence of imprisonment, 38 of which had been suspended. In the remaining 16 cases in which only one (former) spouse was found guilty, men had been the perpetrators in 14 cases and women in 2, while the other cases had been terminated without a conviction. 92. Separate statistics were submitted regarding the length of proceedings instituted under the Protection against Domestic Violence Act before the High Minor Offences Court, which is an appeal court in minor offences cases. In 2007 that court received 1, 568 cases under the said Act. In 461 cases the proceedings had lasted thirty days, in 574 cases between 31 and 60 days, in 420 cases they had lasted between 61 and 120 days and in 67 cases more than 121 days. 93. The Government argued that there had been no discriminatory treatment of the applicant by any of the authorities involved. Unlike in the Opuz case (see Opuz v. Turkey, no. 33401/02, ECHR 2009 ‑ ... ), the facts of the present case showed that none of the authorities had treated the incidents of violence against the applicant as a family matter they could not interfere with. Furthermore, none of the officials had in any manner tried to dissuade the applicant from pursuing her claims against B. 2. The Court's assessment 94. The Court has already accepted that a general policy or measure which is apparently neutral but has disproportionately prejudicial effects on persons or groups of persons who, as for instance in the present case, are identifiable only on the basis of gender, may be considered discriminatory notwithstanding that it is not specifically aimed at that group (see, mutatis mutandis, Hugh Jordan v. the United Kingdom, no. 24746/94, § 154, 4 May 2001; Hoogendijk v. the Netherlands (dec.), no. 58461/00, 6 January 2005; and Oršuš and Others v. Croatia [GC], no. 15766/03, § 150, ECHR 2010 ‑ ... ), unless that measure is objectively justified by a legitimate aim and the means of achieving that aim are appropriate, necessary and proportionate. Furthermore, discrimination potentially contrary to the Convention may result from a de facto situation (see Zarb Adami v. Malta, no. 17209/02, § 76, ECHR 2006 -VIII). Where an applicant produces prima facie evidence that the effect of a measure or practice is discriminatory, the burden of proof will shift on to the respondent State, to whom it falls to show that the difference in treatment is not discriminatory (see Oršuš and Others, cited above, § 1 50 ). 95. The Court notes that in Opuz, on the basis of reports submitted by the applicants and prepared by the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) Committee, the Diyarbakır Bar Association and Amnesty International, it found that general and discriminatory judicial passivity in Turkey, albeit unintentional, had mainly affected women, and considered that the violence suffered by the applicant and her mother could be regarded as gender-based violence which was a form of discrimination against women. Despite the reforms carried out by the Government in recent years, the overall unresponsiveness of the judicial system and the impunity enjoyed by the aggressors, as found in that case, indicated that there had been insufficient commitment to take appropriate action to address domestic violence ( see Opuz, cited above, § 200). 96. In support of these findings the Court relied on the Turkish Government's recognition of the general attitude of the local authorities, such as the manner in which the women were treated at police stations when they reported domestic violence, and judicial passivity in providing effective protection to victims (see Opuz, cited above, § 192). Furthermore, the reports submitted indicated that when victims reported domestic violence to police stations, police officers did not investigate their complaints but sought to assume the role of mediator by trying to convince the victims to return home and drop their complaint. In this connection, police officers considered the problem as a family matter with which they could not interfere (see Opuz, cited above, §§ 92, 96, 102 and 195 ). The reports also showed that there were unreasonable delays in issuing injunctions and in serving injunctions on the aggressors, given the negative attitude of the police officers. Moreover, the perpetrators of domestic violence did not seem to receive dissuasive punishments, because the courts mitigated sentences on the grounds of custom, tradition or honour (see Opuz, cited above, §§ 91-93, 95, 101, 103, 1 06 and 196 ). 97. The Court notes at the outset that in the present case the applicant has not submitted any reports in respect of Croatia of the kind concerning Turkey in the Opuz case. There is not sufficient statistical or other information disclosing an appearance of discriminatory treatment of women who are victims of domestic violence on the part of the Croatian authorities such as the police, law-enforcement or health-care personnel, social services, prosecutors or judges of the courts of law. The applicant did not allege that any of the officials involved in the cases concerning the acts of violence against her had tried to dissuade her from pursuing the prosecution of B or giving evidence in the proceedings instituted against him, or that they had tried in any other manner to hamper her efforts to seek protection against B's violence. 98. Starting from the arguments submitted by the applicant (see paragraphs 89 -9 2 above), the Court will proceed to examine whether they disclose prima facie evidence of discrimination on the basis of gender. 99. As regards the applicant's arguments related to the legislative provisions covering the incidents of domestic violence, the Court stresses that it is for legislators and politicians to deal with the issues pertinent to devising general criminal policy, including the prevention of crime, in a given legal system (see Branko Tomašić and Others, cited above, § 7 3 ). The Court's task is to review under the Convention the decisions that those authorities have taken. 100. The Court notes that, in Croatia, incidents of domestic violence may be addressed both in minor offences proceedings and in ordinary criminal proceedings. In the Court's view, the fact that certain acts of domestic violence may be the subject of minor offences proceedings does not in itself appear discriminatory on the basis of gender. In this connection the Court notes that various types of sanctions and measures may be applied in those proceedings, such as fines of up to HRK 10,000, a prison term of up to sixty days and the preventive measures listed in sections 7-10 of the Protection against Domestic Violence Act (see paragraph 4 2 above). In addition to that the criminal offence of violent behaviour within the family under Article 215a of the Criminal Code is punishable by a prison term ranging from six months to five years. In the Court's view the legislative framework in question does not show any appearance of discrimination on the basis of gender. Thus, in the present case several sets of both minor offences and criminal proceedings were instituted against B. 101. The Court has already established that not all the sanctions and measures ordered or recommended in the context of these proceedings were complied with. While this failure appears problematic from the standpoint of Article 8 of the Convention, it does not in itself disclose an appearance of discrimination or discriminatory intent on the basis of gender in respect of the applicant. 102. As regards the national strategies for protection against domestic violence adopted in 2008 and 2010, the Court notes that the applicant's allegation that the training of relevant experts had been insufficient is unsupported by any relevant examples, data or reports and cannot in itself lead to a conclusion of gender discrimination in the treatment of incidents of domestic violence in Croatia. 103. As regards the statistics concerning the implementation of protective measures, the information submitted is again incomplete and unsupported by relevant analysis and thus not capable of leading the Court to draw any conclusions on that basis. As regards the other statistics submitted, the only worrisome data is that out of 173 sets of minor offences proceedings conducted in 2007 in connection with incidents of domestic violence, in 132 sets of proceedings both spouses were found guilty. However, no such findings were made in the cases concerning the applicant. 104. Against the background described above, the Court finds that the applicant has not produced sufficient prima facie evidence that the measures or practices adopted in Croatia in the context of domestic violence, or the effects of such measures or practices, are discriminatory. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 105. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 106. The applicant claimed 20,000 euros (EUR) in respect of non ‑ pecuniary damage. 107. The Government deemed the amount claimed excessive and unsubstantiated. 108. Having regard to all the circumstances of the present case, the Court accepts that the applicant suffered non-pecuniary damage which cannot be compensated for solely by the finding of a violation. Making its assessment on an equitable basis, the Court awards the applicant EUR 9 ,000 in respect of non-pecuniary damage, plus any tax that may be chargeable to her. B. Costs and expenses 109. The applicant also claimed HRK 8,659. 30 for the costs and expenses incurred before the Constitutional Court and HRK 23,515.60 for those incurred before the Court. 110. The Government submitted that the applicant was not entitled to any costs and expenses before the national courts. 111. According to the Court's case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court accepts that the applicant's constitutional complaint was aimed at remedying the situation of violation claimed by the applicant in the present case. It therefore awards the claim for costs and expenses in the domestic proceedings in the amount of EUR 1,200 and considers it reasonable to award the sum of EUR 3,270 for the proceedings before the Court, plus any tax that may be chargeable to her on those amounts. C. Default interest 112. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court declared the applicant’s complaint under Article 14 (prohibition of discrimination) of the Convention inadmissible, on the ground, in particular, that she had not given sufficient evidence (such as reports or statistics) to prove that the measures or practices adopted in Croatia against domestic violence, or the effects of such measures or practices, were discriminatory. It further held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention in that the Croatian authorities had failed to implement many of the measures ordered by the courts to protect the applicant or deal with her ex-husband’s psychiatric problems, which appeared to be at the root of his violent behaviour. |
472 | Preliminary ruling | II. RELEVANT DOMESTIC AND EUROPEAN UNION LAW 26. Certain provisions concerning the Constitutional Court ’ s power of review in connection with constitutional complaints were set out in Mendrei (cited above, §§ 12-15). Section 43 of the Constitutional Court Act, which was not quoted in Mendrei (cited above), provides as follows: “(1) If the Constitutional Court, in the course of proceedings provided for in section 27 and on the basis of a constitutional complaint, declares that a judicial decision is contrary to the Fundamental Law, it shall quash the decision. (2) Provisions of Acts that contain regulations in respect of court proceedings shall be applied to the procedural consequence of a Constitutional Court decision that quashes a judicial decision. (3) In court proceedings conducted as a consequence of the quashing of a judicial decision by the Constitutional Court, the decision of the Constitutional Court as to the constitutional issue shall be adhered to. (4) The Constitutional Court, when it quashes a judicial decision, may also quash judicial decisions or the decisions of other authorities which were reviewed by the given decision.” 27. The provisions of the old Code of Civil Procedure (Act no. III of 1952) pertaining to the reference for a preliminary ruling, as in force at the material time, were set out in Somorjai, cited above, §§ 28 and 36. Article 361 of the old Code of Civil Procedure provided as follows: “In order to provide redress following a constitutional complaint, the Kúria shall decide as follows: ... (c) if the Constitutional Court has quashed a judicial decision, [the Kúria ] shall ... remit the case to the first or second-instance court for new proceedings and a new decision; or order the adoption of a new decision in respect of an application for review.” 28. The relevant European Union law and the case-law of the CJEU pertaining to the preliminary ruling procedure was outlined in, among other authorities, Somorjai (cited above, §§ 38-41) and Baydar v. the Netherlands (no. 55385/14, §§ 21-29, 24 April 2018). 29. Article 47 of the Charter of Fundamental Rights of the European Union provides, in so far as relevant: Right to an effective remedy and to a fair trial “Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article. Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented. ...” 30. Article 17(2 )( a) of the Sixth Directive (Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes), as amended by Article 28f thereof, provides: “In so far as the goods and services are used for the purposes of his taxable transactions, the taxable person shall be entitled to deduct from the tax which he is liable to pay: (a) [VAT] due or paid within the territory of the country in respect of goods or services supplied or to be supplied to him by another taxable person; ...” 31. In its Köbler judgment (C-224/01, EU :C:2003:513, point 1 of the operative part), the CJEU ruled as follows: “The principle that Member States are obliged to make good damage caused to individuals by infringements of Community law for which they are responsible is also applicable where the alleged infringement stems from a decision of a court adjudicating at last instance where the rule of Community law infringed is intended to confer rights on individuals, the breach is sufficiently serious and there is a direct causal link between that breach and the loss or damage sustained by the injured parties. In order to determine whether the infringement is sufficiently serious when the infringement at issue stems from such a decision, the competent national court, taking into account the specific nature of the judicial function, must determine whether that infringement is manifest. It is for the legal system of each Member State to designate the court competent to determine disputes relating to that reparation.” 32. In connection with the role of the national courts in application of European Union law, the CJEU held, among other things, as follows (see, respectively, joined cases C-430/93 and C-431/93 Van Schijndel, EU:C:1995:441, point 2 of the operative part; and C-2/06 Kempter, EU:C:2008:78, paragraph 45): “Community law does not require national courts to raise of their own motion an issue concerning the breach of provisions of Community law where examination of that issue would oblige them to abandon the passive role assigned to them by going beyond the ambit of the dispute defined by the parties themselves and relying on facts and circumstances other than those on which the party with an interest in application of those provisions bases his claim.” “[W] hile Community law does not require national courts to raise of their own motion a plea alleging infringement of Community provisions where examination of that plea would oblige them to go beyond the ambit of the dispute as defined by the parties, they are obliged to raise of their own motion points of law based on binding Community rules where, under national law, they must or may do so in relation to a binding rule of national law ...” THE LAW ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 33. The applicant complained of the failure of the domestic courts, namely the Kúria and the Constitutional Court, to refer questions raised by its case to the CJEU for a preliminary ruling – in breach of the conditions laid down in the CJEU ’ s case-law. The applicant contended that this failure had violated its right of access to a court, notably the CJEU, which had jurisdiction to give the necessary mandatory interpretation of the European Union law provisions at issue. It relied on Article 6 § 1 of the Convention, which, in so far as relevant, reads as follows: “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” A. Admissibility 1. Compliance with the six-month time-limit 34. The Government argued that the application had been submitted outside the six-month time-limit, which had started to run when the Kúria ’ s judgment had been served on the applicant on 7 February 2014. In the Government ’ s view, a constitutional complaint was a legal avenue to be exhausted when it came to the unfairness of proceedings and, in particular, a lack of appropriate reasoning (see also Somorjai v. Hungary, no. 60934/13, § 44, 28 August 2018). However, they contended that in the present case the proceedings before the Constitutional Court could not be taken into account for the assessment of the applicant ’ s compliance with the six-month time ‑ limit, since its complaint had been rejected as inadmissible by the Constitutional Court and thus the proceedings could not be considered an effective remedy for the purposes of Article 35 § 1 of the Convention. 35. The applicant argued that the Constitutional Court had not rejected its constitutional complaint on purely procedural grounds; rather, the decision contained arguments pertaining to the merits of the case. It further contended that the application also challenged the Constitutional Court ’ s decision, and in that respect it had in any event been submitted within the six-month time-limit. 36. The Court has already found that a constitutional complaint is normally an effective remedy to be exhausted for the purposes of Article 35 § 1 of the Convention (see Szalontay v. Hungary ( dec. ), no. 71327/13, 12 March 2019). It further notes that although the Constitutional Court eventually rejected the applicant company ’ s constitutional complaint, it did not do so on formal or procedural grounds; rather, it embarked on an analysis of the case and held that it lacked jurisdiction; in reaching this conclusion, it in fact partly dealt with the substance of the applicant company ’ s complaint (see mutatis mutandis Uhl v. Germany ( dec. ), no. 64387/01, 6 May 2004; see also Schwarzenberger v. Germany, no. 75737/01, §§ 21 and 31, 10 August 2006; and Storck v. Germany, ( dec. ), no. 61603/00, 26 October 2004). Since moreover this outcome cannot be considered foreseeable by the applicant company when it approached the Constitutional Court, the Court is satisfied that the constitutional complaint was a remedy that it could reasonably engage in. The relevant date is therefore the date of the final decision given by the Constitutional Court, that is to say, 19 May 2014, and it is appropriate to reject the Government ’ s objection concerning compliance with the six-month time-limit. 2. Applicability of Article 6 of the Convention 37. The Government further argued that the Constitutional Court ’ s task was to determine issues of constitutional law, rather than those of civil rights and obligations. On that ground, they requested the Court to declare the application incompatible ratione materiae with Article 6 of the Convention in so far as it concerned the Constitutional Court ’ s alleged interference with the applicant ’ s rights guaranteed by that provision. 38. In the applicant ’ s view, when the Constitutional Court decided on a constitutional complaint lodged against a civil judgment of the Kúria, it was carrying out a civil judicial function. Its proceedings therefore fell within the scope of Article 6. 39. As regards the question of the applicability of Article 6 to the constitutional complaint procedure, the Court notes that in accordance with its well-established case-law the relevant test is whether the result of the Constitutional Court proceedings is capable of affecting the outcome of a dispute before the ordinary courts that otherwise falls within the scope of Article 6 (see, mutatis mutandis, Süßmann v. Germany, 16 September 1996, § 39, Reports of Judgments and Decisions 1996 ‑ IV, and Gast and Popp v. Germany, no. 29357/95, § 64, ECHR 2000 ‑ II). 40. The Court observes that under the old Code of Civil Procedure, the consequence of a successful constitutional complaint directed against a judicial decision under section 27 of the Constitutional Court Act was that the decision in question had to be quashed by the Constitutional Court and the case had to be remitted for new consideration to the first or second-instance court or to the Kúria (see paragraphs 26 and 27 above). Therefore, the result of the Constitutional Court proceedings at issue in the present case was capable of affecting the outcome of the dispute before the ordinary courts. 41. It follows that Article 6 of the Convention is applicable to the impugned proceedings before the Constitutional Court and that the Government ’ s objection as to the incompatibility ratione materiae of this part of the complaint with the aforementioned provision of the Convention must be rejected. 42. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ submissions 43. The applicant argued that although the Kúria had referred, in its decision of 2 October 2013 (see paragraph 19 above), to the CJEU ’ s Cilfit requirements and had provided, formally, certain reasons for its decision rejecting the request to refer the case for a preliminary ruling, in substance it had failed to comply with the criteria and methodological requirements set forth in Cilfit and in Ullens de Schooten and Rezabek v. Belgium (nos. 3989/07 and 38353/07, §§ 56-62, 20 September 2011). The applicant submitted, in particular, that the Kúria had not cited any case in which the CJEU had already examined the main issue raised by the present case (notably the exclusion of Köbler -type liability when the plaintiff had not invoked the relevant European Union law provision in the previous set of proceedings). It was of the view that the Kúria had acted in an arbitrary and abusive manner when it had simply referred to the Cilfit judgment but rejected the request to refer the case to the CJEU for a preliminary ruling purely on the basis of considerations pertaining to domestic law. 44. The applicant company further contended that the Constitutional Court had rejected its request for a preliminary reference without providing any reason whatsoever as to how and why it had come to that conclusion and, in particular, without giving consideration to its potential qualification as “a tribunal against whose decisions there is no judicial remedy” for the purposes of Article 267 of the TFEU, thus violating its right to access to a court, notably the CJEU. 45. The Government argued that the Kúria had provided ample and appropriate reasons as to why it had considered it unnecessary to refer the relevant questions to the CJEU for a preliminary ruling. They submitted that the CJEU had accepted the possible limitation of the national courts ’ obligation to examine, of their own motion, issues of European Union law, notably in circumstances where this would have interfered with the principle of those courts being bound by the parties ’ claims brought before them. In the Government ’ s view, the courts could not be held liable for consequences resulting from the argumentation strategy of the plaintiff ’ s lawyer in any of the European legal systems. The Government contended that in the present case the applicant ’ s claim for damages had been ill-founded on that ground and therefore the Kúria had rightly come to the conclusion, and also provided due reasons in that respect, that reference for a preliminary ruling in connection with the questions proposed by the applicant had not been warranted. 46. The Government further submitted that the Constitutional Court had had no competence to review the content of the reasons provided by the Kúria, its competence being limited to verification of whether reasons had been provided or not. In the complete absence of reasons behind the Kúria ’ s decision, the applicant would have been unable to complain about their content before the Constitutional Court; it had therefore been obvious to the Constitutional Court that the Kúria had complied with its obligation to provide reasons for its decision. In the light of the above, the Government argued that, given the limits of its competence, the Constitutional Court had not been required to examine the constitutional complaint under the European Union law provisions relied on by the applicant, or to provide reasons in that respect. 47. Lastly, the Government contended that, under Article 6 of the Convention, the applicant had no right as such to have the case referred to the CJEU and that the obligation to provide reasons for refusing to refer a case fell upon the Kúria, which had complied with it. In such circumstances, the fairness of the proceedings, as a whole, had not been prejudiced. 2. The Court ’ s assessment (a) General principles 48. The Court recalls that it is for the national courts to interpret and apply domestic law, if applicable in conformity with European Union law, and to decide on whether it is necessary to seek a preliminary ruling from the CJEU to enable them to give judgment. It reiterates that the Convention does not guarantee, as such, the right to have a case referred by a domestic court to another national court or to the CJEU for a preliminary ruling. The Court has previously observed that this matter is, however, not unconnected to Article 6 § 1 of the Convention since a domestic court ’ s refusal to grant a referral may, in certain circumstances, infringe the fairness of proceedings where the refusal proves to have been arbitrary. Such a refusal may be deemed arbitrary in cases where the applicable rules allow no exception to the granting of a referral or where the refusal is based on reasons other than those provided for by the rules, or where the refusal was not duly reasoned. Indeed, the right to a reasoned decision serves the general rule enshrined in the Convention which protects the individual from arbitrariness by demonstrating to the parties that they have been heard and obliges the courts to base their decision on objective reasons (see Ullens de Schooten and Rezabek v. Belgium, cited above, §§ 54-59). As the Court has often noted, the rule of law and the avoidance of arbitrary power are principles underlying the Convention. In the judicial sphere, those principles serve to foster public confidence in an objective and transparent justice system, one of the foundations of a democratic society (see Taxquet v. Belgium [GC], 16 November 2010, no. 926/05, § 90 and the cases cited therein). 49. The obligation under Article 6 § 1 of the Convention for domestic courts to provide reasons for their judgments and decisions cannot, however, be understood to mean that a detailed answer to every argument is required. The extent to which the duty to provide reasons applies may vary according to the nature of the decision. It is necessary to take into account, inter alia, the diversity of the submissions that a litigant may bring before the courts and the differences existing in the Contracting States with regard to statutory provisions, customary rules, legal opinion and the presentation and drafting of judgments. That is why the question of whether or not a court has failed to fulfil the obligation to provide reasons − deriving from Article 6 of the Convention − can only be determined in the light of the circumstances of the case (see, among many other authorities, Tibet Menteş and Others v. Turkey, nos. 57818/10 and 4 others, § 48, 24 October 2017 and the cases cited therein). 50. These principles are amply reflected in the Court ’ s case-law. For example, in Dhahbi v. Italy (no. 17120/09, § 31, 8 April 2014) and Schipani and others v. Italy (no. 38369/09, § 42, 21 July 2015), where violations of Article 6 § 1 of the Convention were found for a total absence of providing reasons for a refusal to ask for a preliminary ruling, the Court formulated the following principles regarding the domestic courts ’ duty under that provision in situations where an explicit request was made for a referral to the CJEU for a preliminary ruling and where the request was accompanied by a due argumentation: “... Article 6 § 1 requires domestic courts to provide reasons, in the light of the applicable law, for any decision refusing to refer a question for a preliminary ruling; – when the Court hears a complaint alleging a violation of Article 6 § 1 on this basis, its task consists in ensuring that the impugned refusal was duly accompanied by such reasoning; – whilst this verification has to be carried out in a thorough manner, it is not for the Court to examine any errors that might have been committed by the domestic courts in interpreting or applying the relevant law; and – in the specific context of the third paragraph of Article 234 of the Treaty establishing the European Community (current Article 267 of the TFEU), this means that national courts against whose decisions there is no judicial remedy under national law, and which refuse to request a preliminary ruling from the CJEU on a question raised before them concerning the interpretation of EU law, are required to give reasons for such refusal in the light of the exceptions provided for by the case-law of the CJEU. They must therefore indicate the reasons why they have found that the question is irrelevant, that the European Union law provision in question has already been interpreted by the CJEU, or that the correct application of EU law is so obvious as to leave no scope for any reasonable doubt.” 51. By contrast, the Court has held that where a request to obtain a preliminary ruling was insufficiently pleaded or where such a request was only formulated in broad or general terms, it is acceptable under Article 6 of the Convention for national superior courts to dismiss the complaint by mere reference to the relevant legal provisions governing such complaints if the matter raises no fundamentally important legal issue (see John v. Germany ( dec. ), no. 15073/03, 13 February 2007). The Court has come to the same conclusion in a case where the applicant had failed to explicitly ask for a preliminary ruling (see Greneche and Others v. France ( dec. ), no. 34538/08, 15 October 2013). It must however, also in this context, ascertain that decisions of national courts are not flawed by arbitrariness or otherwise manifestly unreasonable, this being the limit of the Court ’ s competence in assessing whether domestic law has been correctly interpreted and applied (see, mutatis mutandis, Talmane v. Latvia, no. 47938/07, § 29, 13 October 2016). (b) Application of these principles to the present case. 52. As to the scope of the complaint, the Court notes that, on the one hand, the applicant company complained of a violation of its right of access to a court, whereas on the other, developing that complaint, it mainly addressed the lack of reasoning by the domestic courts for the refusal to make a preliminary reference to the CJEU. The Court, being the master of the characterisation to be given in law to the facts (see Guerra and Others v. Italy, 19 February 1998, § 44, Reports 1998-I), considers that the essence of the applicant ’ s grievances is a lack of proper reasoning and will examine the application under Article 6 § 1 in that sense. 53. The Court observes that the Kúria found the first question proposed by the applicant irrelevant (notably in the absence of any disagreement between the parties), and that it did not find it necessary to refer the remaining questions to the CJEU either. ( i ) As regards the Kúria ’ s decisions 54. While in principle the Kúria agreed with the applicant that the claim for damages at issue was to be adjudicated in accordance with the CJEU ’ s Köbler case-law (see, in particular, paragraph 31 above), it stressed that the Supreme Court had been prevented, under the applicable procedural rules, from examining, in its 2009 judgment rendered in the first set of proceedings, the arguments that had been raised by the applicant in the second set of proceedings. On that basis, the Kúria came to the conclusion that the Supreme Court could not bear responsibility for the alleged infringement of European Union law. 55. As regards the procedural rules in question, i.e. the ne ultra petita principle according to which the courts are bound by the limits of the claims brought before them, the Kúria was of the view that their consequence was that the applicant ’ s failure to rely on European Union law in the first set of proceedings fell to be assessed by the national courts exclusively. Thus, the Kúria considered this issue to belong exclusively to the realm of domestic law and not to raise any question of interpretation that would fall under the jurisdiction of the CJEU. 56. The Court reiterates that it is not competent to assess the merits of the Kúria ’ s interpretative stance in the light of European Union law in the first set of proceedings, in particular whether or not it was in line with the CJEU ’ s case-law (see paragraph 32 above). At any rate, the applicant company ’ s complaint is not directed against the findings of the Kúria in this set of proceedings but against its refusal to request a preliminary ruling in the second set of proceedings, allegedly preventing the applicant from the right to access the CJEU. 57. In the second set of proceedings which aimed at finding the State liable for having wrongly applied EU law and at the applicant company being awarded damages in this respect, the Court notes that the Kúria gave reasons for which it considered it unnecessary to seek a preliminary ruling as requested by the applicant company, thus applying one of the criteria set out in the Cilfit judgment of the CJEU (see paragraph 18 above). The Court ’ s competence is confined to assessing whether or not these reasons are arbitrary or manifestly unreasonable. 58. In this connection, the Court notes that, for liability to be established under the “ Köbler ” criteria, it is not sufficient for a court to have infringed European Union law, such infringement moreover has to be manifest (see paragraph 31 above). In that sense, the second and fourth questions – which, in substance, concerned the adequate interpretation of the relevant European Union law provisions – were considered not relevant as, according to the Kúria, they fell outside the scope of the action in damages. As to the third question – which in substance was about whether the sole fact that a party to an action in tort against a State for infringement of European Union law by its courts does not explicitly allege such infringement in the judicial proceedings, upon which the subsequent action in liability is based, excludes the State ’ s liability – the Kúria implicitly provided a positive answer by concretely addressing the consequences of the applicant company ’ s failure to raise the question of the correct application of European Union law in the first set of proceedings. It held that, by failing to put forward its arguments concerning the adequate interpretation of European Union law, the applicant company had prevented the Supreme Court from taking into account its arguments. Thus the Kúria assessed the alleged wrongful behaviour of the domestic court in light of the applicant ’ s own behaviour. It found that, because of the applicant ’ s own omissions in the first set of proceedings, there was no liability resting upon the competent court for – allegedly – wrongly applying European Union law. The Kúria could have explained more explicitly why it refused to make a preliminary reference. However, an implicit reasoning can be considered sufficient (see Wind Telecommunicazioni S.P.A v. Italy ( dec. ), no. 5159/14, 8 September 2015). 59. The Court reiterates that it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention (see García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999 ‑ I). It is therefore not called on to assess compliance with EU law of the Kúria ’ s approach, according to which there is no liability under EU law of a domestic court which allegedly misapplied EU law when, as in the present case, the applicant company claiming compensation under this head did not itself rely on EU law in the main proceedings and/or make a request for a reference for a preliminary ruling by the CJEU, thus preventing the domestic courts in the compensation proceedings from examining any claims based on an infringement of EU law. Nor can the Court assess whether or not under these circumstances it is open for the party concerned to ask, in the proceedings relating to the claim for compensation, for a reference for a preliminary ruling to be made to the CJEU. The Court notes that, according to the Kúria, what was lying at the heart of the case was, by and large, the applicant company ’ s attempt to make good, by its action in damages brought against the Supreme Court, its omission in the first set of proceedings, that is to say, explicitly to refer to the applicable European Union law and to request a preliminary ruling on the EU law provision at stake. 60. The Court therefore does not consider arbitrary or manifestly unreasonable the reasons given by the Kúria for not making a reference to the CJEU. ( ii ) As regards the Constitutional Court ’ s decision 61. In so far as the Constitutional Court ’ s reasoning is concerned, this court provided reasoning in reply to the request of the applicant company which complained of the Kúria ’ s refusal to approach the CJEU, consisting in holding that it lacked jurisdiction in this respect. Such position cannot be considered arbitrary or manifestly unreasonable either. It is not for the Court to challenge the Constitutional Court ’ s finding that requests for a preliminary reference to the CJEU should be made before the ordinary courts and that it lacked jurisdiction to review such decisions. The Court would stress in this context that Article 6 § 1 does not require a supreme court to give more detailed reasoning when it simply applies a specific legal provision to dismiss an appeal on points of law as having no prospects of success, without further explanation (see Burg and Others v. France ( dec. ), no. 34763/02, 28 January 2003, and Gorou v. Greece (no. 2) [GC], no. 12686/03, § 41, 20 March 2009). (c) Conclusion 62. In these circumstances, the refusal by the domestic courts to make a reference for a preliminary ruling by the CJEU cannot be considered arbitrary or manifestly unreasonable. Accordingly, there has been no violation of Article 6 § 1 of the Convention. | The Court held that there had been no violation of Article 6 § 1 (right to a fair trial) of the Convention, finding that the Hungarian courts’ decisions had been neither arbitrary nor manifestly unreasonable. In particular, the Kúria had noted that the applicant company had not raised any issues of EU law in its first set of proceedings, and could not subsequently rely on such issues in a separate case for damages against the Supreme Court. |
760 | Right to life and right to respect for private life | II. RELEVANT DOMESTIC LAW AND PRACTICE A. Suicide, assisted suicide and consensual killing 16. Suicide ceased to be a crime in England and Wales by virtue of the Suicide Act 1961. However, section 2(1) of the Act provides: “A person who aids, abets, counsels or procures the suicide of another, or an attempt by another to commit suicide, shall be liable on conviction on indictment to imprisonment for a term not exceeding fourteen years.” Section 2(4) provides: “No proceedings shall be instituted for an offence under this section except by or with the consent of the Director of Public Prosecutions.” 17. Case-law has established that an individual may refuse to accept life-prolonging or life-preserving treatment: “First it is established that the principle of self-determination requires that respect must be given to the wishes of the patient, so that if an adult patient of sound mind refuses, however unreasonably, to consent to treatment or care by which his life would or might be prolonged, the doctors responsible for his care must give effect to his wishes, even though they do not consider it to be in his best interests to do so ... To this extent, the principle of the sanctity of human life must yield to the principle of self-determination ...” (Lord Goff in Airedale NHS Trust v. Bland [1993] AC 789, at p. 864) 18. This principle has been most recently affirmed in Ms B. v. an NHS Hospital, Court of Appeal judgment of 22 March 2002. It has also been recognised that “dual effect” treatment can be lawfully administered, that is treatment calculated to ease a patient's pain and suffering which might also, as a side-effect, shorten their life expectancy (see, for example, Re J [1991] Fam 3). B. Domestic review of the legislative position 19. In March 1980 the Criminal Law Revision Committee issued its fourteenth report, “Offences against the Person” (Cmnd 7844), in which it reviewed, inter alia, the law relating to the various forms of homicide and the applicable penalties. In Section F, the situation known as mercy killing was discussed. The previous suggestion of a new offence applying to a person who from compassion unlawfully killed another person permanently subject, for example, to great bodily pain and suffering and for which a two-year maximum sentence was applicable, was unanimously withdrawn. It was noted that the vast majority of the persons and bodies consulted were against the proposal on principle and on pragmatic grounds. Reference was made also to the difficulties of definition and the possibility that the “suggestion would not prevent suffering but would cause suffering, since the weak and handicapped would receive less effective protection from the law than the fit and well”. 20. It did however recommend that the penalty for assisting suicide be reduced to seven years, as being sufficiently substantial to protect helpless persons open to persuasion by the unscrupulous. 21. On 31 January 1994 the report of the House of Lords Select Committee on Medical Ethics (HL Paper 21-I) was published following its inquiry into the ethical, legal and clinical implications of a person's right to withhold consent to life-prolonging treatment, the position of persons unable to give or withhold consent and whether and in what circumstances the shortening of another person's life might be justified on the grounds that it accorded with that person's wishes or best interests. The Committee had heard oral evidence from a variety of government, medical, legal and non-governmental sources and received written submissions from numerous interested parties who addressed the ethical, philosophical, religious, moral, clinical, legal and public-policy aspects. 22. It concluded, as regards voluntary euthanasia: “236. The right to refuse medical treatment is far removed from the right to request assistance in dying. We spent a long time considering the very strongly held and sincerely expressed views of those witnesses who advocated voluntary euthanasia. Many of us have had experience of relatives or friends whose dying days or weeks were less than peaceful or uplifting, or whose final stages of life were so disfigured that the loved one seemed already lost to us, or who were simply weary of life ... Our thinking must also be coloured by the wish of every individual for a peaceful and easy death, without prolonged suffering, and by a reluctance to contemplate the possibility of severe dementia or dependence. We gave much thought too to Professor Dworkin's opinion that, for those without religious belief, the individual is best able to decide what manner of death is fitting to the life that has been lived. 237. Ultimately, however, we do not believe that these arguments are sufficient reason to weaken society's prohibition of intentional killing. That prohibition is the cornerstone of law and of social relationships. It protects each one of us impartially, embodying the belief that all are equal. We do not wish that protection to be diminished and we therefore recommend that there should be no change in the law to permit euthanasia. We acknowledge that there are individual cases in which euthanasia may be seen by some to be appropriate. But individual cases cannot reasonably establish the foundation of a policy which would have such serious and widespread repercussions. Moreover, dying is not only a personal or individual affair. The death of a person affects the lives of others, often in ways and to an extent which cannot be foreseen. We believe that the issue of euthanasia is one in which the interest of the individual cannot be separated from the interest of society as a whole. 238. One reason for this conclusion is that we do not think it possible to set secure limits on voluntary euthanasia ... 239. We are also concerned that vulnerable people – the elderly, sick or distressed – would feel pressure, whether real or imagined, to request early death. We accept that, for the most part, requests resulting from such pressure or from remediable depressive illness would be identified as such by doctors and managed appropriately. Nevertheless we believe that the message which society sends to vulnerable and disadvantaged people should not, however obliquely, encourage them to seek death, but should assure them of our care and support in life ...” 23. In light of the above, the Select Committee on Medical Ethics also recommended no change to the legislation concerning assisted suicide (paragraph 262). III. RELEVANT INTERNATIONAL MATERIALS 24. Recommendation 1418 (1999) of the Parliamentary Assembly of the Council of Europe recommended, inter alia, as follows (paragraph 9): “... that the Committee of Ministers encourage the member States of the Council of Europe to respect and protect the dignity of terminally ill or dying persons in all respects: ... c. by upholding the prohibition against intentionally taking the life of terminally ill or dying persons, while: THE LAW I. ADMISSIBILITY OF THE APPLICATION 32. The applicant, who is suffering from an incurable, degenerative disease, argued that fundamental rights under the Convention had been violated in her case by the refusal of the Director of Public Prosecutions to give an undertaking not to prosecute her husband if he were to assist her to end her life and by the state of English law which rendered assisted suicide in her case a criminal offence. The Government submitted that the application should be dismissed as manifestly ill-founded on the grounds either that the applicant's complaints did not engage any of the rights relied on by her or that any interferences with those rights were justified in terms of the exceptions allowed by the Convention's provisions. 33. The Court considers that the application as a whole raises questions of law which are sufficiently serious that their determination should depend on an examination of the merits. No other ground for declaring it inadmissible has been established. The application must therefore be declared admissible. Pursuant to Article 29 § 3 of the Convention, the Court will now consider the merits of the applicant's complaints. II. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 34. The relevant parts of Article 2 of the Convention provide: “1. Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. 2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection.” A. Submissions of the parties 1. The applicant 35. The applicant submitted that permitting her to be assisted in committing suicide would not be in conflict with Article 2 of the Convention, otherwise those countries in which assisted suicide was not unlawful would be in breach of this provision. Furthermore, Article 2 protected not only the right to life but also the right to choose whether or not to go on living. It protected the right to life and not life itself, while the sentence concerning deprivation of life was directed towards protecting individuals from third parties, namely the State and public authorities, not from themselves. Article 2 therefore acknowledged that it was for the individual to choose whether or not to go on living and protected her right to die to avoid inevitable suffering and indignity as the corollary of the right to life. In so far as the Keenan case referred to by the Government indicated that an obligation could arise for prison authorities to protect a prisoner who tried to take his own life, the obligation only arose because he was a prisoner and lacked, due to his mental illness, the capacity to take a rational decision to end his life (see Keenan v. the United Kingdom, no. 27229/95, ECHR 2001-III). 2. The Government 36. The Government submitted that the applicant's reliance on Article 2 was misconceived, being unsupported by direct authority and being inconsistent with existing authority and with the language of the provision. Article 2, guaranteeing one of the most fundamental rights, imposed primarily a negative obligation. Although it had in some cases been found to impose positive obligations, this concerned steps appropriate to safeguard life. In previous cases the State's responsibility under Article 2 to protect a prisoner had not been affected by the fact that he committed suicide (see Keenan, cited above) and it had also been recognised that the State was entitled to force-feed a prisoner on hunger strike (see X v. Germany, no. 10565/83, Commission decision of 9 May 1984, unreported). The wording of Article 2 expressly provided that no one should be deprived of their life intentionally, save in strictly limited circumstances which did not apply in the present case. The right to die was not the corollary, but the antithesis of the right to life. B. The Court's assessment 37. The Court's case-law accords pre-eminence to Article 2 as one of the most fundamental provisions of the Convention (see McCann and Others v. the United Kingdom, judgment of 27 September 1995, Series A no. 324, pp. 45-46, §§ 146-47). It safeguards the right to life, without which enjoyment of any of the other rights and freedoms in the Convention is rendered nugatory. It sets out the limited circumstances when deprivation of life may be justified and the Court has applied a strict scrutiny when those exceptions have been relied on by the respondent States (ibid., p. 46, §§ 149-50). 38. The text of Article 2 expressly regulates the deliberate or intended use of lethal force by State agents. However, it has been interpreted as covering not only intentional killing but also the situations where it is permitted to “use force” which may result, as an unintended outcome, in the deprivation of life (ibid., p. 46, § 148). Furthermore, the Court has held that the first sentence of Article 2 § 1 enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction (see L.C.B. v. the United Kingdom, judgment of 9 June 1998, Reports of Judgments and Decisions 1998-III, p. 1403, § 36). This obligation extends beyond a primary duty to secure the right to life by putting in place effective criminal-law provisions to deter the commission of offences against the person backed up by law-enforcement machinery for the prevention, suppression and sanctioning of breaches of such provisions; it may also imply in certain well-defined circumstances a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual (see Osman v. the United Kingdom, judgment of 28 October 1998, Reports 1998-VIII, p. 3159, § 115, and Kılıç v. Turkey, no. 22492/93, §§ 62 and 76, ECHR 2000-III). More recently, in Keenan, Article 2 was found to apply to the situation of a mentally ill prisoner who disclosed signs of being a suicide risk (see Keenan, cited above, § 91). 39. The consistent emphasis in all the cases before the Court has been the obligation of the State to protect life. The Court is not persuaded that “the right to life” guaranteed in Article 2 can be interpreted as involving a negative aspect. While, for example in the context of Article 11 of the Convention, the freedom of association has been found to involve not only a right to join an association but a corresponding right not to be forced to join an association, the Court observes that the notion of a freedom implies some measure of choice as to its exercise (see Young, James and Webster v. the United Kingdom, judgment of 13 August 1981, Series A no. 44, pp. 21-22, § 52, and Sigurđur A. Sigurjónsson v. Iceland, judgment of 30 June 1993, Series A no. 264, pp. 15-16, § 35). Article 2 of the Convention is phrased in different terms. It is unconcerned with issues to do with the quality of living or what a person chooses to do with his or her life. To the extent that these aspects are recognised as so fundamental to the human condition that they require protection from State interference, they may be reflected in the rights guaranteed by other Articles of the Convention, or in other international human rights instruments. Article 2 cannot, without a distortion of language, be interpreted as conferring the diametrically opposite right, namely a right to die; nor can it create a right to self-determination in the sense of conferring on an individual the entitlement to choose death rather than life. 40. The Court accordingly finds that no right to die, whether at the hands of a third person or with the assistance of a public authority, can be derived from Article 2 of the Convention. It is confirmed in this view by the recent Recommendation 1418 (1999) of the Parliamentary Assembly of the Council of Europe (see paragraph 24 above). 41. The applicant has argued that a failure to acknowledge a right to die under the Convention would place those countries which do permit assisted suicide in breach of the Convention. It is not for the Court in this case to attempt to assess whether or not the state of law in any other country fails to protect the right to life. As it recognised in Keenan, the measures which may reasonably be taken to protect a prisoner from self-harm will be subject to the restraints imposed by other provisions of the Convention, such as Articles 5 and 8, as well as more general principles of personal autonomy (see Keenan, cited above, § 92 ). Similarly, the extent to which a State permits, or seeks to regulate, the possibility for the infliction of harm on individuals at liberty, by their own or another's hand, may raise conflicting considerations of personal freedom and the public interest that can only be resolved on examination of the concrete circumstances of the case (see, mutatis mutandis, Laskey, Jaggard and Brown v. the United Kingdom, judgment of 19 February 1997, Reports 1997-I). However, even if circumstances prevailing in a particular country which permitted assisted suicide were found not to infringe Article 2 of the Convention, that would not assist the applicant in this case, where the very different proposition – that the United Kingdom would be in breach of its obligations under Article 2 if it did not allow assisted suicide – has not been established. 42. The Court finds that there has been no violation of Article 2 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 43. Article 3 of the Convention provides: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Submissions of the parties 1. The applicant 44. Before the Court, the applicant focused her complaints principally on Article 3 of the Convention. She submitted that the suffering which she faced qualified as degrading treatment under Article 3 of the Convention. She suffered from a terrible, irreversible disease in its final stages and she would die in an exceedingly distressing and undignified manner as the muscles which controlled her breathing and swallowing weakened to the extent that she would develop respiratory failure and pneumonia. While the Government were not directly responsible for that treatment, it was established under the Court's case-law that under Article 3 the State owed to its citizens not only a negative obligation to refrain from inflicting such treatment but also a positive obligation to protect people from it. In this case, this obligation was to take steps to protect her from the suffering which she would otherwise have to endure. 45. The applicant argued that there was no room under Article 3 of the Convention for striking a balance between her right to be protected from degrading treatment and any competing interest of the community, as the right was an absolute one. In any event, the balance struck was disproportionate as English law imposed a blanket ban on assisting suicide regardless of the individual circumstances of the case. As a result of this blanket ban, the applicant had been denied the right to be assisted by her husband in avoiding the suffering awaiting her without any consideration having been given to the unique facts of her case, in particular that her intellect and capacity to make decisions were unimpaired by the disease, that she was neither vulnerable nor in need of protection, that her imminent death could not be avoided, that if the disease ran its course she would endure terrible suffering and indignity and that no one else was affected by her wish for her husband to assist her save for him and their family who were wholly supportive of her decision. Without such consideration of the facts of the case, the rights of the individual could not be protected. 46. The applicant also disputed that there was any scope for allowing any margin of appreciation under Article 3 of the Convention, although if there was, the Government could not be entitled to rely on such a margin in defence of a statutory scheme operated in such a way as to involve no consideration of her concrete circumstances. The applicant rejected as offensive the assertion of the Government that all those who were terminally ill or disabled and contemplating suicide were by definition vulnerable and that a blanket ban was necessary so as to protect them. Any concern as to protecting those who were vulnerable could be met by providing a scheme whereby assisted suicide was lawful provided that the individual in question could demonstrate that she had the capacity to come to such a decision and was not in need of protection. 2. The Government 47. The Government submitted that Article 3 was not engaged in this case. The primary obligation imposed by this provision was negative: the State must not inflict torture or inhuman or degrading treatment or punishment. The applicant's case was based rather on alleged positive obligations. The Court's case-law indicated that where positive obligations arose they were not absolute but must be interpreted in such a way as not to impose an impossible or disproportionate burden on the authorities. Positive obligations had hitherto been found to arise in three situations: where the State was under a duty to protect the health of a person deprived of liberty, where the State was required to take steps to ensure that persons within its jurisdiction were not subjected to torture or other prohibited treatment at the hands of private individuals and where the State proposed to take action in relation to an individual which would result in the infliction by another of inhuman or degrading treatment on him. None of these circumstances were relevant in the applicant's case, as she was not being mistreated by anyone, she was not complaining about the absence of medical treatment and no State action was being taken against her. 48. Even if Article 3 were engaged, it did not confer a legally enforceable right to die. In assessing the scope of any positive obligation, it was appropriate to have regard to the margin of appreciation properly afforded to the State in maintaining section 2 of the Suicide Act 1961. The Government submitted that the prohibition on assisted suicide struck a fair balance between the rights of the individual and the interests of the community, in particular as it properly respected the sanctity of life and pursued a legitimate objective, namely protecting the vulnerable; the matter had been carefully considered over the years by the Criminal Law Revision Committee and the House of Lords Select Committee on Medical Ethics; there were powerful arguments, and some evidence, to suggest that legalising voluntary euthanasia led inevitably to the practice of involuntary euthanasia; and the State had an interest in protecting the lives of the vulnerable, in which context they argued that anyone contemplating suicide would necessarily be psychologically and emotionally vulnerable, even if they were physically fit while those with disabilities might be in a more precarious position as being unable effectively to communicate their views. Furthermore, there was a general consensus in Council of Europe countries, where assisted suicide and consensual killing were unlawful in all countries except in the Netherlands. This consensus was also reflected in other jurisdictions outside Europe. B. The Court's assessment 49. Article 3 of the Convention, together with Article 2, must be regarded as one of the most fundamental provisions of the Convention and as enshrining core values of the democratic societies making up the Council of Europe (see Soering v. the United Kingdom, judgment of 7 July 1989, Series A no. 161, p. 34, § 88). In contrast to the other provisions in the Convention, it is cast in absolute terms, without exception or proviso, or the possibility of derogation under Article 15 of the Convention. 50. An examination of the Court's case-law indicates that Article 3 has been most commonly applied in contexts in which the risk to the individual of being subjected to any of the proscribed forms of treatment emanated from intentionally inflicted acts of State agents or public authorities (see, amongst other authorities, Ireland v. the United Kingdom, judgment of 18 January 1978, Series A no. 25). It may be described in general terms as imposing a primarily negative obligation on States to refrain from inflicting serious harm on persons within their jurisdiction. However, in light of the fundamental importance of Article 3, the Court has reserved to itself sufficient flexibility to address the application of that Article in other situations that might arise (see D. v. the United Kingdom, judgment of 2 May 1997, Reports 1997-III, p. 792, § 49). 51. In particular, the Court has held that the obligation on the High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken in conjunction with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman and degrading treatment or punishment, including such treatment administered by private individuals (see A. v. the United Kingdom, judgment of 23 September 1998, Reports 1998-VI, p. 2699, § 22). A positive obligation on the State to provide protection against inhuman or degrading treatment has been found to arise in a number of cases: see, for example, A. v. the United Kingdom (cited above) where the child applicant had been caned by his stepfather, and Z and Others v. the United Kingdom ([GC], no. 29392/95, ECHR 2001-V), where four child applicants were severely abused and neglected by their parents. Article 3 also imposes requirements on State authorities to protect the health of persons deprived of liberty (see Keenan, cited above, concerning the lack of effective medical care of a mentally ill prisoner who committed suicide, and also Kudła v. Poland [GC], no. 30210/96, § 94, ECHR 2000-XI). 52. As regards the types of “treatment” which fall within the scope of Article 3 of the Convention, the Court's case-law refers to “ill-treatment” that attains a minimum level of severity and involves actual bodily injury or intense physical or mental suffering (see Ireland v. the United Kingdom, cited above, p. 66, § 167; V. v. the United Kingdom [GC], no. 24888/94, § 71, ECHR 1999-IX). Where treatment humiliates or debases an individual, showing a lack of respect for, or diminishing, his or her human dignity, or arouses feelings of fear, anguish or inferiority capable of breaking an individual's moral and physical resistance, it may be characterised as degrading and also fall within the prohibition of Article 3 (see amongst recent authorities, Price v. the United Kingdom, no. 33394/96, §§ 24-30, ECHR 2001-VII, and Valašinas v. Lithuania, no. 44558/98, § 117, ECHR 2001-VIII). The suffering which flows from naturally occurring illness, physical or mental, may be covered by Article 3, where it is, or risks being, exacerbated by treatment, whether flowing from conditions of detention, expulsion or other measures, for which the authorities can be held responsible (see D. v. the United Kingdom and Keenan, both cited above, and Bensaid v. the United Kingdom, no. 44599/98, ECHR 2000-I). 53. In the present case, it is beyond dispute that the respondent State has not, itself, inflicted any ill-treatment on the applicant. Nor is there any complaint that the applicant is not receiving adequate care from the State medical authorities. The situation of the applicant is therefore not comparable with that in D. v. the United Kingdom, in which an AIDS sufferer was threatened with removal from the United Kingdom to the island of St Kitts where no effective medical or palliative treatment for his illness was available and he would have been exposed to the risk of dying under the most distressing circumstances. The responsibility of the State would have been engaged by its act (“treatment”) of removing him in those circumstances. There is no comparable act or “treatment” on the part of the United Kingdom in the present case. 54. The applicant has claimed rather that the refusal of the DPP to give an undertaking not to prosecute her husband if he assisted her to commit suicide and the criminal-law prohibition on assisted suicide disclose inhuman and degrading treatment for which the State is responsible as it will thereby be failing to protect her from the suffering which awaits her as her illness reaches its ultimate stages. This claim, however, places a new and extended construction on the concept of treatment, which, as found by the House of Lords, goes beyond the ordinary meaning of the word. While the Court must take a dynamic and flexible approach to the interpretation of the Convention, which is a living instrument, any interpretation must also accord with the fundamental objectives of the Convention and its coherence as a system of human rights protection. Article 3 must be construed in harmony with Article 2, which hitherto has been associated with it as reflecting basic values respected by democratic societies. As found above, Article 2 of the Convention is first and foremost a prohibition on the use of lethal force or other conduct which might lead to the death of a human being and does not confer any right on an individual to require a State to permit or facilitate his or her death. 55. The Court cannot but be sympathetic to the applicant's apprehension that without the possibility of ending her life she faces the prospect of a distressing death. It is true that she is unable to commit suicide herself due to physical incapacity and that the state of law is such that her husband faces the risk of prosecution if he renders her assistance. Nonetheless, the positive obligation on the part of the State which is relied on in the present case would not involve the removal or mitigation of harm by, for instance, preventing any ill-treatment by public bodies or private individuals or providing improved conditions or care. It would require that the State sanction actions intended to terminate life, an obligation that cannot be derived from Article 3 of the Convention. 56. The Court therefore concludes that no positive obligation arises under Article 3 of the Convention to require the respondent State either to give an undertaking not to prosecute the applicant's husband if he assisted her to commit suicide or to provide a lawful opportunity for any other form of assisted suicide. There has, accordingly, been no violation of this provision. IV. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 57. Article 8 of the Convention provides as relevant: “1. Everyone has the right to respect for his private and family life ... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Submissions of the parties 1. The applicant 58. The applicant argued that, while the right to self-determination ran like a thread through the Convention as a whole, it was Article 8 in which that right was most explicitly recognised and guaranteed. It was clear that the right to self-determination encompassed the right to make decisions about one's body and what happened to it. She submitted that this included the right to choose when and how to die and that nothing could be more intimately connected to the manner in which a person conducted her life than the manner and timing of her death. It followed that the DPP's refusal to give an undertaking and the State's blanket ban on assisted suicide interfered with her rights under Article 8 § 1. 59. The applicant argued that there must be particularly serious reasons for interfering with such an intimate part of her private life. However, the Government had failed to show that the interference was justified as no consideration had been given to her individual circumstances. She referred here to the arguments also raised in the context of Article 3 of the Convention (see paragraphs 45-46 above). 2. The Government 60. The Government argued that the rights under Article 8 were not engaged as the right to private life did not include a right to die. It covered the manner in which a person conducted her life, not the manner in which she departed from it. Otherwise, the alleged right would extinguish the very benefit on which it was based. Even if they were wrong on this, any interference with rights under Article 8 would be fully justified. The State was entitled, within its margin of appreciation, to determine the extent to which individuals could consent to the infliction of injuries on themselves and so was even more clearly entitled to determine whether a person could consent to being killed. B. The Court's assessment 1. Applicability of Article 8 § 1 of the Convention 61. As the Court has had previous occasion to remark, the concept of “private life” is a broad term not susceptible to exhaustive definition. It covers the physical and psychological integrity of a person (see X and Y v. the Netherlands, judgment of 26 March 1985, Series A no. 91, p. 11, § 22). It can sometimes embrace aspects of an individual's physical and social identity (see Mikulić v. Croatia, no. 53176/99, § 53, ECHR 2002-I). Elements such as, for example, gender identification, name and sexual orientation and sexual life fall within the personal sphere protected by Article 8 (see, for example, B. v. France, judgment of 25 March 1992, Series A no. 232-C, pp. 53-54, § 63; Burghartz v. Switzerland, judgment of 22 February 1994, Series A no. 280-B, p. 28, § 24; Dudgeon v. the United Kingdom, judgment of 22 October 1981, Series A no. 45, pp. 18-19, § 41; and Laskey, Jaggard and Brown, cited above, p. 131, § 36). Article 8 also protects a right to personal development, and the right to establish and develop relationships with other human beings and the outside world (see, for example, Burghartz, cited above, opinion of the Commission, p. 37, § 47, and Friedl v. Austria, judgment of 31 January 1995, Series A no. 305-B, opinion of the Commission, p. 20, § 45). Although no previous case has established as such any right to self-determination as being contained in Article 8 of the Convention, the Court considers that the notion of personal autonomy is an important principle underlying the interpretation of its guarantees. 62. The Government have argued that the right to private life cannot encapsulate a right to die with assistance, such being a negation of the protection that the Convention was intended to provide. The Court would observe that the ability to conduct one's life in a manner of one's own choosing may also include the opportunity to pursue activities perceived to be of a physically or morally harmful or dangerous nature for the individual concerned. The extent to which a State can use compulsory powers or the criminal law to protect people from the consequences of their chosen lifestyle has long been a topic of moral and jurisprudential discussion, the fact that the interference is often viewed as trespassing on the private and personal sphere adding to the vigour of the debate. However, even where the conduct poses a danger to health or, arguably, where it is of a life-threatening nature, the case-law of the Convention institutions has regarded the State's imposition of compulsory or criminal measures as impinging on the private life of the applicant within the meaning of Article 8 § 1 and requiring justification in terms of the second paragraph (see, for example, concerning involvement in consensual sado-masochistic activities which amounted to assault and wounding, Laskey, Jaggard and Brown, cited above, and concerning refusal of medical treatment, Acmanne and Others v. Belgium, no. 10435/83, Commission decision of 10 December 1984, Decisions and Reports (DR) 40, p. 251). 63. While it might be pointed out that death was not the intended consequence of the applicants'conduct in the above situations, the Court does not consider that this can be a decisive factor. In the sphere of medical treatment, the refusal to accept a particular treatment might, inevitably, lead to a fatal outcome, yet the imposition of medical treatment, without the consent of a mentally competent adult patient, would interfere with a person's physical integrity in a manner capable of engaging the rights protected under Article 8 § 1 of the Convention. As recognised in domestic case-law, a person may claim to exercise a choice to die by declining to consent to treatment which might have the effect of prolonging his life (see paragraphs 17-18 above). 64. In the present case, although medical treatment is not an issue, the applicant is suffering from the devastating effects of a degenerative disease which will cause her condition to deteriorate further and increase her physical and mental suffering. She wishes to mitigate that suffering by exercising a choice to end her life with the assistance of her husband. As stated by Lord Hope, the way she chooses to pass the closing moments of her life is part of the act of living, and she has a right to ask that this too must be respected (see paragraph 15 above). 65. The very essence of the Convention is respect for human dignity and human freedom. Without in any way negating the principle of sanctity of life protected under the Convention, the Court considers that it is under Article 8 that notions of the quality of life take on significance. In an era of growing medical sophistication combined with longer life expectancies, many people are concerned that they should not be forced to linger on in old age or in states of advanced physical or mental decrepitude which conflict with strongly held ideas of self and personal identity. 66. In Rodriguez v. the Attorney General of Canada ([1994] 2 Law Reports of Canada 136), which concerned a not dissimilar situation to the present, the majority opinion of the Supreme Court considered that the prohibition on the appellant in that case receiving assistance in suicide contributed to her distress and prevented her from managing her death. This deprived her of autonomy and required justification under principles of fundamental justice. Although the Canadian court was considering a provision of the Canadian Charter framed in different terms from those of Article 8 of the Convention, comparable concerns arose regarding the principle of personal autonomy in the sense of the right to make choices about one's own body. 67. The applicant in this case is prevented by law from exercising her choice to avoid what she considers will be an undignified and distressing end to her life. The Court is not prepared to exclude that this constitutes an interference with her right to respect for private life as guaranteed under Article 8 § 1 of the Convention. It considers below whether this interference conforms with the requirements of the second paragraph of Article 8. 2. Compliance with Article 8 § 2 of the Convention 68. An interference with the exercise of an Article 8 right will not be compatible with Article 8 § 2 unless it is “in accordance with the law”, has an aim or aims that is or are legitimate under that paragraph and is “necessary in a democratic society” for the aforesaid aim or aims (see Dudgeon, cited above, p. 19, § 43). 69. The only issue arising from the arguments of the parties is the necessity of any interference, it being common ground that the restriction on assisted suicide in this case was imposed by law and in pursuit of the legitimate aim of safeguarding life and thereby protecting the rights of others. 70. According to the Court's established case-law, the notion of necessity implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued; in determining whether an interference is “necessary in a democratic society”, the Court will take into account that a margin of appreciation is left to the national authorities, whose decision remains subject to review by the Court for conformity with the requirements of the Convention. The margin of appreciation to be accorded to the competent national authorities will vary in accordance with the nature of the issues and the importance of the interests at stake. 71. The Court recalls that the margin of appreciation has been found to be narrow as regards interferences in the intimate area of an individual's sexual life (see Dudgeon, cited above, p. 21, § 52, and A.D.T. v. the United Kingdom, no. 35765/97, § 37, ECHR 2000-IX). Although the applicant has argued that there must therefore be particularly compelling reasons for the interference in her case, the Court does not find that the matter under consideration in this case can be regarded as of the same nature, or as attracting the same reasoning. 72. The parties'arguments have focused on the proportionality of the interference as disclosed in the applicant's case. The applicant attacked in particular the blanket nature of the ban on assisted suicide as failing to take into account her situation as a mentally competent adult who knows her own mind, who is free from pressure and who has made a fully informed and voluntary decision, and therefore cannot be regarded as vulnerable and requiring protection. This inflexibility means, in her submission, that she will be compelled to endure the consequences of her incurable and distressing illness, at a very high personal cost. 73. The Court would note that although the Government argued that the applicant, as a person who is both contemplating suicide and severely disabled, must be regarded as vulnerable, this assertion is not supported by the evidence before the domestic courts or by the judgments of the House of Lords which, while emphasising that the law in the United Kingdom was there to protect the vulnerable, did not find that the applicant was in that category. 74. Nonetheless, the Court finds, in agreement with the House of Lords and the majority of the Canadian Supreme Court in Rodriguez, that States are entitled to regulate through the operation of the general criminal law activities which are detrimental to the life and safety of other individuals (see also Laskey, Jaggard and Brown, cited above, pp. 132-33, § 43). The more serious the harm involved the more heavily will weigh in the balance considerations of public health and safety against the countervailing principle of personal autonomy. The law in issue in this case, section 2 of the 1961 Act, was designed to safeguard life by protecting the weak and vulnerable and especially those who are not in a condition to take informed decisions against acts intended to end life or to assist in ending life. Doubtless the condition of terminally ill individuals will vary. But many will be vulnerable and it is the vulnerability of the class which provides the rationale for the law in question. It is primarily for States to assess the risk and the likely incidence of abuse if the general prohibition on assisted suicides were relaxed or if exceptions were to be created. Clear risks of abuse do exist, notwithstanding arguments as to the possibility of safeguards and protective procedures. 75. The applicant's counsel attempted to persuade the Court that a finding of a violation in this case would not create a general precedent or any risk to others. It is true that it is not this Court's role under Article 34 of the Convention to issue opinions in the abstract but to apply the Convention to the concrete facts of the individual case. However, judgments issued in individual cases establish precedents albeit to a greater or lesser extent and a decision in this case could not, either in theory or practice, be framed in such a way as to prevent application in later cases. 76. The Court does not consider therefore that the blanket nature of the ban on assisted suicide is disproportionate. The Government have stated that flexibility is provided for in individual cases by the fact that consent is needed from the DPP to bring a prosecution and by the fact that a maximum sentence is provided, allowing lesser penalties to be imposed as appropriate. The Select Committee report indicated that between 1981 and 1992 in twenty-two cases in which “mercy killing” was an issue, there was only one conviction for murder, with a sentence of life imprisonment, while lesser offences were substituted in the others and most resulted in probation or suspended sentences (paragraph 128 of the report cited at paragraph 21 above). It does not appear to be arbitrary to the Court for the law to reflect the importance of the right to life, by prohibiting assisted suicide while providing for a system of enforcement and adjudication which allows due regard to be given in each particular case to the public interest in bringing a prosecution, as well as to the fair and proper requirements of retribution and deterrence. 77. Nor in the circumstances is there anything disproportionate in the refusal of the DPP to give an advance undertaking that no prosecution would be brought against the applicant's husband. Strong arguments based on the rule of law could be raised against any claim by the executive to exempt individuals or classes of individuals from the operation of the law. In any event, the seriousness of the act for which immunity was claimed was such that the decision of the DPP to refuse the undertaking sought in the present case cannot be said to be arbitrary or unreasonable. 78. The Court concludes that the interference in this case may be justified as “necessary in a democratic society” for the protection of the rights of others and, accordingly, that there has been no violation of Article 8 of the Convention. V. ALLEGED VIOLATION OF ARTICLE 9 OF THE CONVENTION 79. Article 9 of the Convention provides: “1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. 2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.” A. Submissions of the parties 1. The applicant 80. The applicant submitted that Article 9 protected the right to freedom of thought, which has hitherto included beliefs such as veganism and pacifism. In seeking the assistance of her husband to commit suicide, the applicant believed in and supported the notion of assisted suicide for herself. In refusing to give the undertaking not to prosecute her husband, the DPP had interfered with this right as had the United Kingdom in imposing a blanket ban which allowed no consideration of the applicant's individual circumstances. For the same reasons as applied under Article 8 of the Convention, that interference had not been justified under Article 9 § 2. 2. The Government 81. The Government disputed that any issue arose within the scope of this provision. Article 9 protected freedom of thought, conscience and religion and the manifestation of those beliefs and did not confer any general right on individuals to engage in any activities of their choosing in pursuance of whatever beliefs they may hold. Alternatively, even if there was any restriction in terms of Article 9 § 1 of the Convention, such was justifiable under the second paragraph for the same reasons as set out in relation to Articles 3 and 8 of the Convention. B. The Court's assessment 82. The Court does not doubt the firmness of the applicant's views concerning assisted suicide but would observe that not all opinions or convictions constitute beliefs in the sense protected by Article 9 § 1 of the Convention. Her claims do not involve a form of manifestation of a religion or belief, through worship, teaching, practice or observance as described in the second sentence of the first paragraph. As found by the Commission, the term “practice” as employed in Article 9 § 1 does not cover each act which is motivated or influenced by a religion or belief (see Arrowsmith v. the United Kingdom, no. 7050/77, Commission's report of 12 October 1978, DR 19, p. 19, § 71). To the extent that the applicant's views reflect her commitment to the principle of personal autonomy, her claim is a restatement of the complaint raised under Article 8 of the Convention. 83. The Court concludes that there has been no violation of Article 9 of the Convention. VI. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION 84. Article 14 of the Convention provides: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” A. Submissions of the parties 1. The applicant 85. The applicant submitted that she suffered from discrimination as a result of being treated in the same way as those whose situations were significantly different. Although the blanket ban on assisted suicide applied equally to all individuals, the effect of its application to her when she was so disabled that she could not end her life without assistance was discriminatory. She was prevented from exercising a right enjoyed by others who could end their lives without assistance because they were not prevented by any disability from doing so. She was therefore treated substantively differently and less favourably than those others. As the only justification offered by the Government for the blanket ban was the need to protect the vulnerable and as the applicant was not vulnerable or in need of protection, there was no reasonable or objective justification for this difference in treatment. 2. The Government 86. The Government argued that Article 14 of the Convention did not come into play as the applicant's complaints did not engage any of the substantive rights she relied on. Alternatively, there was no discrimination as the applicant could not be regarded as being in a relevantly similar situation to those who were able to take their own lives without assistance. Even assuming Article 14 was in issue, section 2(1) of the Suicide Act 1961 was not discriminatory as domestic law conferred no right to commit suicide and the policy of the law was firmly against suicide. The policy of the criminal law was to give weight to personal circumstances either at the stage of considering whether or not to prosecute or in the event of conviction, when penalty was to be considered. Furthermore, there was clear reasonable and objective justification for any alleged difference in treatment, reference being made to the arguments advanced under Articles 3 and 8 of the Convention. B. The Court's assessment 87. The Court has found above that the applicant's rights under Article 8 of the Convention were engaged (see paragraphs 61-67). It must therefore consider the applicant's complaints that she has been discriminated against in the enjoyment of the rights guaranteed under that provision in that domestic law permits able-bodied persons to commit suicide yet prevents an incapacitated person from receiving assistance in committing suicide. 88. For the purposes of Article 14 a difference in treatment between persons in analogous or relevantly similar positions is discriminatory if it has no objective and reasonable justification, that is if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. Moreover, the Contracting States enjoy a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment (see Camp and Bourimi v. the Netherlands, no. 28369/95, § 37, ECHR 2000-X). Discrimination may also arise where States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different (see Thlimmenos v. Greece [GC], no. 34369/97, § 44, ECHR 2000-IV). 89. Even if the principle derived from Thlimmenos was applied to the applicant's situation however, there is, in the Court's view, objective and reasonable justification for not distinguishing in law between those who are and those who are not physically capable of committing suicide. Under Article 8 of the Convention, the Court has found that there are sound reasons for not introducing into the law exceptions to cater for those who are deemed not to be vulnerable (see paragraph 74 above). Similar cogent reasons exist under Article 14 for not seeking to distinguish between those who are able and those who are unable to commit suicide unaided. The borderline between the two categories will often be a very fine one and to seek to build into the law an exemption for those judged to be incapable of committing suicide would seriously undermine the protection of life which the 1961 Act was intended to safeguard and greatly increase the risk of abuse. 90. Consequently, there has been no violation of Article 14 of the Convention in the present case. | The Court held that there had been no violation of Article 2 (right to life) of the Convention, finding that the right to life could not, without a distortion of language, be interpreted as conferring the diametrically opposite right, namely a right to die. The Court also held that there had been no violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention. Even if it could not but be sympathetic to the applicant’s apprehension that without the possibility of ending her life she faced the prospect of a distressing death, nonetheless, the positive obligation on the part of the State which had been invoked would require that the State sanction actions intended to terminate life, an obligation that could not be derived from Article 3. The Court lastly held that there had been no violation of Articles 8 (right to respect for private life), 9 (freedom of conscience) and 14 (prohibition of discrimination) of the Convention. |
884 | Public or political figures | II. RELEVANT DOMESTIC AND EUROPEAN LAW A. The Basic Law 69. The relevant provisions of the Basic Law provide as follows. Article 1 § 1 “The dignity of human beings is inviolable. All public authorities have a duty to respect and protect it.” Article 2 § 1 “Everyone shall have the right to the free development of their personality provided that they do not interfere with the rights of others or violate the constitutional order or moral law [ Sittengesetz ].” Article 5 §§ 1 and 2 “1. Everyone shall have the right freely to express and disseminate his or her opinions in speech, writing and pictures and freely to obtain information from generally accessible sources. Freedom of the press and freedom of reporting via the radio, television and cinema shall be guaranteed. There shall be no censorship. 2. These rights shall be subject to the limitations laid down by the provisions of the general laws and to statutory provisions for the protection of young people and to the obligation to respect personal honour [ Recht der persönlichen Ehre ].” B. The Copyright (Arts Domain) Act 70. Section 22(1) of the Copyright (Arts Domain) Act ( Gesetz betreffend das Urheberrecht an Werken der bildenden Künste und der Photographie ) provides that images can only be disseminated with the express consent of the person concerned. Section 23(1)(1) of the Act provides for exceptions to that rule, where the images portray an aspect of contemporary society ( Bildnisse aus dem Bereich der Zeitgeschichte ) on condition that publication does not interfere with a legitimate interest ( berechtigtes Interesse ) of the person concerned (section 23(2)). C. Resolution 1165 (1998) of the Parliamentary Assembly of the Council of Europe on the right to privacy 71. The relevant passages of this Resolution, adopted by the Parliamentary Assembly of the Council of Europe on 26 June 1998, read as follows. “1. The Assembly recalls the current affairs debate it held on the right to privacy during its September 1997 session, a few weeks after the accident which cost the Princess of Wales her life. 2. On that occasion, some people called for the protection of privacy, and in particular that of public figures, to be reinforced at the European level by means of a convention, while others believed that privacy was sufficiently protected by national legislation and the European Convention on Human Rights, and that freedom of expression should not be jeopardised. 3. In order to explore the matter further, the Committee on Legal Affairs and Human Rights organised a hearing in Paris on 16 December 1997 with the participation of public figures or their representatives and the media. 4. The right to privacy, guaranteed by Article 8 of the European Convention on Human Rights, has already been defined by the Assembly in the declaration on mass communication media and human rights, contained within Resolution 428 (1970), as ‘the right to live one’s own life with a minimum of interference’. 5. In view of the new communication technologies which make it possible to store and use personal data, the right to control one’s own data should be added to this definition. 6. The Assembly is aware that personal privacy is often invaded, even in countries with specific legislation to protect it, as people’s private lives have become a highly lucrative commodity for certain sectors of the media. The victims are essentially public figures, since details of their private lives serve as a stimulus to sales. At the same time, public figures must recognise that the position they occupy in society – in many cases by choice – automatically entails increased pressure on their privacy. 7. Public figures are persons holding public office and/or using public resources and, more broadly speaking, all those who play a role in public life, whether in politics, the economy, the arts, the social sphere, sport or in any other domain. 8. It is often in the name of a one-sided interpretation of the right to freedom of expression, which is guaranteed in Article 10 of the European Convention on Human Rights, that the media invade people’s privacy, claiming that their readers are entitled to know everything about public figures. 9. Certain facts relating to the private lives of public figures, particularly politicians, may indeed be of interest to citizens, and it may therefore be legitimate for readers, who are also voters, to be informed of those facts. 10. It is therefore necessary to find a way of balancing the exercise of two fundamental rights, both of which are guaranteed in the European Convention on Human Rights: the right to respect for one’s private life and the right to freedom of expression. 11. The Assembly reaffirms the importance of every person’s right to privacy, and of the right to freedom of expression, as fundamental to a democratic society. These rights are neither absolute nor in any hierarchical order, since they are of equal value. 12. However, the Assembly points out that the right to privacy afforded by Article 8 of the European Convention on Human Rights should not only protect an individual against interference by public authorities, but also against interference by private persons or institutions, including the mass media. 13. The Assembly believes that, since all member States have now ratified the European Convention on Human Rights, and since many systems of national legislation comprise provisions guaranteeing this protection, there is no need to propose that a new convention guaranteeing the right to privacy should be adopted. ...” D. Resolution of the Committee of Ministers on the execution of the Von Hannover judgment (no. 59320/00) of 24 June 2004 72. The Resolution of the Committee of Ministers (CM/ResDH(2007)124), including the Appendix (extracts), adopted on 31 October 2007 at the 1007th meeting of the Ministers’ Deputies, is worded as follows: “The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter ‘the Convention’ and ‘the Court’); Having regard to the judgments transmitted by the Court to the Committee once they had become final; Recalling that the violation of the Convention found by the Court in this case concerns a breach of the right to respect for private life of the applicant, Princess Caroline von Hannover, the eldest daughter of Prince Rainier III of Monaco, on account of [the] German courts’ refusal of her requests to prohibit publication of a series of photographs of her (see details in Appendix); Having invited the government of the respondent State to inform the Committee of the measures taken to comply with Germany’s obligation under Article 46, paragraph 1, of the Convention to abide by the judgment; Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention; Having satisfied itself that, within the time-limit set, the respondent State paid the applicant the just satisfaction provided in the judgment (see details in Appendix); Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgment, the adoption by the respondent State, where appropriate, of – individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and – general measures, preventing similar violations; DECLARES, having examined the measures taken by the respondent State (see Appendix), that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and DECIDES to close the examination of this case. Appendix to Resolution CM/ResDH(2007)124 Information about the measures to comply with the judgment in the case of ... THE LAW I. DISJOINDER OF THE APPLICATIONS 73. The Court notes that before relinquishing jurisdiction in favour of the Grand Chamber the Chamber had joined the present applications to another application, Axel Springer AG v. Germany (no. 39954/08 – see paragraph 3 above). Having regard, however, to the nature of the facts and the substantive issues raised in these cases, the Grand Chamber considers it appropriate to disjoin application no. 39954/08 from the present applications. II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 74. The applicants complained of the refusal by the German courts to grant an injunction against any further publication of the photo that had appeared on 20 February 2002 in the magazines Frau im Spiegel, issue no. 9/02, and Frau aktuell, issue no. 9/02. They alleged that there had been a violation of their right to respect for their private life, as guaranteed by Article 8 of the Convention, the relevant parts of which read as follows: “1. Everyone has the right to respect for his private and family life ... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of ... the protection of the rights and freedoms of others.” A. Admissibility 75. The Court observes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It notes further that no other ground for declaring it inadmissible has been established and that it must therefore be declared admissible. B. Merits 1. The parties’ submissions (a) The Government 76. The Government pointed out at the outset that there was no conflict between the Federal Constitutional Court and the Court. They observed that in its judgment of 14 October 2004 ( Görgülü judgment – no. 2 BvR 1481/04, Reports of Judgments and Decisions of the Federal Constitutional Court no. 111, p. 307), the Federal Constitutional Court had stated that there were grounds for lodging a constitutional appeal before it where the domestic court had failed to take sufficient account of the Convention or of the Court’s case-law. They pointed out that in the present cases the Federal Court of Justice and the Federal Constitutional Court had taken the Court’s case-law into consideration, particularly the Von Hannover judgment. It could not therefore be alleged that there was an attitude of denial on the part of the German courts; on the contrary, they had granted far greater protection to personality rights than had been the case in the past. 77. The Government pointed out that the present applications related in essence to only one photo. In their submission, whilst it was true that the photos published on 20 February 2002, although not identical, were apparently part of the same series, the fact remained that from the point of view of an unbiased observer it was the same photographic representation of the applicants, albeit in a different size and format. The Government observed that in respect of the other photos examined in the judgment of the Federal Constitutional Court of 26 February 2008 either the Federal Court of Justice had upheld the injunction on their publication or they were the subject of a separate application before the Court. Other photos, mentioned by the applicants in their observations, could not be taken into consideration by the Court as the relevant domestic proceedings had not yet been concluded. 78. The Government submitted that up until the Von Hannover judgment the German courts had used the hard and fast concept of “figure of contemporary society par excellence ”, which attracted only limited protection under German law. Following the Von Hannover judgment, the Federal Court of Justice had abandoned that concept and developed a new concept of (graduated) protection according to which it was henceforth necessary to show in respect of every photo why there was an interest in publishing it. Furthermore, under the new approach adopted by the Federal Court of Justice the balancing of competing interests consisted in determining whether the publication contributed to a public debate. The information value of the publication was of particular importance in that respect. In sum, the new case-law of the Federal Court of Justice, endorsed by the Federal Constitutional Court, afforded greater weight to the protection of personality rights, as evidenced by the fact that an injunction was imposed on publication of two of the initial three photos. Besides that, the photo in question and the articles accompanying it could be clearly differentiated from the photos and their commentaries that had been the subject of the Von Hannover judgment. 79. The Government contested the applicants’ allegation that, according to the clear findings of the Court, the first applicant was a private individual. The Court had in several judgments referred to her as a public figure in order to differentiate her from a private individual (see Gurgenidze v. Georgia, no. 71678/01, § 40, 17 October 2006; Sciacca v. Italy, no. 50774/99, § 27, ECHR 2005-I; and Reklos and Davourlis v. Greece, no. 1234/05, § 38, 15 January 2009). In categorising the applicants as public figures the German courts had merely followed the Court’s case-law. As a member of a reigning dynasty, the first applicant appeared in public at official functions in the Principality. Moreover, she was the Chair of the Princess Grace Foundation, whose activities had been published by the Monegasque authorities in the official yearbook of the Principality. 80. The Government pointed out that the applicants had not complained before the national courts about the circumstances in which the photos had been taken, although those were factors which, as a general rule, the courts duly took into account. In their submission, whilst the photos in question had certainly been taken without the knowledge or consent of the relevant parties, this did not mean that they had been taken surreptitiously or in conditions unfavourable to the applicants. 81. The Government argued that the special nature of certain cases, such as the present ones, in which the domestic courts were required to balance the rights and interests of two or more private individuals lay in the fact that the proceedings before the Court were in fact a continuation of the original legal action, with each party to the domestic proceedings potentially able to apply to the Court. It was precisely for that reason that one result alone of the balancing exercise of the competing interests was insufficient, and that there should be a “corridor” of solutions within the confines of which the national courts should be allowed to give decisions in conformity with the Convention. Failing that, the Court would have to take the decision on every case itself, which could hardly be its role. Consequently, it should limit the scope of its scrutiny and intervene only where the domestic courts had not taken account of certain specific circumstances when undertaking the balancing exercise or where the result of that exercise was patently disproportionate (see, for example, Cumpănă and Mazăre v. Romania [GC], no. 33348/96, §§ 111-20, ECHR 2004 ‑ XI). The Government argued that where the relationship between State and citizen was concerned, a gain of freedom for the individual concerned involved only a loss of competence for the State, whereas in the relationship between two citizens the fact of attaching more weight to the right of one of the persons concerned restricted the right of the others, which was forbidden under Article 53 of the Convention. The scope of the Court’s scrutiny was accordingly reduced in such cases. 82. The Government highlighted the margin of appreciation enjoyed by the State in the present case. That margin depended on the nature of the activities in question and the aim pursued by the restrictions. In its recent case-law, the Court had moreover left the State a broad margin of appreciation in cases concerning Article 8 of the Convention (see A. v. Norway, no. 28070/06, § 66, 9 April 2009, and Armonienė v. Lithuania, no. 36919/02, § 38, 25 November 2008). Generally speaking, the margin enjoyed by the States was broader where there was no European consensus. In the Government’s submission, whilst there was admittedly a trend towards harmonisation of the legal systems in Europe, differences nevertheless remained, as evidenced by the failure of the negotiations for the adoption of a regulation of the European Union on conflict-of-law rules regarding non-contractual obligations (Regulation EC No. 864/2007 of 11 July 2007 – Rome II Regulation). The margin of appreciation was also broad where the national authorities had to strike a balance between competing private and public interests or Convention rights (see Dickson v. the United Kingdom [GC], no. 44362/04, § 78, ECHR 2007 ‑ V, and Evans v. the United Kingdom [GC], no. 6339/05, § 77, ECHR 2007 ‑ I). Moreover, the case-law of the Court of Justice of the European Union apparently took the same approach (cases of Schmidberger of 12 June 2003, C-112/00, and Omega of 14 October 2004, C-36/02). (b) The applicants 83. The applicants wished to stress the context of the present applications. Since the first applicant had lost her first husband in a tragic accident in 1985, the media had realised that the story of the widow and her three young children would sell well and provided a lucrative market. Although it was illegal under the French Civil Code to take or publish such photos in France, the applicants had nonetheless been pursued by paparazzi who could sell the photos in other markets, particularly in Germany. Whereas the public had never heard of the second applicant before, he had also been pursued by paparazzi since his marriage to the first applicant and the birth of their child. In accordance with decisions of the German civil courts, upheld by the Federal Constitutional Court in 1999, the applicants had been able to oppose publication of such photos only where they were in a secluded location, out of public view. The applicants had constantly been aware of being observed, pursued and hounded and had therefore had high hopes after the adoption of the Von Hannover judgment, in which the Court had called into question the case-law of the domestic courts. They had accordingly brought six test cases regarding photos comparable to those that had been the subject of the Von Hannover judgment. It would appear that the German authorities had not been ready to follow that judgment, however. This was evidenced both by the statements of the Federal Minister of Justice and the German Chancellor at the time, according to which the Court’s judgment was not binding on the German courts because the case ‑ law of the Federal Constitutional Court was of higher ranking than the Convention, and by the opinions expressed by the respective reporting judges in the Caroline von Hannover cases before the Federal Constitutional Court in an interview and in a legal article published in 2004 and 2009 respectively. 84. Germany had categorically refused until now to execute the Von Hannover judgment, in breach of Article 46 of the Convention. Accordingly, in its Görgülü judgment the Federal Constitutional Court had observed that a blanket execution of the Court’s judgments should be avoided. The Court of Appeal had clearly stated in the present case that the judgment of the Federal Constitutional Court of 1999 took precedence. The Federal Court of Justice and the Federal Constitutional Court, for their part, had circumvented the Von Hannover judgment and continued to rely on the concept of figure of contemporary society ( par excellence ) that had been called into question by the Court, by using the terms “prominent persons” or “high-profile persons”, and referring – de facto – to the spatial-isolation factor by using the expression “moment of relaxation or letting go, freed from the constraints of professional or everyday life”. The applicants continued to be the subject of press articles on their daily and private life and to be hounded by paparazzi, with the German courts doing nothing to put a stop to this. As it was impossible for them to know whether they were protected from harassment by paparazzi, they complained of an intolerable situation of legal insecurity and a considerable risk of litigation and costs resulting from that. 85. The applicants argued that none of the photos, whether considered alone or in the context of the written article, contributed to a debate of public interest in a democratic society. They served purely to satisfy the curiosity of a particular readership. How and where the applicants spent their holidays clearly did not concern any matter that materially affected the public. A walk by the applicants during their holiday was not an event of contemporary society, especially as it was not undertaken in the exercise of any official function. 86. The reference to Prince Rainier’s long-term illness in the article accompanying the photos in question could not alter that finding. The article was not about whether the prince’s illness prevented him from carrying out his sovereign tasks. There were only a few sentences informing the reader about his illness; the article was mainly about the private life of the applicants and other members of the prince’s family. The prince’s illness had been merely a pretext for extensive coverage of the applicants’ private life. It was already doubtful whether publication of the photo of Prince Rainier with his daughter Stéphanie could be justified, so publication of the photo complained of in this case was clearly unjustified. Even if there was information value in the prince’s illness, there was no genuine link between the applicants’ skiing holiday and that illness. A simple article would, moreover, have sufficed to satisfy the public’s interest. 87. The applicants submitted that there had been nothing unusual or reprehensible in their spending a few days on a skiing holiday with their daughter during the prince’s illness, just like other families. That information was totally irrelevant to how the Principality of Monaco was governed. It was precisely when a family member was suffering from a long-term illness that the relatives needed special protection during the few days that they could relax. If a relative’s poor health were sufficient grounds upon which to publish photos, the Article 8 guarantees would be undermined and the press could permanently report on the applicants’ private life. Where the photos showed the applicants visiting the prince, the event of contemporary society would be the visit, and where they were elsewhere the event would be their absence. The German media had fully grasped this: they could enrich their articles with a few sentences to artificially generate information value. 88. The applicants complained of the absence of two important factors in the balancing exercise undertaken by the German courts. They argued that the courts had failed to have regard to the fact that they had never sought to publicise details of their private life in the media, but had always defended themselves against any illegal publication. They thus had a legitimate expectation that their private life would be protected. Moreover, unlike the Court, the German courts had not taken account of the fact that the applicants were being permanently observed and hounded by paparazzi and that the photos had been taken without their knowledge or consent. Furthermore, the first applicant had not at any time been called to the throne of the Principality of Monaco: her father had still been alive when the photos were taken. On the latter’s death, it was her brother Albert who had succeeded him to the throne. 89. The applicants submitted that since the Von Hannover judgment, in which the Court had clearly established the criteria that had to be met in cases of illegal publication of photos, the German authorities could no longer rely on a margin of appreciation. In their submission, a European consensus had emerged following the influence of that judgment as illustrated by the adoption of a Resolution by the Parliamentary Assembly in 1998. The differences that remained were merely in the nuances. The Von Hannover judgment was part of a line of established case-law and had subsequently been confirmed many times. The applicants expressed surprise, moreover, that the Court, as a supreme European court, should have less extensive powers of scrutiny than those exercised by the Federal Constitutional Court, which, in the proceedings in respect of the photo published in the magazine 7 Tage (paragraph 40 above), had overridden the opinion of the eleven professional judges who had examined the case and substituted its own opinion down to the last detail. 2. Third parties’ observations (a) Association of German magazine editors 90. The third-party association observed that the Von Hannover judgment delivered by the Court had had considerable effects on the freedom of the press in Germany. Following that judgment, the German courts had attached much less weight to the freedom of the press than before. Their decisions had now fallen into line with the Court’s case-law, to which they often referred moreover. The association submitted that the press, in its role of “public watchdog”, had the task not only of watching over parliaments, governance and other political events, but also of observing public life in general whether in politics, the economy, the arts, the social sphere, sport or any other domain. Like members of other royal families, the first applicant had a function as a role model and was unquestionably a public figure. The third-party association pointed out that, since 2003, the first applicant had been a UNESCO Goodwill Ambassador, a title bestowed on famous persons such as Nelson Mandela, Claudia Cardinale or Pierre Cardin. The Court had, moreover, described the first applicant as a public figure in judgments delivered after the Von Hannover judgment. In the association’s view, the protection of privacy had already been quite extensive before the Von Hannover judgment and that protection had subsequently been further extended. The German courts had not therefore exceeded their margin of appreciation. The standard as it existed in France could not constitute a model for Europe. (b) Ehrlich & Sohn GmbH & Co KG publishing company 91. The third-party publishing company reiterated the importance of the freedom of the press in Germany, particularly having regard to the country’s former National Socialist era. It observed that, in accordance with the settled case-law of the Federal Constitutional Court, the entertainment press also enjoyed the protection of press freedom. Moreover, as the daughter of the late sovereign prince of a European country, sister of the current sovereign prince and wife of the Head of a former German noble dynasty, the first applicant was undeniably a public figure who attracted attention, at least in Europe. The publishing company submitted, lastly, that following the Von Hannover judgment delivered by the Court in 2004, the German courts had departed from precedent by restricting the possibility of publishing photographs of persons taken outside official events and without the consent of the interested parties and had thus severely curtailed the freedom of information and of the press. (c) Media Lawyers Association 92. The third-party association argued that Article 8 of the Convention did not create an image right or, moreover, a right to reputation. Publication of a person’s photo did not, of itself, necessarily constitute an interference with the rights guaranteed under that provision. In determining whether there had been an interference, regard had to be had to all the circumstances and a certain level of seriousness was required. It was vital that media reporting upon all matters of public interest was strongly protected. In the Association’s submission, whilst the Court had rightly held, in its Von Hannover judgment, that regard had to be had to the context in which a photo had been taken, it had gone too far in asserting – in error – that publication of any photo fell within the scope of Article 8. The Court had unfortunately confirmed that position in subsequent judgments. The association maintained that the correct approach was first to examine whether the photo that had been published did or did not fall within the private sphere. In that context consideration had to be given to whether the person concerned, having regard to all the circumstances, had a legitimate expectation of privacy. If not, that was the end of the matter as Article 8 of the Convention did not apply. If yes, the domestic courts had to balance competing rights – of equal status – under Articles 8 and 10 of the Convention, whilst taking account of all the circumstances of the case. The balancing exercise and the outcome were matters that fell within the margin of appreciation of the States. The Court should intervene only where the national authorities had failed to undertake a balancing exercise or where their decisions were unreasonable. Lastly, the decision whether to include a photo in a written report fell within the editor’s discretion and judges could not substitute their own opinion. (d) Joint submissions by the Media Legal Defence Initiative, International Press Institute and World Association of Newspapers and News Publishers 93. The three third-party associations submitted that a broad trend could be observed across the Contracting States towards the assimilation by the national courts of the principles and standards articulated by the Court relating to the balancing of the rights under Article 8 against those under Article 10 of the Convention, even if the individual weight given to a particular factor might vary from one State to another. They invited the Court to grant a broad margin of appreciation to the Contracting States, submitting that such was the thrust of Article 53 of the Convention. They referred to the Court’s judgment in Chassagnou and Others v. France ([GC], nos. 25088/94, 28331/95 and 28443/95, § 113, ECHR 1999 ‑ III), submitting that the Court had indicated that it would allow the Contracting States a wide margin of appreciation in situations of competing interests. The Contracting States were likewise generally granted a wider margin in respect of positive obligations in relationships between private parties or other areas in which opinions within a democratic society might reasonably differ significantly (see Fretté v. France, no. 36515/97, § 41, ECHR 2002 ‑ I). The Court had, moreover, already allowed the Contracting States a broad margin of appreciation in a case concerning a balancing exercise in respect of rights under Articles 8 and 10 of the Convention (see A. v. Norway, cited above, § 66). Its role was precisely to confirm that the Contracting States had put in place a mechanism for the determination of a fair balance and whether particular factors taken into account by the national courts in striking such a balance were consistent with the Convention and its case-law. It should only intervene where the domestic courts had considered irrelevant factors to be significant or where the conclusions reached by the domestic courts were clearly arbitrary or summarily dismissive of the privacy or reputational interests at stake. Otherwise, it ran the risk of becoming a court of appeal for such cases. 3. The Court’s assessment (a) Scope of the application 94. The Court observes at the outset that it is not its task in the present case to examine whether Germany has satisfied its obligations under Article 46 of the Convention regarding execution of the Von Hannover judgment it delivered in 2004, as that task is the responsibility of the Committee of Ministers (see Verein gegen Tierfabriken Schweiz (VgT) v. Switzerland (no. 2) [GC], no. 32772/02, § 61, ECHR 2009, and Öcalan v. Turkey (dec.), no. 5980/07, 6 July 2010). The present applications concern only new proceedings instituted by the applicants following the Von Hannover judgment and relating to the publication of other photos of them (see paragraphs 15-20 above). (b) General principles (i) Concerning private life 95. The Court reiterates that the concept of private life extends to aspects relating to personal identity, such as a person’s name, photo, or physical and moral integrity; the guarantee afforded by Article 8 of the Convention is primarily intended to ensure the development, without outside interference, of the personality of each individual in his relations with other human beings. There is thus a zone of interaction of a person with others, even in a public context, which may fall within the scope of private life. Publication of a photo may thus intrude upon a person’s private life even where that person is a public figure (see Schüssel v. Austria (dec.), no. 42409/98, 21 February 2002; Von Hannover v. Germany, no. 59320/00, §§ 50 and 53, ECHR 2004-VI; Sciacca, cited above, § 29; and Petrina v. Romania, no. 78060/01, § 27, 14 October 2008). 96. Regarding photos, the Court has stated that a person’s image constitutes one of the chief attributes of his or her personality, as it reveals the person’s unique characteristics and distinguishes the person from his or her peers. The right to the protection of one’s image is thus one of the essential components of personal development. It mainly presupposes the individual’s right to control the use of that image, including the right to refuse publication thereof (see Reklos and Davourlis v. Greece, cited above, § 40). 97. The Court also reiterates that, in certain circumstances, even where a person is known to the general public, he or she may rely on a “legitimate expectation” of protection of and respect for his or her private life (see Von Hannover, cited above, § 51; Leempoel & S.A. ED. Ciné Revue v. Belgium, no. 64772/01, § 78, 9 November 2006; Standard Verlags GmbH v. Austria (no. 2), no. 21277/05, § 48, 4 June 2009; and Hachette Filipacchi Associés ( ICI PARIS ) v. France, no. 12268/03, § 53, 23 July 2009). 98. In cases of the type being examined here, what is in issue is not an act by the State but the alleged inadequacy of the protection afforded by the domestic courts to the applicants’ private life. While the essential object of Article 8 is to protect the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this negative undertaking, there may be positive obligations inherent in effective respect for private or family life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves (see X and Y v. the Netherlands, 26 March 1985, § 23, Series A no. 91, and Armonienė, cited above, § 36). That also applies to the protection of a person’s picture against abuse by others (see Schüssel, cited above; Von Hannover, cited above, § 57; and Reklos and Davourlis, cited above, § 35). 99. The boundary between the State’s positive and negative obligations under Article 8 does not lend itself to precise definition; the applicable principles are, nonetheless, similar. In both contexts regard must be had to the fair balance that has to be struck between the relevant competing interests (see White v. Sweden, no. 42435/02, § 20, 19 September 2006, and Gurgenidze, cited above, § 38). (ii) Concerning freedom of expression 100. The present applications require an examination of the fair balance that has to be struck between the applicants’ right to respect for their private life and the right of the publishing company to freedom of expression guaranteed under Article 10 of the Convention. The Court therefore considers it useful to reiterate the general principles relating to the application of that provision as well. 101. Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no “democratic society”. As set forth in Article 10, freedom of expression is subject to exceptions, which must, however, be construed strictly, and the need for any restrictions must be established convincingly (see, among other authorities, Handyside v. the United Kingdom, 7 December 1976, § 49, Series A no. 24; Editions Plon v. France, no. 58148/00, § 42, ECHR 2004 ‑ IV; and Lindon, Otchakovsky-Laurens and July v. France [GC], nos. 21279/02 and 36448/02, § 45, ECHR 2007 ‑ IV). 102. The Court has also repeatedly emphasised the essential role played by the press in a democratic society. Although the press must not overstep certain bounds, regarding in particular protection of the reputation and rights of others, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest. Not only does the press have the task of imparting such information and ideas; the public also has a right to receive them. Were it otherwise, the press would be unable to play its vital role of “public watchdog” (see Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, §§ 59 and 62, ECHR 1999 ‑ III, and Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, § 71, ECHR 2004 ‑ XI). Furthermore, is not for the Court, any more than it is for the national courts, to substitute its own views for those of the press as to what techniques of reporting should be adopted in a particular case (see Jersild v. Denmark, 23 September 1994, § 31, Series A no. 298, and Stoll v. Switzerland [GC], no. 69698/01, § 146, ECHR 2007 ‑ V). 103. The Court reiterates, lastly, that freedom of expression includes the publication of photos (see Österreichischer Rundfunk v. Austria (dec.), no. 57597/00, 25 May 2004, and Verlagsgruppe News GmbH v. Austria (no. 2), no. 10520/02, §§ 29 and 40, 14 December 2006). This is nonetheless an area in which the protection of the rights and reputation of others takes on particular importance, as the photos may contain very personal or even intimate information about an individual or his or her family (see Von Hannover, cited above, § 59; Hachette Filipacchi Associés v. France, no. 71111/01, § 42, 14 June 2007; and Eerikäinen and Others v. Finland, no. 3514/02, § 70, 10 February 2009). Moreover, photos appearing in the “sensationalist” press or in “romance” magazines, which generally aim to satisfy the public’s curiosity regarding the details of a person’s strictly private life (see Société Prisma Presse v. France (dec.), nos. 66910/01 and 71612/01, 1 July 2003, and Hachette Filipacchi Associés ( ICI PARIS ), cited above, § 40), are often taken in a climate of continual harassment which may induce in the person concerned a very strong sense of intrusion into their private life or even of persecution (see Von Hannover, cited above, § 59, and Gurgenidze, cited above, § 59). (iii) Concerning the margin of appreciation 104. The Court reiterates that the choice of the means calculated to secure compliance with Article 8 of the Convention in the sphere of the relations of individuals between themselves is in principle a matter that falls within the Contracting States’ margin of appreciation, whether the obligations on the State are positive or negative. There are different ways of ensuring respect for private life and the nature of the State’s obligation will depend on the particular aspect of private life that is at issue (see X and Y v. the Netherlands, cited above, § 24, and Odièvre v. France [GC], no. 42326/98, § 46, ECHR 2003 ‑ III). Likewise, under Article 10 of the Convention, the Contracting States have a certain margin of appreciation in assessing whether and to what extent an interference with the freedom of expression protected by this provision is necessary (see Tammer v. Estonia, no. 41205/98, § 60, ECHR 2001 ‑ I, and Pedersen and Baadsgaard, cited above, § 68). 105. However, this margin goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those delivered by an independent court (see, mutatis mutandis, Peck v. the United Kingdom, no. 44647/98, § 77, ECHR 2003 ‑ I, and Karhuvaara and Iltalehti v. Finland, no. 53678/00, § 38, ECHR 2004-X). In exercising its supervisory function, the Court’s task is not to take the place of the national courts, but rather to review, in the light of the case as a whole, whether the decisions they have taken pursuant to their power of appreciation are compatible with the provisions of the Convention relied on (see Petrenco v. Moldova, no. 20928/05, § 54, 30 March 2010; Polanco Torres and Movilla Polanco v. Spain, no. 34147/06, § 41, 21 September 2010; and Petrov v. Bulgaria (dec.), no. 27103/04, 2 November 2010). 106. In cases such as the present one, which require the right to respect for private life to be balanced against the right to freedom of expression, the Court considers that the outcome of the application should not, in theory, vary according to whether it has been lodged with the Court under Article 8 of the Convention by the person who was the subject of the article, or under Article 10 by the publisher. Indeed, as a matter of principle these rights deserve equal respect (see Hachette Filipacchi Associés ( ICI PARIS ), cited above, § 41; Timciuc v. Romania (dec.), no. 28999/03, § 144, 12 October 2010; and Mosley v. the United Kingdom, no. 48009/08, § 111, 10 May 2011; see also point 11 of the Resolution of the Parliamentary Assembly – paragraph 71 above). Accordingly, the margin of appreciation should in theory be the same in both cases. 107. Where the balancing exercise has been undertaken by the national authorities in conformity with the criteria laid down in the Court’s case-law, the Court would require strong reasons to substitute its view for that of the domestic courts (see MGN Limited v. the United Kingdom, no. 39401/04, §§ 150 and 155, 18 January 2011, and Palomo Sánchez and Others v. Spain [GC], nos. 28955/06, 28957/06, 28959/06 and 28964/06, § 57, ECHR 2011). (iv) The criteria relevant for the balancing exercise 108. Where the right to freedom of expression is being balanced against the right to respect for private life, the criteria laid down in the case-law that are relevant to the present case are set out below. (α) Contribution to a debate of general interest 109. An initial essential criterion is the contribution made by photos or articles in the press to a debate of general interest (see Von Hannover, cited above, § 60; Leempoel & S.A. ED. Ciné Revue, cited above, § 68; and Standard Verlags GmbH, cited above, § 46). The definition of what constitutes a subject of general interest will depend on the circumstances of the case. The Court nevertheless considers it useful to point out that it has recognised the existence of such an interest not only where the publication concerned political issues or crimes (see White, cited above, § 29; Egeland and Hanseid v. Norway, no. 34438/04, § 58, 16 April 2009; and Leempoel & S.A. ED. Ciné Revue, cited above, § 72), but also where it concerned sporting issues or performing artists (see Nikowitz and Verlagsgruppe News GmbH v. Austria, no. 5266/03, § 25, 22 February 2007; Colaço Mestre and SIC – Sociedade Independente de Comunicação, S.A. v. Portugal, nos. 11182/03 and 11319/03, § 28, 26 April 2007; and Sapan v. Turkey, no. 44102/04, § 34, 8 June 2010). However, the rumoured marital difficulties of the President of a country or the financial difficulties of a famous singer were not deemed to be matters of general interest (see Standard Verlags GmbH, cited above, § 52, and Hachette Filipacchi Associés ( ICI PARIS ), cited above, § 43). (β) How well known is the person concerned and what is the subject of the report? 110. The role or function of the person concerned and the nature of the activities that are the subject of the report and/or photo constitute another important criterion, related to the preceding one. In that connection a distinction has to be made between private individuals and persons acting in a public context, as political figures or public figures. Accordingly, whilst a private individual unknown to the public may claim particular protection of his or her right to private life, the same is not true of public figures (see Minelli v. Switzerland (dec.), no. 14991/02, 14 June 2005, and Petrenco, cited above, § 55). A fundamental distinction needs to be made between reporting facts capable of contributing to a debate in a democratic society, relating to politicians in the exercise of their official functions for example, and reporting details of the private life of an individual who does not exercise such functions (see Von Hannover, cited above, § 63, and Standard Verlags GmbH, cited above, § 47). While in the former case the press exercises its role of “public watchdog” in a democracy by imparting information and ideas on matters of public interest, that role appears less important in the latter case. Similarly, although in certain special circumstances the public’s right to be informed can even extend to aspects of the private life of public figures, particularly where politicians are concerned, this will not be the case – despite the person concerned being well known to the public – where the published photos and accompanying commentaries relate exclusively to details of the person’s private life and have the sole aim of satisfying public curiosity in that respect (see Von Hannover, cited above, § 65 with the references cited therein, and Standard Verlags GmbH, cited above, § 53; see also point 8 of the Resolution of the Parliamentary Assembly – paragraph 71 above). In the latter case, freedom of expression calls for a narrower interpretation (see Von Hannover, cited above, § 66; Hachette Filipacchi Associés ( ICI PARIS ), cited above, § 40; and MGN Limited, cited above, § 143). (γ) Prior conduct of the person concerned 111. The conduct of the person concerned prior to publication of the report or the fact that the photo and the related information have already appeared in an earlier publication are also factors to be taken into consideration (see Hachette Filipacchi Associés ( ICI PARIS ), cited above, §§ 52-53, and Sapan, cited above, § 34). However, the mere fact of having cooperated with the press on previous occasions cannot serve as an argument for depriving the party concerned of all protection against publication of the photo at issue (see Egeland and Hanseid, cited above, § 62). (δ) Content, form and consequences of the publication 112. The way in which the photo or report are published and the manner in which the person concerned is represented in the photo or report may also be factors to be taken into consideration (see Wirtschafts-Trend Zeitschriften-Verlagsgesellschaft m.b.H. v. Austria (no. 3), nos. 66298/01 and 15653/02, § 47, 13 December 2005; Reklos and Davourlis, cited above, § 42; and Jokitaipale and Others v. Finland, no. 43349/05, § 68, 6 April 2010). The extent to which the report and photo have been disseminated may also be an important factor, depending on whether the newspaper is a national or local one, and has a large or a limited circulation (see Karhuvaara and Iltalehti, cited above, § 47, and Gurgenidze, cited above, § 55). (ε) Circumstances in which the photos were taken 113. Lastly, the Court has already held that the context and circumstances in which the published photos were taken cannot be disregarded. In that connection regard must be had to whether the person photographed gave their consent to the taking of the photos and their publication (see Gurgenidze, cited above, § 56, and Reklos and Davourlis, cited above, § 41) or whether this was done without their knowledge or by subterfuge or other illicit means (see Hachette Filipacchi Associés ( ICI PARIS ), cited above, § 47, and Flinkkilä and Others v. Finland, no. 25576/04, § 81, 6 April 2010). Regard must also be had to the nature or seriousness of the intrusion and the consequences of publication of the photo for the person concerned (see Egeland and Hanseid, cited above, § 61, and Timciuc, cited above, § 150). For a private individual, unknown to the public, the publication of a photo may amount to a more substantial interference than a written article (see Eerikäinen and Others, cited above, § 70, and A. v. Norway, cited above, § 72). (c) Application of the principles to the present case 114. The Court takes note of the changes made by the Federal Court of Justice to its earlier case-law following the Von Hannover judgment. That court stated, inter alia, that in future importance had to be attached to whether the report in question contributed to a factual debate and whether its contents went beyond a mere desire to satisfy public curiosity. It observed in that connection that the greater the information value for the public, the more the interest of a person in being protected against its publication had to yield, and vice versa. Whilst pointing out that the freedom of expression also included the entertainment press, it stated that the reader’s interest in being entertained generally carried less weight than the interest in protecting the private sphere. 115. The Federal Constitutional Court confirmed that approach, stating that whilst it had not, in its judgment of 15 December 1999, called into question the former case-law of the Federal Court of Justice, that did not mean that another concept of protection – giving greater weight to balancing the conflicting interests at stake when examining the question whether a photo could be regarded as an aspect of contemporary society and could accordingly be published without the consent of the person concerned – could not be in conformity with the Basic Law. 116. In so far as the applicants alleged that the new approach of the Federal Court of Justice and the Federal Constitutional Court merely reproduced the reasoning of the former case-law using different terms, the Court reiterates that its task is not to review the relevant domestic law and practice in abstracto, but to determine whether the manner in which they were applied to the applicants has infringed Article 8 of the Convention (see Karhuvaara and Iltalehti, cited above, § 49). 117. The Court observes that in applying its new approach the Federal Court of Justice found that as neither the part of the article accompanying the photos of the applicants’ skiing holiday nor the photos themselves contained information related to an event of contemporary society, they did not contribute to a debate of general interest. The Federal Court of Justice found that the same could not be said, however, with regard to the information in the articles about the illness affecting Prince Rainier III, the reigning sovereign of the Principality of Monaco at the time, and the conduct of the members of his family during that illness. In the Federal Court of Justice’s opinion, that subject qualified as an event of contemporary society on which the magazines were entitled to report, and which entitled them to include the photos in question in that report as these supported and illustrated the information being conveyed. The Federal Constitutional Court, for its part, observed that the Federal Court of Justice had accepted that the reigning Prince of Monaco’s illness could be regarded as a matter of general interest and that the press was therefore entitled to report on how the prince’s children reconciled their obligations of family solidarity with the legitimate needs of their private life, among which was the desire to go on holiday. It also confirmed that there was a sufficiently close link between the photo and the event described in the article. 118. The Court observes that the fact that the Federal Court of Justice assessed the information value of the photo in question in the light of the accompanying article cannot be criticised under the Convention (see, mutatis mutandis, Tønsbergs Blad A.S. and Haukom v. Norway, no. 510/04, § 87, 1 March 2007, and Österreichischer Rundfunk v. Austria, no. 35841/02, §§ 68-69, 7 December 2006). Regarding the characterisation of Prince Rainier’s illness as an event of contemporary society, the Court is of the opinion that, having regard to the reasons advanced by the German courts, that interpretation cannot be considered unreasonable (see, mutatis mutandis, Editions Plon, cited above, §§ 46-57). It is worth mentioning in this connection that the Federal Court of Justice upheld the injunction forbidding publication of two other photos showing the applicants in similar circumstances, precisely on the grounds that they were being published for entertainment purposes alone (see paragraphs 36-37 above). The Court can therefore accept that the photos in question, considered in the light of the accompanying articles, did contribute, at least to some degree, to a debate of general interest. It would reiterate, on this point, that not only does the press have the task of imparting information and ideas on all matters of public interest, the public also has a right to receive them (see paragraph 102 above). 119. In so far as the applicants complained of a risk that the media would circumvent the conditions laid down by the Federal Court of Justice by using any event of contemporary society as a pretext to justify the publication of photos of them, the Court notes that it is not its task, in the context of the present applications, to rule on the conformity with the Convention of any future publication of photos of the applicants. Should that happen, it will be open to them to bring proceedings in the appropriate national courts. The Court also observes that the Federal Constitutional Court stated in its judgment that where an article was merely a pretext for publishing a photo of a prominent person, no contribution was thereby made to the formation of public opinion and there were therefore no grounds for allowing the interest in publication to prevail over the protection of personality rights. 120. Admittedly, the Federal Court of Justice based its reasoning on the premise that the applicants were well-known public figures who particularly attracted public attention, without going into their reasons for reaching that conclusion. The Court considers, nonetheless, that irrespective of the question whether and to what extent the first applicant assumes official functions on behalf of the Principality of Monaco, it cannot be claimed that the applicants, who are undeniably very well known, are ordinary private individuals. They must, on the contrary, be regarded as public figures (see Gurgenidze, cited above, § 40; Sciacca, cited above, § 27; Reklos and Davourlis, cited above, § 38; and Giorgi Nikolaishvili v. Georgia, no. 37048/04, § 123, 13 January 2009). 121. The Federal Court of Justice then examined the question whether the photos had been taken in circumstances unfavourable to the applicants. The Government submitted that the fact that the photos had been taken without the applicants’ knowledge did not necessarily mean that they had been taken surreptitiously in conditions unfavourable to the applicants. The latter, for their part, alleged that the photos had been taken in a climate of general harassment with which they were constantly confronted. 122. The Court observes that the Federal Court of Justice concluded that the applicants had not adduced evidence of unfavourable circumstances in that connection and that there was nothing to indicate that the photos had been taken surreptitiously or by equivalent secret means such as to render their publication illegal. The Federal Constitutional Court, for its part, stated that the publishing company concerned had provided details of how the photo that had appeared in the Frau im Spiegel magazine had been taken, but that the first applicant had neither complained before the civil courts that those details were inadequate nor submitted that the photo in question had been taken in conditions that were unfavourable to her. 123. The Court observes that, according to the case-law of the German courts, the circumstances in which photos have been taken constitutes one of the factors that are normally examined when the competing interests are balanced against each other. In the present case it can be seen from the decisions of the national courts that this factor did not require a more thorough examination as the applicants did not put forward any relevant arguments and there were no particular circumstances justifying an injunction against publishing the photos. The Court notes, moreover, as pointed out by the Federal Court of Justice, that the photos of the applicants in the middle of a street in St Moritz in winter were not in themselves offensive to the point of justifying their prohibition. (d) Conclusion 124. The Court observes that, in accordance with their case-law, the national courts carefully balanced the right of the publishing companies to freedom of expression against the right of the applicants to respect for their private life. In doing so, they attached fundamental importance to the question whether the photos, considered in the light of the accompanying articles, had contributed to a debate of general interest. They also examined the circumstances in which the photos had been taken. 125. The Court also observes that the national courts explicitly took account of the Court’s relevant case-law. Whilst the Federal Court of Justice had changed its approach following the Von Hannover judgment, the Federal Constitutional Court, for its part, had not only confirmed that approach, but also undertaken a detailed analysis of the Court’s case-law in response to the applicants’ complaints that the Federal Court of Justice had disregarded the Convention and the Court’s case-law. 126. In those circumstances, and having regard to the margin of appreciation enjoyed by the national courts when balancing competing interests, the Court concludes that the latter have not failed to comply with their positive obligations under Article 8 of the Convention. Accordingly, there has not been a violation of that provision. | The Court held that there had been no violation of Article 8 (right to respect for private life) of the Convention, noting in particular that the German courts had carefully balanced the right of the publishing companies to freedom of expression against the right of the applicants to respect for their private life. In doing so, they had attached fundamental importance to the question whether the photographs, considered in the light of the accompanying articles, had contributed to a debate of general interest. They had also examined the circumstances in which the photographs had been taken. |
767 | Complaint about amount of damages awarded for harm caused to one’s health | THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 11. The applicant complained that her health had been endangered as a result of having drunk contaminated water. She considered that there had been a violation of Article 8 of the Convention, which reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Admissibility 12. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ submissions 13. The applicant submitted that although the domestic courts had found a violation of her rights, the award made in her favour had been too small to compensate for the physical and mental suffering caused to her and her family. Moreover, she submitted documents confirming that she had continued to have health problems after the events of 2005, such as an acute ulcer, chronic cholecystitis, uncompensated hypothyroidism and a metabolic disorder. She had been regularly treated since then for these conditions. 14. The Government submitted that the domestic courts had in essence established a violation of the applicant ’ s rights under Article 8 of the Convention. Moreover, they had decided the amount of compensation based on their direct knowledge of the case and on the basis of the parties ’ arguments and evidence. The applicant had been awarded compensation in respect of this breach of Article 8 and consequently no longer had victim status. The award made by the domestic courts had been reasonable in the light of the relatively short period of the applicant ’ s in-patient treatment and the lack of evidence of any long-lasting effects on the applicant. 2. The Court ’ s assessment 15. As the Court has had previous occasion to remark, the concept of “private life” is a broad term not susceptible to exhaustive definition. It covers, inter alia, the physical and psychological integrity of a person (see, for instance, X and Y v. the Netherlands, 26 March 1985, § 22, Series A no. 91, Pretty v. the United Kingdom, no. 2346/02, § 61, ECHR 2002 ‑ III and G.B. and R.B. v. the Republic of Moldova, no. 16761/09, § 29, 18 December 2012 ). It has also found that “there is no explicit right in the Convention to a clean and quiet environment, but where an individual is directly and seriously affected by noise or other pollution, an issue may arise under Article 8” (see, for instance, Powell and Rayner v. the United Kingdom, 21 February 1990, § 40, Series A no. 172, López Ostra v. Spain, 9 December 1994, § 51, Series A no. 303 ‑ C, Guerra and Others v. Italy, 19 February 1998, § 57, Reports of Judgments and Decisions 1998 ‑ I and Hatton and Others v. the United Kingdom [GC], no. 36022/97, § 96, ECHR 2003 ‑ VIII ). Moreover, “Article 8 may apply in environmental cases whether the pollution is directly caused by the State or whether State responsibility arises from the failure to regulate private industry properly. Whether the case is analysed in terms of a positive duty on the State to take reasonable and appropriate measures to secure the applicants ’ rights under paragraph 1 of Article 8 or in terms of an interference by a public authority to be justified in accordance with paragraph 2, the applicable principles are broadly similar” ( Hatton and Others, cited above, § 98 ). 16. The Court recalls that it falls first to the national authorities to redress any alleged violation of the Convention. The question whether a person may still claim to be the victim of an alleged violation of the Convention essentially entails on the part of the Court an ex post facto examination of his or her situation. A decision or measure of the domestic authorities favourable to the applicant is not in principle sufficient to deprive her of her status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see, for instance, Ciorap v. Moldova (no. 2), no. 7481/06, § 18, 20 July 2010 ). The question whether the victim of a violation of the Convention has received reparation for the damage caused – comparable to just satisfaction as provided for under Article 41 of the Convention – is an important issue. It is the Court ’ s settled case-law that where the national authorities have found a violation and their decision constitutes appropriate and sufficient redress, the party concerned can no longer claim to be a victim within the meaning of Article 34 of the Convention (see Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 179-181, ECHR 2006 ‑ V). 17. In the present case, the Court notes that the parties did not dispute the domestic courts ’ findings concerning the violation of the applicant ’ s rights by the State-owned company. Considering the materials in the file, the Court finds that an interference with the applicant ’ s rights protected under Article 8 of the Convention has taken place since her physical integrity has been affected by an unhealthy environment (see paragraph 15 above). In assessing whether the Moldovan authorities discharged their positive obligation under that provision, the Court notes that the domestic courts provided a remedy in the form of establishing the company ’ s responsibility and awarding compensation. Without expressly relying on the Convention but referring to the in-hospital treatment and the physical and mental suffering caused to the applicant (see paragraph 8 above), those courts ’ judgments could be interpreted as finding in fact a breach of the applicant ’ s Article 8 rights, as also argued by the Government (see paragraph 14 above). The Court sees no reason to depart from those findings in this respect. 18. The only issue which remains to be determined is the amount of compensation. The first-instance court awarded the applicant the equivalent of EUR 648 in respect of non-pecuniary damage, referring to such criteria as the amount of physical and mental suffering caused (see paragraph 8 above). While confirming the findings of the first-instance court, the higher court halved the award made and the Supreme Court of Justice upheld that reduced award. The higher courts relied on the same elements (degree of harm), but arrived at a different conclusion concerning the amount to be awarded. No specific reasons were given for this reduction, except a reference to the degree of responsibility of the defendant. 19. The Court takes into account the Government ’ s argument concerning the relatively short period of in-patient treatment and the absence of evidence of long-term effects on the applicant. Nevertheless, she was kept in hospital for two weeks, which implies that she sustained a certain degree of mental and physical suffering. Moreover, it considers that the sum awarded by the domestic courts is considerably below the minimum generally awarded by the Court in cases in which it has found a violation of Article 8 in respect of the Republic of Moldova, even taking into account the differences between these decisions. 20. In the light of the foregoing, the Court considers that the applicant can still claim to be a victim of a violation of Article 8 of the Convention. Furthermore, in the light of the conclusions of the domestic courts, it finds that there has been a violation of Article 8. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 21. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 22. The applicant claimed EUR 50,000 in respect of non-pecuniary damage. 23. The Government disagreed, arguing that this amount was unfounded and that the claim should thus be dismissed. 24. Having regard to the violation found above and the award made in the applicant ’ s favour by the domestic courts, the Court considers that an award of compensation for non-pecuniary damage is justified in this case. Making its assessment on an equitable basis, the Court awards the applicant EUR 4, 0 00. B. Costs and expenses 25. The applicant made no claim in this respect. C. Default interest 26. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 8 (right to respect of private life) of the Convention, finding that even though the domestic courts had established responsibility and awarded compensation in the proceedings brought against the State-owned local utilities provider, the sum awarded was insufficient for the degree of harm that had been caused to the applicant’s health. |
455 | Treatment of prisoners with drug addiction | II. RELEVANT DOMESTIC LAW AND PRACTICE A. Provisions of the Bavarian Execution of Sentences Act 27. The relevant provisions of the Bavarian Execution of Sentences Act ( Bayerisches Strafvollzugsgesetz ) concerning the examination of applications for drug substitution therapy read as follows: Section 2: Objectives of the execution of sentences “ The execution of a prison sentence serves to protect the public from further crime. It shall enable prisoners to lead a socially responsible and law-abiding life in the future (obligation of treatment). ” Section 3: Treatment during the execution of a sentence “ Treatment shall include all measures which may promote a crime-free life in the future. Its purpose is to prevent the commission of further crime and to protect victims. ... ” Part 8: Health careSection 58: General Rules “ (1) The physical and mental health of the prisoner must be ensured. ... ” Section 60: Medical Treatment “ Prisoners are entitled to medical treatment if such treatment is necessary in order to detect or cure an illness, to prevent the aggravation of an illness or to alleviate its symptoms. Medical treatment includes: 1. treatment by a doctor, ... 4. the provision of medicine, dressings, and other health aids, ... ” B. Legal provisions and guidelines concerning drug substitution treatment 28. Under section 13 §§ 1 and 3 of the Narcotic Substances Act ( Betäubungsmittelgesetz ), doctors may only provide a person with drugs covered by the Act (notably methadone) if their use can be justified. The Federal Government is authorised to issue a Regulation covering the prescription and provision of such drugs, including the prescription of substitution drugs for drug addicts. 29. Section 5 of the Prescription of Narcotic Substances Regulation ( Betäubungsmittel-Verschreibungsverordnung ), issued in accordance with section 13 of the Narcotic Substances Act, lays down rules on the prescription of narcotic substances for substitution treatment. Under section 5 § 1, the treatment of drug addicts with substitution drugs serves to treat a patient ’ s drug addiction with the aim of gradually restoring his abstinence from narcotic substances, including the improvement and stabilisation of the patient ’ s state of health. It may also serve to support the treatment of a serious illness the patient is suffering from alongside his or her drug addiction. Section 5 § 2 provides that a doctor may prescribe a substitution drug under the conditions laid down in section 13 of the Narcotic Substances Act unless, in particular, there are indications that the patient is consuming substances of a type or quantity endangering the objective of the substitution treatment. In accordance with section 5 § 11, the Federal Medical Association may issue guidelines codifying the recognised state of the medical art with regard to various aspects of drug substitution treatment. Compliance with the state of the medical art shall be assumed if and insofar as the guidelines in this respect were observed. 30. Relying on section 5 § 11 of the Prescription of Narcotic Substances Regulation, the Federal Medical Association issued its Guidelines for the Substitution Treatment of Opiate Addicts of 19 February 2010. In the Guidelines ’ preamble, it is clarified that opiate addiction is a serious chronic disease requiring medical treatment and that substitution treatment was a scientifically tested form of therapy for manifest opiate addiction. The aims of drug substitution therapy included securing the survival of the patient, the reduction of the use of other drugs, the stabilisation of the patient ’ s health and the treatment of further diseases, the participation in social and work life and a drug-free life. Paragraph 2 of the Guidelines provides that drug substitution treatment is indicated in cases of manifest opiate addiction as defined by the International Classification of Diseases if, in the circumstances of the case, it has more prospects of success than abstinence ‑ based therapies. In individual reasoned cases, drug substitution treatment may also be started in case of drug addicts who are currently abstinent but placed in a protective environment such as a prison. Paragraph 8 of the Guidelines provides that in case of imprisonment, the continuity of the substitution treatment by the institution in which the patient is placed is to be secured. Under paragraph 12 of the Guidelines, substitution treatment shall be discontinued if it is accompanied by a continuous, problematic consumption of other dangerous substances. C. Research on drug substitution treatment 31. A study commissioned by the Federal Ministry of Health and carried out by the University of Dresden, published in 2011, on Predictors, Moderators and Outcome on Substitution Treatments (the PREMOS study) confirmed that opioid addiction was a serious chronic disease. Drug substitution treatment had been tested for the first time in the United States of America in 1949 and has been considered subsequently as both an established and the best possible therapy for opioid addiction. One of the commonly used medications for drug substitution therapy is methadone, a synthetic opioid with strong pain-killing effects. Long-term substitution treatment had proved effective in that the primary aims of that treatment ( that is, continuity of treatment, securing survival, reduction of drug consumption, stabilisation of comorbidity and social participation) were attained. Stable abstinence from opioids was a rare phenomenon in the long run ( attained by less than 4 % of the opioid addicts examined ) and was associated with considerable risks (notably death). The termination of substitution treatment should therefore be envisaged only if, in particular, there was a stable motivation and a good psycho-social environment and treatment of the patient (see pp. 4 -15 and 125-133 of the study report). III. RELEVANT COUNCIL OF EUROPE DOCUMENTS 32. The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) of the Council of Europe issues the CPT standards, in which the “substantive” sections of the CPT ’ s yearly General Reports are summarised. In its CPT standards as established at the time of the applicant ’ s detention ( CPT/Inf/E (2002) 1 ‑ Rev. 20 10 ), which have not been amended since then in respect of the issues relevant here (see CPT/Inf/E (2002) 1 ‑ Rev. 2015), the CPT made the following relevant findings and recommendations: “Health care services in prisons Extract from the 3 rd General Report [CPT/Inf (93) 12], published in 1993 31. ... the CPT wishes to make clear the importance which it attaches to the general principle - already recognised in most, if not all, of the countries visited by the Committee to date - that prisoners are entitled to the same level of medical care as persons living in the community at large. This principle is inherent in the fundamental rights of the individual. ... Equivalence of care i) general medicine 38. A prison health care service should be able to provide medical treatment and nursing care, as well as appropriate diets, physiotherapy, rehabilitation or any other necessary special facility, in conditions comparable to those enjoyed by patients in the outside community. Provision in terms of medical, nursing and technical staff, as well as premises, installations and equipment, should be geared accordingly. ” 33. Recommendation Rec(2006)2 of the Committee of Ministers to member States on the European Prison Rules, adopted on 11 January 2006 at the 952 nd meeting of the Ministers ’ Deputies (“the European Prison Rules”), provides a framework of guiding principles for the treatment of persons deprived of their liberty. The relevant extracts in Part III of the appendix to the Recommendation, on “Health”, provide: “Organisation of prison health care ... 40.3 Prisoners shall have access to the health services available in the country without discrimination on the grounds of their legal situation. 40.4 Medical services in prison shall seek to detect and treat physical or mental illnesses or defects from which prisoners may suffer. 40.5 All necessary medical, surgical and psychiatric services including those available in the community shall be provided to the prisoner for that purpose.” 34. Recommendation no. R (98) 7 of the Committee of Ministers to member States concerning the ethical and organisational aspects of health care in prison, adopted on 8 April 1998 at the 627 th meeting of the Ministers ’ Deputies, provides, in its Appendix, in so far as relevant : “7. The prison administration should make arrangements for ensuring contacts and co-operation with local public and private health institutions. Since it is not easy to provide appropriate treatment in prison for certain inmates addicted to drugs, alcohol or medication, external consultants belonging to the system providing specialist assistance to addicts in the general community should be called on for counselling and even care purposes. ... Equivalence of care 10. Health policy in custody should be integrated into, and compatible with, national health policy. A prison health care service should be able to provide medical, psychiatric and dental treatment and to implement programmes of hygiene and preventive medicine in conditions comparable to those enjoyed by the general public. Prison doctors should be able to call upon specialists. If a second opinion is required, it is the duty of the service to arrange it. ... 45. The treatment of the withdrawal symptoms of abuse of drugs, alcohol or medication in prison should be conducted along the same lines as in the community.” 35. According to the Policy paper on preventing risks and reducing harm linked to the use of psychoactive substances adopted in November 2013 by the Permanent Correspondents of the Co-operation Group to Combat Drug Abuse and Illicit trafficking in Drugs (Pompidou Group) of the Council of Europe (P-PG (2013) 20), there is a growing recognition that drug dependence must be understood and treated as a chronic, preventable, treatable and recoverable disease. At the same time national differences in political acceptance, interpretation and variance in the type of feasible measures, as well as access to them and their availability, persist. Despite these differences, there is a general prevailing consensus that abstinence and recovery-oriented policies need to be supplemented by measures that can demonstrably reduce the harms and risks of psychoactive substance use (ibid., § 10). IV. RELEVANT STATISTICAL DATA 36. According to the data collected by Harm Reduction International (HRI), a non-governmental organisation, in 2012 opioid substitution therapy programmes were operational in the community in 41 of the Council of Europe Member States. No such programmes existed in Andorra, Monaco, the Russian Federation and Turkey (in the latter country, they were introduced by 2015); no statistical data was available in respect of Liechtenstein and San Marino. In 2012, opioid substitution programmes were available also in prison in 30 of the Council of Europe Member States whereas no such treatment was available in prison in 15 of the Council of Europe Member States (Andorra, Armenia, Azerbaijan, Bosnia and Herzegovina, Bulgaria, Cyprus, Estonia, Greece, Iceland, Lithuania, Monaco, the Russian Federation, the Slovak Republic, Turkey and Ukraine); no statistical data was available in respect of Liechtenstein and San Marino. By 2015, opioid substitution programmes had been made available also in prison in Bulgaria, Estonia, Turkey and Ukraine. 37. The HRI data for 2012 correspond to those published by the European Monitoring Centre for Drugs and Drug Addiction (EMCDDA), a European Union decentralized agency, in their 2012 study entitled “Prisons and drug abuse in Europe: the problem and responses ”, which contains data in respect of all (then) European Union Member States, Croatia, Turkey and Norway. THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 38. The applicant complained that the refusal to grant him drug substitution therapy in prison, which had made him suffer considerable pain and had caused damage to his health, and the refusal to have the necessity of drug substitution therapy examined by an external medical expert amounted to inhuman treatment. He relied on Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 39. The Government contested that argument. A. Admissibility 40. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ submissions (a) The applicant 41. According to the applicant ’ s submission, the authorities ’ refusal to offer him drug substitution therapy in detention, without having consulted an external medical expert, had constituted inhuman treatment in breach of Article 3 of the Convention. 42. The applicant argued that in the circumstances of his case, drug substitution therapy had been the only suitable treatment for his condition. By refusing him that treatment, the authorities had exceeded the margin of appreciation they had in respect of the provision of medical treatment to prisoners and had therefore disregarded their positive obligations under Article 3. 43. In order to support this view, the applicant submitted that he has been addicted to heroin for some forty years. The Munich Court of Appeal itself, in its decision of 25 June 2010 (see paragraph 8 above ), had considered that he stood no chance of leading a drug-free life for a considerable time. Prior to his imprisonment, he had received drug substitution therapy without interruption from 1991 to 2008. 44. In the applicant ’ s view, drug substitution therapy had been necessary to alleviate his severe neurological pain and had previously proved successful in attaining that aim. In contrast, the mere treatment of his pain with painkillers had been ineffective and thus insufficient. Drug substitution therapy had also been the adequate treatment for reducing his craving for heroin and allowing for the proper treatment of his other serious disease, namely the treatment with Interferon of the hepatitis C from which he suffered. It would have enabled him, as it had during the time when he had received substitution treatment, to lead a “normal” everyday life. By illegally refusing him that treatment, the authorities had caused him to suffer intense physical and mental pain. 45. Furthermore, the applicant submitted that the authorities had not sufficiently examined the necessity of providing him with drug substitution therapy. The necessity to offer him such treatment should have been examined by an independent medical expert, as requested by him throughout the proceedings before the domestic authorities. In the applicant ’ s view, the prison doctors of Kaisheim Prison, where no drug substitution treatment had ever been carried out, did not have the professional training and experience to assess the necessity of substitution therapy. 46. The applicant further stressed that neither the prison doctor nor the courts had had regard to, or at least mentioned, the applicable provisions ( section 13 of the Narcotic Substances Act, read in conjunction with section 5 of the Prescription of Narcotic Substances Regulation and the Federal Medical Association ’ s Guidelines for the Substitution Treatment of Opiate Addicts) which regulated the provision of drug substitution therapy. The requirements for drug substitution therapy had been met in his case. In accordance with section 5 § 1 of the Prescription of Narcotic Substances Regulation, it would have served to support the necessary treatment of the serious illnesses, namely hepatitis C, HIV and polyneuropathy, from which he was suffering alongside his drug addiction. Moreover, as required by section 5 § 2 of the said Regulation, there were no indications that the applicant would consume, in prison, substances of a type or quantity endangering the objective of the substitution treatment. His drug substitution treatment had been interrupted in breach of paragraph 8 of the Federal Medical Association ’ s Guidelines when he started serving his sentence. 47. The applicant also claimed that he had been discriminated against by the refusal of drug substitution treatment in comparison to other heroin addicts who were not imprisoned and those who were imprisoned in the Land of Baden-Württemberg, who had the opportunity to obtain substitution treatment in accordance with the relevant medical guidelines. Substitution had been denied to him as a matter of principle and for outdated ideological, rather than medical, reasons. (b) The Government 48. The Government took the view that the refusal to grant the applicant drug substitution therapy in prison, without an external medical expert having been consulted, had not violated Article 3 of the Convention. 49. According to the Government ’ s submission, the applicant had received the required adequate medical treatment in detention. They contested that drug substitution therapy had been necessary treatment for the applicant ’ s condition, and still less the only treatment suitable to sustain the applicant ’ s health. As found by the prison doctor, substitution treatment had not been necessary on medical grounds. Such treatment had equally been unnecessary to attain the aims pursued by the execution of a term of imprisonment. It would have run counter to the aim of rehabilitating of the applicant in prison and enabling him to lead a drug-free life. Therefore, the refusal of drug substitution treatment had fallen within the State ’ s margin of appreciation in respect of the choice between different types of medical treatment of a detainee. This applied all the more as the applicant ’ s diseases had not been caused by State action. 50. The Government explained that the applicant, having been properly examined by the prison doctor, had received comprehensive medical care in accordance with sections 58 and 60 of the Bavarian Execution of Sentences Act (see paragraph 27 above). He received suitable treatment for his diseases, including painkillers as well as psychiatric care, to alleviate the chronic pain from which he was suffering and to treat his drug addiction. He had also been examined by specialised doctors regarding his HIV and hepatitis C infections and was given medication accordingly. His state of health had been stable while in detention and, at the relevant time, he no longer suffered from physical withdrawal symptoms. 51. Furthermore, the Government expressed doubts as to whether the relevant requirements for offering drug substitution treatment laid down in section 13 of the Narcotic Substances Act, read in conjunction with section 5 of the Prescription of Narcotic Substances Regulation and the Federal Medical Association ’ s Guidelines for the Substitution Treatment of Opiate Addicts (see paragraphs 28-30 above) were met in the applicant ’ s case. Contrary to the requirements laid down in section 5 § 1 of the Prescription of Narcotic Substances Regulation, the applicant did not pursue the aim of gradually restoring his abstinence from narcotic substances. Moreover, it was doubtful whether the requirements of section 5 § 2 of the said Regulation were met as it was to be expected that the applicant, just as in the past, would consume substances of a type or quantity endangering the objective of the substitution treatment, namely heroin, in addition to his substitution treatment, which would be life-threatening. Furthermore, in accordance with the Federal Medical Association ’ s Guidelines, drug substitution treatment was to be provided in prison only in individual reasoned cases. The prison doctors had not considered this requirement to be met. 52. The Government conceded that a recent expert study commissioned by the Federal Ministry of Health (see paragraph 31 above) had revealed that stable abstinence from narcotic substances was a rare phenomenon in practice and appeared to be an unrealistic treatment objective in the long run. However, according to the experts ’ findings, abstinence could nevertheless be a legitimate aim of substitution treatment fixed between doctor and patient. 53. The Government further argued that the authorities had sufficiently examined the necessity to provide the applicant with drug substitution treatment. They stressed that the applicant, prior to his detention in Kaisheim Prison, had been detained in the Günzburg drug rehabilitation centre, where the doctors specialised in treatment for drug addiction had not considered it necessary to provide him with drug substitution treatment. Moreover, they submitted that one of the applicant ’ s treating doctors in prison had carried out drug substitution therapy many times while employed in the Land of Lower Saxony. He had therefore equally had the necessary professional qualifications and experience to assess the necessity of providing the applicant with drug substitution treatment. This had been verified by the domestic courts. The applicant did not have a right to choose freely his medical treatment and his treating doctor while in detention and therefore could not ask to be examined and treated by an external doctor. 2. The Court ’ s assessment (a) Recapitulation of the relevant principles 54. The Court reiterates that to come within the scope of the interdiction contained in Article 3 of the Convention the treatment inflicted on or endured by the victim must reach a minimum level of severity. The assessment of this minimum level of severity is a relative one, depending on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see, inter alia, Blokhin v. Russia [GC], no. 47152/06, § 135, ECHR 2016, with further references ). 55. The Court further reiterates that Article 3 of the Convention imposes on the State a positive obligation to ensure that a person is detained under conditions which are compatible with respect for human dignity, that the manner and method of the execution of the measure do not subject the individual to distress or hardship exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, the person ’ s health and well-being are adequately secured by, among other things, the provision of the requisite medical assistance and treatment (see Kudła v. Poland [GC], no. 30210/96, § 94, ECHR 2000 ‑ XI; McGlinchey and Others v. the United Kingdom, no. 50390/99, § 46, ECHR 2003 ‑ V; and Farbtuhs v. Latvia, no. 4672/02, § 51, 2 December 2004 ). In this connection, the “adequacy” of medical assistance remains the most difficult element to determine. Medical treatment provided within prison facilities must be appropriate, that is, at a level comparable to that which the State authorities have committed themselves to provide to the population as a whole. Nevertheless, this does not mean that every detainee must be guaranteed the same level of medical treatment that is available in the best health establishments outside prison facilities (see, inter alia, Blokhin, cited above, § 137 ). 56. The Court has clarified in this context that it was essential for a prisoner suffering from a serious illness to undergo an adequate assessment of his or her current state of health, by a specialist in the disease in question, in order to be provided with appropriate treatment (compare Keenan v. the United Kingdom, no. 27229/95, §§ 115-116, ECHR 2001 ‑ III, concerning a mentally ill prisoner; Khudobin v. Russia, no. 59696/00, §§ 95 ‑ 96, ECHR 2006 ‑ XII (extracts), concerning a prisoner suffering from several chronic diseases including hepatitis C and HIV; and Testa v. Croatia, no. 20877/04, §§ 51-52, 12 July 2007, concerning a prisoner suffering from chronic hepatitis C ). 57. The prison authorities must offer the prisoner the treatment corresponding to the disease(s) the prisoner was diagnosed with (see Poghosyan v. Georgia, no. 9870/07, § 59, 24 February 2009 ), as prescribed by the competent doctors ( see Xiros v. Greece, no. 1033/07, § 75, 9 September 2010). In the event of diverging medical opinions on the treatment necessary to ensure adequately a prisoner ’ s health, it may be necessary for the prison authorities and the domestic courts, in order to comply with their positive obligation under Article 3, to obtain additional advice from a specialised medical expert (compare Xiros, cited above, §§ 87 and 89 -90; and Budanov v. Russia, no. 66583/11, § 73, 9 January 2014 ). The authorities ’ refusal to allow independent specialised medical assistance to be given to a prisoner suffering from a serious medical condition on his request is an element the Court has taken into account in its assessment of the State ’ s compliance with Article 3 (compare, for instance, Sarban v. Moldova, no. 3456/05, § 90, 4 October 2005). 58. The Court further reiterates, being sensitive to the subsidiary nature of its role, that it is not its task to rule on matters lying exclusively within the field of expertise of medical specialists and to establish whether an applicant in fact required a particular treatment or whether the choice of treatment methods appropriately reflected the applicant ’ s needs (see Ukhan v. Ukraine, no. 30628/02, § 76, 18 December 2008; and Sergey Antonov, no. 40512/13, § 86, 22 October 2015 ). However, having regard to the vulnerability of applicants in detention, it is for the Government to provide credible and convincing evidence showing that the applicant concerned had received comprehensive and adequate medical care in detention (see Sergey Antonov, ibid. ). (b) Application of these principles to the present case 59. The Court is called upon to determine whether, in the light of the foregoing principles, the respondent State complied with its positive obligation under Article 3 of the Convention to ensure that the applicant ’ s health was adequately secured during his detention by providing him with the requisite medical treatment, at a level comparable to that which the State authorities have committed themselves to provide to persons in freedom. 60. The Court observes that it is contested between the parties whether, in the circumstances of the case, drug substitution therapy was to be regarded as the necessary medical treatment which had to be provided to the applicant in order for the State to comply with its said obligation. 61. The Court accepts that the States have a margin of appreciation in respect of the choice between different suitable types of medical treatment for a prisoner ’ s diseases. This holds true, in particular, where medical research does not lead to a clear result as to which of two or more possible therapies is more suitable for the patient concerned. The Court, having regard to the material before it, is aware of the fact that drug substitution therapy with methadone entails the replacement of an illicit drug with a synthetic opioid. While drug substitution treatment has become increasingly widespread in the Council of Europe Member States during the past years, the measures to be taken to treat drug addiction are still the subject of controversy. The States ’ margin of appreciation in respect of the choice of medical treatment for a prisoner ’ s diseases applies, in principle, also to the choice between abstinence-oriented drug therapy and drug substitution therapy and to the setting-up of a general policy in this field, as long as the State ensures that the standards set by the Convention in the field of medical care in prison are complied with. 62. The Court considers that in the present case, it does not need to decide whether the applicant in fact needed drug substitution therapy. It rather has to determine whether the respondent State has provided credible and convincing evidence proving that the applicant ’ s state of health and the appropriate treatment were adequately assessed and that the applicant subsequently received comprehensive and adequate medical care in detention. 63. In this context, the Court notes that there are a number of strong elements indicating that drug substitution treatment could be regarded as the requisite medical treatment for the applicant in view of the following. First, it is uncontested between the parties that the applicant is a manifest and long-term opioid addict. At the relevant time of the domestic authorities ’ decisions, he had been addicted to heroin for some forty years. All his attempts to overcome his addiction, including five in-house drug rehabilitation therapies, had failed. In the light of these circumstances, a domestic court itself had confirmed, in proceedings related to those here at issue, that it could no longer be expected with sufficient probability that the applicant could be cured of his drug addiction or prevented for a considerable time from relapsing into drug abuse (see paragraph 8 above). It is further uncontested that the applicant suffered from chronic pain linked to his long-term drug consumption and polyneuropathy. 64. In view of his state of health, prior to his detention here at issue, the applicant ’ s heroin addiction had been treated with medically prescribed and supervised drug substitution therapy for seventeen years, from 1991 until 2008. The Court notes in this context that according to the relevant domestic guidelines, that is, the Federal Medical Association ’ s Guidelines for the Substitution Treatment of Opiate Addicts of 19 February 2010, adopted in accordance with section 5 § 11 of the Prescription of Narcotic Substances Regulation, opiate addiction was a serious chronic disease requiring medical treatment. It is further clarified that substitution treatment was a scientifically tested therapy for manifest opiate addiction (see paragraph 30 above). According to a study commissioned by the Federal Ministry of Health, drug substitution treatment was to be considered as an established therapy and the best possible therapy in that case (see paragraph 31 above). The statistical data before the Court show, accordingly, that opioid substitution therapy programmes were operational already at the relevant time of the proceedings at issue in 41 out of 47 of the Council of Europe Member States in the community and 30 out of 47 of those State also provided such therapy to prisoners (see paragraphs 3 6 - 3 7 above). 65. The Court further observes that it is uncontested by the Government that drug substitution therapy is, in principle, available in prisons in Germany, as it is outside prison, and is actually provided in practice in prisons in several Länder other than Bavaria. The applicable provisions of domestic law (section 13 of the Narcotic Substances Act, read in conjunction with section 5 of the Prescription of Narcotic Substances Regulation and paragraph 8 of the Federal Medical Association ’ s Guidelines for the Substitution Treatment of Opiate Addicts ) specify, in particular, that in case of imprisonment, the continuity of the substitution treatment started outside prison by the institution in which the patient is placed, is to be secured ( see paragraph 30 above ). 66. The Court would note in that context that this approach is in line with the standards fixed by the Council of Europe in respect of health care services in prison. Both the CPT standards and the Committee of Ministers ’ Recommendation Rec(2006)2 on the European Prison Rules (which do not specifically focus on drug therapy), as well as the Committee of Ministers ’ Recommendation no. R (98) 7 concerning the ethical and organisational aspects of health care in prison, lay down the principle of equivalence of care. Under that principle, prisoners are entitled to medical treatment in conditions comparable to those enjoyed by patients in the outside community and should have access to the health services available in the country without discrimination on grounds of their legal situation (see paragraphs 32-34 above and for the Court ’ s own definition paragraph 5 5 above ). 67. The Court further observes that not only the doctors having prescribed the applicant drug substitution therapy prior to his detention considered that treatment to be necessary in the applicant ’ s case. An external doctor for internal medicine commissioned by the prison authorities, H., who had examined the applicant in person, had suggested that the prison medical service, who had not considered it necessary to provide the applicant with such treatment, reconsider granting the applicant drug substitution treatment (see paragraph 10 above). Moreover, a doctor specialised in drug addiction treatment (B.) had equally confirmed, albeit only on the basis of the written findings of doctor H., that from a medical point of view, drug substitution treatment had to be provided to the applicant (see paragraph 11 above). 68. The Court would add that the strong indication that drug substitution treatment could be regarded as the requisite medical treatment for the applicant was subsequently further supported by the fact that the applicant was again prescribed and provided with drug substitution treatment immediately after his release from detention. 69. The Court would refer in this context to its case-law under which it is for the Government to provide convincing evidence showing that the applicant concerned received comprehensive and adequate medical care in detention (see paragraph 5 8 above ). It notes that abstinence-oriented therapy constituted a radical change in the medical treatment the applicant had received for seventeen years prior to his detention and that the domestic courts, based on the opinion of the treating doctors in the drug detoxification centre, considered that this therapy had failed. The Court finds that, in these circumstances, the domestic authorities were under an obligation to examine with particular scrutiny if maintaining the abstinence ‑ oriented therapy was to be considered as appropriate. 70. The Court considers, in this context, the authorities ’ argument that, at the time when the applicant was transferred from the drug rehabilitation centre to Kaisheim Prison, where he applied for drug substitution treatment, he had not been provided with drug substitution therapy for several months and no longer suffered from physical withdrawal symptoms. However, in the Court ’ s view, this element does not militate against the potential necessity of drug substitution treatment. The applicant ’ s health in detention was characterised, in particular, by chronic pain which he suffered independently of previous physical withdrawal symptoms. Moreover, it emerges from the material before the Court that the treatment with Polamidon was interrupted against the applicant ’ s will, and apparently contrary to what is provided by the above ‑ mentioned Federal Medical Association Guidelines (see paragraph 30 above), at the outset of his detention and during his stay in the drug rehabilitation centre, where abstinence- based treatment for his addiction was carried out without additional substitution treatment. The authorities cannot, therefore, rely on a situation which they themselves brought about. Furthermore, given that the abstinence-oriented therapy had failed both in the view of the treating doctors in the drug detoxification centre and in the view of the domestic courts (see paragraph 8 above), the authorities were called upon to assess anew which therapy was suitable for the applicant. 71. The Court further considers that its above findings are not called into question by the Government ’ s argument that drug substitution therapy would run counter to the aim of rehabilitating the applicant by making him overcome his drug addiction in prison and thus enabling him to lead a life free of illegal drugs outside prison. The Court considers that this objective is, in principle, a legitimate aim which may be taken into account in the assessment of the necessity of the medical treatment of a drug addict. However, the Court notes that in the applicant ’ s case, the authorities themselves had considered, prior to refusing the applicant drug substitution treatment in the proceedings at issue, that having regard to his history of drug addiction, this aim could not reasonably be expected to be attained. In particular, the Court of Appeal, when confirming the termination of the applicant ’ s treatment in a detoxification facility after consultation of the applicant ’ s treating doctors, considered that it could no longer be expected with sufficient probability that the applicant could be cured of his drug addiction (see paragraph 8 above). 72. The authorities ’ assessment in this respect is equally confirmed by medical research showing that stable abstinence from opioids was a rare phenomenon and should, in the case of manifest opioid addicts, only be attempted if the patient was motivated to attain that aim (see paragraph 31 above), which was clearly not the applicant ’ s case at the relevant time. Therefore, the refusal of drug substitution treatment could not be based on that unattainable objective. 73. Furthermore, the Court takes note of the Government ’ s argument that providing the applicant with substitution treatment would have put his life and limb in jeopardy as he might have consumed additional illegal drugs in prison. In the Government ’ s submission, he therefore also had not met the requirements for drug substitution treatment under section 5 § 2 of the Prescription of Narcotic Substances Regulation. The Court considers that this argument is somewhat at odds with another argument the authorities forwarded in the context of their refusal to provide substitution treatment, namely that it was very difficult to obtain opioids in prison. In any event, the Court observes that this risk appeared to have been manageable even in the community over the previous seventeen years during which the applicant had received drug substitution treatment. In contrast, the risk caused to the life and limb of a drug addict who was released from prison without substitution treatment was acknowledged also by the prison authorities (see paragraph 25 above). The Court therefore finds that this element equally did not exempt the domestic authorities from analysing in detail the suitable treatment options for the applicant. 74. The Court would add that it is aware that medical treatment in the prison context may entail additional difficulties and challenges for the domestic authorities, notably those related to security concerns. However, the Government have not forwarded any reasons for finding that providing the applicant with drug substitution treatment was incompatible with the practical demands of imprisonment. In contrast, as expert B. had stressed, such treatment would help prevent the spread of infectious diseases such as HIV and hepatitis C from which the applicant suffered, in the interests of his fellow prisoners and the community as a whole. The Court further accepts that the provision of such treatment may serve to diminish the trafficking and uncontrolled consumption of illegal drugs in prison. 75. Furthermore, the Court would stress that, in order for a State to comply with its positive obligation to ensure that a prisoner ’ s health was adequately ensured, it is not only necessary to assess adequately a prisoner ’ s state of health which, in case of serious illnesses, requires consultation of a specialist doctor (see paragraph 5 6 above). The necessary medical treatment adequately addressing the prisoner ’ s state of health must also be determined with the help of the medical expert and provided to the detainee. The Court notes in this context that the importance of drawing on external medical experts providing specialised assistance to addicts in order to provide prisoners with appropriate treatment is equally stressed in the Committee of Ministers ’ Recommendation no. R (98) 7 concerning the ethical and organisational aspects of health care in prison (see paragraph 34 above). 76. In the present case, the Court cannot but note that the domestic authorities had strong elements before them indicating that drug substitution therapy could be the adequate medical treatment for the applicant ’ s state of health. Moreover, as shown above (see paragraph 6 7 ), following the termination of the abstinence-oriented therapy for lack of success, they were faced with several opinions of medical doctors, including specialists in drug addiction treatment, diverging from that of the specialised internal doctors treating the applicant in prison and, before the abstinence-oriented therapy failed, in the detoxification facility, on the question of the necessary medical treatment to be provided to the applicant. The Court further cannot but note in that context that it is uncontested that no drug substitution treatment had ever been provided in practice to prisoners in Kaisheim Prison. 77. In these circumstances, the Court considers that in order to ensure that the applicant received the necessary medical treatment in prison the domestic authorities, and in particular the courts, were required to verify, in a timely manner and with the help of an independent doctor skilled in drug addiction treatment, whether the applicant ’ s condition was still adequately treated without such therapy. However, there is no indication that the domestic authorities, with the help of medical expert advice, examined the necessity of drug substitution treatment with regard to the criteria set by the relevant domestic legislation and medical guidelines. Despite the applicant ’ s previous medical treatment with drug substitution therapy for seventeen years, no follow-up was given to the opinions expressed by external doctors H. and B. on the necessity to consider providing the applicant again with drug substitution treatment. 78. As regards the effects of the refusal of drug substitution treatment in prison on the applicant, the Court, having regard to the material before it, considers that drug withdrawal as such causes serious physical strain and extreme mental stress to a manifest and long-term opioid addict which may attain the threshold of Article 3. It notes that, while the applicant was found no longer to suffer from the physical withdrawal symptoms which occur at the beginning of forced abstinence, the – albeit limited – material before the Court, in particular external doctor H. ’ s assessment, suggests that the chronic pain from which the applicant was suffering throughout the relevant period could have been alleviated more effectively with drug substitution treatment than with the painkillers he received. It was also not contested that this pain in his feet, neck and spine was such that, at least during certain periods of time during the applicant ’ s detention at issue, some three and a half years, the applicant spent most of his time in bed. The Court further accepts that his suffering was exacerbated by the fact that he was aware of the existence of a treatment which had previously alleviated his pain effectively, but which he was refused. 79. The Court further considers it established that the refusal to provide the applicant continuously with drug substitution treatment despite his manifest opioid addiction caused him considerable and continuous mental suffering for a long time. The applicant also made it plausible that the deterioration of his already poor state of health, and in particular his chronic pain, combined with his craving for heroin, reduced his ability to participate in social life. In the light of these elements, the Court is satisfied that the physical and mental strain the applicant suffered as a result of his health condition as such could, in principle, exceed the unavoidable level of suffering inherent in detention and attain the threshold of Article 3. The domestic authorities therefore had to properly evaluate which was the adequate treatment for his disease in order to secure that he received adequate medical care but, as shown above, failed to prove that the applicant ’ s treatment with painkillers alone was sufficient in the circumstances. 80. In the light of the foregoing, the Court concludes that the respondent State failed to provide credible and convincing evidence showing that the applicant had received comprehensive and adequate medical care in detention, at a level comparable to that which the State authorities have committed themselves to provide to persons in freedom, where drug substitution treatment was available. In coming to this conclusion, the Court bears in mind the particular circumstances of the applicant ’ s case as a long ‑ term drug addict without any realistic chance of overcoming addiction and having received substitution treatment for many years. In this context, the authorities failed to examine with particular scrutiny and with the help of independent and specialist medical expert advice, against the background of a change in the medical treatment, which therapy was to be considered as appropriate. The respondent State therefore failed to comply with its positive obligation under Article 3. 81. There has accordingly been a violation of Article 3 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 82. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 83. The applicant claimed 11,911.20 euros (EUR) in respect of pecuniary damage. He argued that as a result of the refusal of drug substitution treatment he had been unable to work in prison, where he would have earned EUR 14.18 per day on twenty working days per month during his three years and six months ’ imprisonment. He further claimed EUR 10,000 in non-pecuniary damages. He claimed, in particular, that as a result of the refusal of drug substitution treatment, he had suffered from serious neurological pain throughout his detention, craving for drugs and social isolation resulting from his poor health. 84. The Government contested that the applicant had suffered pecuniary damage by the alleged breach of Article 3. They submitted that the applicant, who had worked for the last time in the 1980s, would not have worked in prison. As for the non-pecuniary damages claimed, the Government considered that the applicant ’ s claim was excessive. They stressed that the applicant could only claim compensation for damage caused by the refusal of drug substitution treatment since June 2011. 85. As for the applicant ’ s claim in respect of pecuniary damage, the Court observes that it emerges from the documents before it that the applicant has been receiving an employment disability pension since 2001 (see paragraph 6 above). It therefore does not consider it proved that it was as a result of the refusal of drug substitution treatment that the applicant had been unable to work and draw wages in prison. It therefore rejects the applicant ’ s claim in this respect for lack of a causal link between the violation found and the pecuniary damage alleged. 86. As for the applicant ’ s claim in respect of non-pecuniary damage, the Court refers to its above finding that the domestic authorities breached Article 3 in that they did not sufficiently examine whether the applicant, for whose diseases as such the respondent State is not responsible, received adequate medical care in detention. The Court does not wish to speculate on the outcome of a proper examination of the question which was the adequate treatment for the applicant and on the effects of the potentially adequate drug substitution treatment compared to the treatment with painkillers the applicant received. The Court therefore considers that in the particular circumstances of the case, the finding of a violation of Article 3 constitutes in itself sufficient just satisfaction for any non-pecuniary damage suffered. B. Costs and expenses 87. Submitting documentary evidence, the applicant also claimed EUR 1801.05 (including value-added tax (VAT)) for the lawyers ’ costs and expenses incurred before the domestic courts and EUR 833 (including VAT) for those incurred before the Court. He explained that the lawyers ’ costs had been advanced on loan by third persons and that he was obliged to reimburse the costs to them as soon as possible following his release from detention. 88. The Government did not comment on this point. 89. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court awards the applicant the sum of EUR 1, 801.05 (including VAT) claimed for costs and expenses in the domestic proceedings, plus any tax that may be chargeable to the applicant. As for the costs and expenses for the proceedings before this Court, the Court, having regard to the sum claimed and the fact that the applicant was granted legal aid for these proceedings, does not make an award under this head. C. Default interest 90. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | While in this case the Court did not have to decide whether the applicant had indeed needed drug substitution therapy, its task was to determine whether the German authorities had adequately assessed his state of health and the appropriate treatment. In the applicant’s case, the Court held that there had been a violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention, coming to the conclusion that the authorities, despite their obligation to that effect, had failed to examine with the help of independent and specialist medical expert advice, against the background of a change in the applicant’s medical treatment, which therapy was to be considered appropriate. |
273 | (Suspected) terrorists | II. RELEVANT DOMESTIC LAW AND PRACTICE A. Introduction 25. The emergency situation in Northern Ireland in the early 1970s and the attendant level of terrorist activity form the background to the introduction of the Prevention of Terrorism (Temporary Provisions) Act 1974 ("the 1974 Act"). Between 1972 and 1983, over two thousand deaths were attributable to terrorism in Northern Ireland as compared with about one hundred in Great Britain. In the mid 1980s, the number of deaths was significantly lower than in the early 1970s but organised terrorism continued to thrive. 26. The 1974 Act came into force on 29 November 1974. The Act proscribed the IRA and made it an offence to display support in public for that organisation in Great Britain. The IRA was already a proscribed organisation in Northern Ireland. The Act also conferred special powers of arrest and detention on the police so that they could deal more effectively with the threat of terrorism (see paragraphs 30-33 below). 27. The 1974 Act was subject to renewal every six months by Parliament so that, inter alia, the need for the continued use of the special powers could be monitored. The Act was thus renewed until March 1976 when it was re-enacted with certain amendments. Under section 17 of the 1976 Act, the special powers were subject to parliamentary renewal every twelve months. The 1976 Act was in turn renewed annually until 1984, when it was re-enacted with certain amendments. The 1984 Act, which came into force in March 1984, proscribed the INLA as well as the IRA. It has been renewed every year but will expire in March 1989, when the Government intend to introduce permanent legislation. 28. The 1976 Act was reviewed by Lord Shackleton in a report published in July 1978 and subsequently by Lord Jellicoe in a report published in January 1983. Annual reports on the 1984 Act have been presented to Parliament by Sir Cyril Philips (for 1984 and 1985) and Viscount Colville (for 1986 and 1987), who also completed in 1987 a wider-scale review of the operation of the 1984 Act. 29. These reviews were commissioned by the Government and presented to Parliament to assist consideration of the continued need for the legislation. The authors of these reviews concluded in particular that in view of the problems inherent in the prevention and investigation of terrorism, the continued use of the special powers of arrest and detention was indispensable. The suggestion that decisions extending detention should be taken by the courts was rejected, notably because the information grounding those decisions was highly sensitive and could not be disclosed to the persons in detention or their legal advisers. For various reasons, the decisions fell properly within the sphere of the executive. B. Power to arrest without warrant under the 1984 and other Acts 30. The relevant provisions of section 12 of the 1984 Act, substantially the same as those of the 1974 and 1976 Acts, are as follows: "12 (1) [A] constable may arrest without warrant a person whom he has reasonable grounds for suspecting to be ... (b) a person who is or has been concerned in the commission, preparation or instigation of acts of terrorism to which this Part of this Act applies; ... (3) The acts of terrorism to which this Part of this Act applies are (a) acts of terrorism connected with the affairs of Northern Ireland; ... (4) A person arrested under this section shall not be detained in right of the arrest for more than forty-eight hours after his arrest; but the Secretary of State may, in any particular case, extend the period of forty-eight hours by a period or periods specified by him. (5) Any such further period or periods shall not exceed five days in all. (6) The following provisions (requirement to bring accused person before the court after his arrest) shall not apply to a person detained in right of the arrest ... (d) Article 131 of the Magistrates ’ Courts ( Northern Ireland ) Order 1981; ... (8) The provisions of this section are without prejudice to any power of arrest exercisable apart from this section." 31. According to the definition given in section 14 (1) of the 1984 Act, terrorism "means the use of violence for political ends, and includes any use of violence for the purpose of putting the public or any section of the public in fear". An identical definition of terrorism in the Northern Ireland (Emergency Provisions) Act 1978 was held to be "in wide terms" by the House of Lords, which rejected an interpretation of the word "terrorist" that would have been "in narrower terms than popular usage of the word ‘ terrorist ’ might connote to a police officer or a layman" (McKee v. Chief Constable for Northern Ireland [1985] 1 All England Law Reports 1 at 3-4, per Lord Roskill ). 32. Article 131 of the Magistrates ’ Courts (Northern Ireland) Order 1981, declared inapplicable by section 12(6)(d) of the 1984 Act (see paragraph 30 above), provides that where a person arrested without warrant is not within twenty-four hours released from custody, he must be brought before a Magistrates ’ Court as soon as practicable thereafter but not later than forty-eight hours after his arrest. 33. The Northern Ireland (Emergency Provisions) Act 1978 also conferred special powers of arrest without warrant. Section 11 provided that a constable could arrest without warrant any person whom he suspected of being a terrorist. Such a person could be detained for up to seventy-two hours without being brought before a court. The 1978 Act has been amended by the Northern Ireland (Emergency Provisions) Act 1987, which came into force on 15 June 1987. The powers of arrest under the 1978 Act have been replaced by a power to enter and search premises for the purpose of arresting a suspected terrorist under section 12 of the 1984 Act. C. Exercise of the power to make an arrest under section 12 (1)(b) of the 1984 Act 34. In order to make a lawful arrest under section 12(1)(b) of the 1984 Act, the arresting officer must have a reasonable suspicion that the person being arrested is or has been concerned in the commission, preparation or instigation of acts of terrorism. In addition, an arrest without warrant is subject to the applicable common law rules laid down by the House of Lords in the case of Christie v. Leachinsky [1947] Appeal Cases 573 at 587 and 600. The person being arrested must in ordinary circumstances be informed of the true ground of his arrest at the time he is taken into custody or, if special circumstances exist which excuse this, as soon thereafter as it is reasonably practicable to inform him. This does not require technical or precise language to be used provided the person being arrested knows in substance why. In the case of Ex parte Lynch [1980] Northern Ireland Reports 126 at 131, in which the arrested person sought a writ of habeas corpus, the High Court of Northern Ireland discussed section 12(1)(b). The arresting officer had told the applicant that he was arresting him under section 12 of the 1976 Act as he suspected him of being involved in terrorist activities. The High Court held that the officer had communicated the true ground of arrest and had done what was reasonable in the circumstances to convey to the applicant the nature of his suspicion, namely that the applicant was involved in terrorist activities. Accordingly, the High Court found that the lawfulness of the arrest could not be impugned in this respect. 35. The arresting officer ’ s suspicion must be reasonable in the circumstances and to decide this the court must be told something about the sources and grounds of the suspicion (per Higgins J. in Van Hout v. Chief Constable of the RUC and the Northern Ireland Office, decision of Northern Ireland High Court, 28 June 1984 ). D. Purpose of arrest and detention under section 12 of the 1984 Act 36. Under ordinary law, there is no power to arrest and detain a person merely to make enquiries about him. The questioning of a suspect on the ground of a reasonable suspicion that he has committed an arrestable offence is a legitimate cause for arrest and detention without warrant where the purpose of such questioning is to dispel or confirm such a reasonable suspicion, provided he is brought before a court as soon as practicable (R. v. Houghton [1979] 68 Criminal Appeal Reports 197 at 205 and Holgate -Mohammed v. Duke [1984] 1 All England Law Reports 1054 at 1059). On the other hand, Lord Lowry LCJ held in the case of Ex parte Lynch (loc. cit. at 131) that under the 1984 Act no specific crime need be suspected to ground a proper arrest under section 12 (1)(b). He added (ibid.): "... [I]t is further to be noted that an arrest under section 12(1) leads ... to a permitted period of detention without preferring a charge. No charge may follow at all; thus an arrest is not necessarily ... the first step in a criminal proceeding against a suspected person on a charge which was intended to be judicially investigated." E. Extension of period of detention 37. In Northern Ireland, applications for extended detention beyond the initial forty-eight-hour period are processed at senior police level in Belfast and then forwarded to the Secretary of State for Northern Ireland for approval by him or, if he is not available, a junior minister. There are no criteria in the 1984 Act (or its predecessors) governing decisions to extend the initial period of detention, though strict criteria that have been developed in practice are listed in the reports and reviews appended to the Government ’ s memorial. According to statistics quoted by the Standing Advisory Commission on Human Rights in its written submissions (see paragraph 6 above), just over 2% of police requests for extended detention in Northern Ireland between the entry into force of the 1984 Act in March 1984 and June 1987 were refused by the Secretary of State. F. Remedies 38. The principal remedies available to persons detained under the 1984 Act are an application for a writ of habeas corpus and a civil action claiming damages for false imprisonment. 1. Habeas corpus 39. Under the 1984 Act, a person may be arrested and detained in right of arrest for a total period of seven days (section 12 (4) and (5) - see paragraph 30 above). Paragraph 5 (2) of Schedule 3 to the 1984 Act provides that a person detained pursuant to an arrest under section 12 of the Act "shall be deemed to be in legal custody when he is so detained". However, the remedy of habeas corpus is not precluded by paragraph 5 (2) cited above. If the initial arrest is unlawful, so also is the detention grounded upon that arrest (per Higgins J. in the Van Hout case, loc. cit., at 18). 40. Habeas corpus is a procedure whereby a detained person may make an urgent application for release from custody on the basis that his detention is unlawful. The court hearing the application does not sit as a court of appeal to consider the merits of the detention: it is confined to a review of the lawfulness of the detention. The scope of this review is not uniform and depends on the context of the particular case and, where appropriate, the terms of the relevant statute under which the power of detention is exercised. The review will encompass compliance with the technical requirements of such a statute and may extend, inter alia, to an inquiry into the reasonableness of the suspicion grounding the arrest (ex parte Lynch, loc. cit., and Van Hout, loc. cit.). A detention that is technically legal may also be reviewed on the basis of an alleged misuse of power in that the authorities may have acted in bad faith, capriciously or for an unlawful purpose (R v. Governor of Brixton Prison, ex parte Sarno [1916] 2 King ’ s Bench Reports 742 and R v. Brixton Prison (Governor), ex parte Soblen [1962] 3 All England Law Reports 641). The burden of proof is on the respondent authorities which must justify the legality of the decision to detain, provided that the person applying for a writ of habeas corpus has firstly established a prima facie case ( Khawaja v. Secretary of State [1983] 1 All England Law Reports 765). 2. False imprisonment 41. A person claiming that he has been unlawfully arrested and detained may in addition bring an action seeking damages for false imprisonment. Where the lawfulness of the arrest depends upon reasonable cause for suspicion, it is for the defendant authority to prove the existence of such reasonable cause ( Dallison v. Caffrey [1965] 1 Queen ’ s Bench Reports 348 and Van Hout, loc. cit., at 15). In false imprisonment proceedings, the reasonableness of an arrest may be examined on the basis of the well-established principles of judicial review of the exercise of executive discretion (see Holgate -Mohammed v. Duke, loc. cit.). PROCEEDINGS BEFORE THE COMMISSION 42. The applicants applied to the Commission on 18 October 1984, 22 October 1984, 22 November 1984 and 8 February 1985 respectively (applications nos. 11209/84, 11234/84, 11266/84 and 11386/85). They claimed that their arrest and detention were not justified under Article 5 para. 1 (art. 5-1) of the Convention and that there had also been breaches of paragraphs 2, 3, 4 and 5 of that Article (art. 5-2, art. 5-3, art. 5-4, art. 5-5). They also alleged that, contrary to Article 13 (art. 13), they had no effective remedy in respect of their other complaints. The complaint under Article 5 para. 2 (art. 5-2) was subsequently withdrawn. 43. On 10 July 1986, the Commission ordered the joinder of the applications in pursuance of Rule 29 of its Rules of Procedure and, on the following day, it declared the applications admissible. In its report of 14 May 1987 (drawn up in accordance with Article 31) (art. 31), the Commission concluded that there had been a breach of paragraphs 3 and 5 of Article 5 (art. 5-3, art. 5-5) in respect of Mr Brogan and Mr Coyle (by ten votes to two for paragraph 3 (art. 5-3), and nine votes to three for paragraph 5 (art. 5-5)), but not in respect of Mr McFadden and Mr Tracey (by eight votes to four for both paragraphs (art. 5-3, art. 5-5)). It also concluded that there had been no breach of paragraphs 1 and 4 of Article 5 (art. 5-1, art. 5-4) (unanimously for paragraph 1 (art. 5-1), and by ten votes to two for paragraph 4 (art. 5-4)) and finally that no separate issue arose under Article 13 (art. 13) (unanimously). The full text of the Commission ’ s opinion and of the dissenting opinions contained in the report is reproduced as an annex to this judgment. FINAL SUBMISSIONS MADE TO THE COURT BY THE GOVERNMENT 44. At the public hearing on 25 May 1988, the Government maintained in substance the concluding submissions set out in their memorial, whereby they requested the Court to decide "(1) that the facts disclose no breach of paragraphs 1, 3, 4 or 5 of Article 5 (art. 5-1, art. 5-3, art. 5-4, art. 5-5) of the Convention; (2) that the facts disclose no breach of Article 13 (art. 13) of the Convention, alternatively that no separate issue arises under Article 13 (art. 13) of the Convention". In addition, the Government requested the Court not to entertain the complaint raised under Article 5 para. 2 (art. 5-2). AS TO THE LAW I. SCOPE OF THE CASE BEFORE THE COURT 45. In their original petitions to the Commission, the applicants alleged breach of paragraph 2 of Article 5 (art. 5-2), which provides: "Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him." However, they subsequently withdrew the claim, and the Commission noted in its admissibility decision that the applicants were no longer complaining under paragraph 2 (art. 5-2). In a letter filed in the registry on 17 May 1988, the applicants sought the leave of the Court to reinstate the complaint. In their oral pleadings both the respondent Government and the Commission objected to the applicants ’ request. 46. The scope of the Court ’ s jurisdiction is determined by the Commission ’ s decision declaring the originating application admissible (see, inter alia, the Weeks judgment of 2 March 1987, Series A no. 114, p. 21, para. 37). The Court considers that regard must be had in the instant case to the express withdrawal of the claim under paragraph 2 (art. 5-2). As a result, the Commission discontinued its examination of the admissibility of this complaint. To permit the applicants to resuscitate this complaint before the Court would be to circumvent the machinery established for the examination of petitions under the Convention. 47. Consequently, the allegation that there has been a breach of Article 5 para. 2 (art. 5-2) cannot be entertained. II. GENERAL APPROACH 48. The Government have adverted extensively to the existence of particularly difficult circumstances in Northern Ireland, notably the threat posed by organised terrorism. The Court, having taken notice of the growth of terrorism in modern society, has already recognised the need, inherent in the Convention system, for a proper balance between the defence of the institutions of democracy in the common interest and the protection of individual rights (see the Klass and Others judgment of 6 September 1978, Series A no. 28, pp. 23 and 27-28, paras. 48-49 and 59). The Government informed the Secretary General of the Council of Europe on 22 August 1984 that they were withdrawing a notice of derogation under Article 15 (art. 15) which had relied on an emergency situation in Northern Ireland (see Yearbook of the Convention, vol. 14, p. 32 [1971], vol. 16, pp. 26-28 [1973], vol. 18, p. 18 [1975], and vol. 21, p. 22 [1978], for communications giving notice of derogation, and Information Bulletin on Legal Activities within the Council of Europe and in Member States, vol. 21, p. 2 [July, 1985], for the withdrawal). The Government indicated accordingly that in their opinion "the provisions of the Convention are being fully executed". In any event, as they pointed out, the derogation did not apply to the area of law in issue in the present case. Consequently, there is no call in the present proceedings to consider whether any derogation from the United Kingdom ’ s obligations under the Convention might be permissible under Article 15 (art. 15) by reason of a terrorist campaign in Northern Ireland. Examination of the case must proceed on the basis that the Articles of the Convention in respect of which complaints have been made are fully applicable. This does not, however, preclude proper account being taken of the background circumstances of the case. In the context of Article 5 (art. 5), it is for the Court to determine the significance to be attached to those circumstances and to ascertain whether, in the instant case, the balance struck complied with the applicable provisions of that Article in the light of their particular wording and its overall object and purpose. III. ALLEGED BREACH OF ARTICLE 5 PARA. 1 (art. 5-1) 49. The applicants alleged breach of Article 5 para. 1 (art. 5-1) of the Convention, which, in so far as relevant, provides: "Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence ...; ..." There was no dispute that the applicants ’ arrest and detention were "lawful" under Northern Ireland law and, in particular, "in accordance with a procedure prescribed by law". The applicants argued that the deprivation of liberty they suffered by virtue of section 12 of the 1984 Act failed to comply with Article 5 para. 1 (c) (art. 5-1-c), on the ground that they were not arrested on suspicion of an "offence", nor was the purpose of their arrest to bring them before the competent legal authority. 50. Under the first head of argument, the applicants maintained that their arrest and detention were grounded on suspicion, not of having committed a specific offence, but rather of involvement in unspecified acts of terrorism, something which did not constitute a breach of the criminal law in Northern Ireland and could not be regarded as an "offence" under Article 5 para. 1 (c) (art. 5-1-c). The Government have not disputed that the 1984 Act did not require an arrest to be based on suspicion of a specific offence but argued that the definition of terrorism in the Act was compatible with the concept of an offence and satisfied the requirements of paragraph 1 (c) (art. 5-1-c) in this respect, as the Court ’ s case-law confirmed. In this connection, the Government pointed out that the applicants were not in fact suspected of involvement in terrorism in general, but of membership of a proscribed organisation and involvement in specific acts of terrorism, each of which constituted an offence under the law of Northern Ireland and each of which was expressly put to the applicants during the course of their interviews following their arrests. 51. Section 14 of the 1984 Act defines terrorism as "the use of violence for political ends", which includes "the use of violence for the purpose of putting the public or any section of the public in fear" (see paragraph 31 above). The same definition of acts of terrorism - as contained in the Detention of Terrorists (Northern Ireland) Order 1972 and the Northern Ireland (Emergency Provisions) Act 1973 - has already been found by the Court to be "well in keeping with the idea of an offence" (see the Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, pp. 74-75, para. 196). In addition, all of the applicants were questioned within a few hours of their arrest about their suspected involvement in specific offences and their suspected membership of proscribed organisations (see paragraphs 13, 16, 19 and 22 above). Accordingly, the arrest and subsequent detention of the applicants were based on a reasonable suspicion of commission of an offence within the meaning of Article 5 para. 1 (c) (art. 5-1-c). 52. Article 5 para. 1 (c) (art. 5-1-c) also requires that the purpose of the arrest or detention should be to bring the person concerned before the competent legal authority. The Government and the Commission have argued that such an intention was present and that if sufficient and usable evidence had been obtained during the police investigation that followed the applicants ’ arrest, they would undoubtedly have been charged and brought to trial. The applicants contested these arguments and referred to the fact that they were neither charged nor brought before a court during their detention. No charge had necessarily to follow an arrest under section 12 of the 1984 Act and the requirement under the ordinary law to bring the person before a court had been made inapplicable to detention under this Act (see paragraphs 30 and 32 above). In the applicants ’ contention, this was therefore a power of administrative detention exercised for the purpose of gathering information, as the use in practice of the special powers corroborated. 53. The Court is not required to examine the impugned legislation in abstracto, but must confine itself to the circumstances of the case before it. The fact that the applicants were neither charged nor brought before a court does not necessarily mean that the purpose of their detention was not in accordance with Article 5 para. 1 (c) (art. 5-1-c). As the Government and the Commission have stated, the existence of such a purpose must be considered independently of its achievement and sub-paragraph (c) of Article 5 para. 1 (art. 5-1-c) does not presuppose that the police should have obtained sufficient evidence to bring charges, either at the point of arrest or while the applicants were in custody. Such evidence may have been unobtainable or, in view of the nature of the suspected offences, impossible to produce in court without endangering the lives of others. There is no reason to believe that the police investigation in this case was not in good faith or that the detention of the applicants was not intended to further that investigation by way of confirming or dispelling the concrete suspicions which, as the Court has found, grounded their arrest (see paragraph 51 above). Had it been possible, the police would, it can be assumed, have laid charges and the applicants would have been brought before the competent legal authority. Their arrest and detention must therefore be taken to have been effected for the purpose specified in paragraph 1 (c) (art. 5-1-c). 54. In conclusion, there has been no violation of Article 5 para. 1 (art. 5-1). IV. ALLEGED BREACH OF ARTICLE 5 PARA. 3 (art. 5-3) 55. Under the 1984 Act, a person arrested under section 12 on reasonable suspicion of involvement in acts of terrorism may be detained by police for an initial period of forty-eight hours, and, on the authorisation of the Secretary of State for Northern Ireland, for a further period or periods of up to five days (see paragraphs 30-37 above). The applicants claimed, as a consequence of their arrest and detention under this legislation, to have been the victims of a violation of Article 5 para. 3 (art. 5-3), which provides: "Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article (art. 5-1-c) shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial." The applicants noted that a person arrested under the ordinary law of Northern Ireland must be brought before a Magistrates ’ Court within forty-eight hours (see paragraph 32 above); and that under the ordinary law in England and Wales (Police and Criminal Evidence Act 1984) the maximum period of detention permitted without charge is four days, judicial approval being required at the thirty-six hour stage. In their submission, there was no plausible reason why a seven-day detention period was necessary, marking as it did such a radical departure from ordinary law and even from the three-day period permitted under the special powers of detention embodied in the Northern Ireland (Emergency Provisions) Act 1978 (see paragraph 33 above). Nor was there any justification for not entrusting such decisions to the judiciary of Northern Ireland. 56. The Government have argued that in view of the nature and extent of the terrorist threat and the resulting problems in obtaining evidence sufficient to bring charges, the maximum statutory period of detention of seven days was an indispensable part of the effort to combat that threat, as successive parliamentary debates and reviews of the legislation had confirmed (see paragraphs 26-29 above). In particular, they drew attention to the difficulty faced by the security forces in obtaining evidence which is both admissible and usable in consequence of training in anti-interrogation techniques adopted by those involved in terrorism. Time was also needed to undertake necessary scientific examinations, to correlate information from other detainees and to liaise with other security forces. The Government claimed that the need for a power of extension of the period of detention was borne out by statistics. For instance, in 1987 extensions were granted in Northern Ireland in respect of 365 persons. Some 83 were detained in excess of five days and of this number 39 were charged with serious terrorist offences during the extended period. As regards the suggestion that extensions of detention beyond the initial forty-eight-hour period should be controlled or even authorised by a judge, the Government pointed out the difficulty, in view of the acute sensitivity of some of the information on which the suspicion was based, of producing it in court. Not only would the court have to sit in camera but neither the detained person nor his legal advisers could be present or told any of the details. This would require a fundamental and undesirable change in the law and procedure of the United Kingdom under which an individual who is deprived of his liberty is entitled to be represented by his legal advisers at any proceedings before a court relating to his detention. If entrusted with the power to grant extensions of detention, the judges would be seen to be exercising an executive rather than a judicial function. It would add nothing to the safeguards against abuse which the present arrangements are designed to achieve and could lead to unanswerable criticism of the judiciary. In all the circumstances, the Secretary of State was better placed to take such decisions and to ensure a consistent approach. Moreover, the merits of each request to extend detention were personally scrutinised by the Secretary of State or, if he was unavailable, by another Minister (see paragraph 37 above). 57. The Commission, in its report, cited its established case-law to the effect that a period of four days in cases concerning ordinary criminal offences and of five days in exceptional cases could be considered compatible with the requirement of promptness in Article 5 para. 3 (art. 5-3) (see respectively the admissibility decisions in application no. 2894/66, X v. the Netherlands, Yearbook of the Convention, vol. 9, p. 568 (1966), and in application no. 4960/71, X v. Belgium, Collection of Decisions, vol. 42, pp. 54-55 (1973)). In the Commission ’ s opinion, given the context in which the applicants were arrested and the special problems associated with the investigation of terrorist offences, a somewhat longer period of detention than in normal cases was justified. The Commission concluded that the periods of four days and six hours (Mr McFadden) and four days and eleven hours (Mr Tracey) did satisfy the requirement of promptness, whereas the periods of five days and eleven hours (Mr Brogan) and six days and sixteen and a half hours (Mr Coyle) did not. 58. The fact that a detained person is not charged or brought before a court does not in itself amount to a violation of the first part of Article 5 para. 3 (art. 5-3). No violation of Article 5 para. 3 (art. 5-3) can arise if the arrested person is released "promptly" before any judicial control of his detention would have been feasible (see the de Jong, Baljet and van den Brink judgment of 22 May 1984, Series A no. 77, p. 25, para. 52). If the arrested person is not released promptly, he is entitled to a prompt appearance before a judge or judicial officer. The assessment of "promptness" has to be made in the light of the object and purpose of Article 5 (art. 5) (see paragraph 48 above). The Court has regard to the importance of this Article (art. 5) in the Convention system: it enshrines a fundamental human right, namely the protection of the individual against arbitrary interferences by the State with his right to liberty (see the Bozano judgment of 18 December 1986, Series A no. 111, p. 23, para. 54). Judicial control of interferences by the executive with the individual ’ s right to liberty is an essential feature of the guarantee embodied in Article 5 para. 3 (art. 5-3), which is intended to minimise the risk of arbitrariness. Judicial control is implied by the rule of law, "one of the fundamental principles of a democratic society ..., which is expressly referred to in the Preamble to the Convention" (see, mutatis mutandis, the above-mentioned Klass and Others judgment, Series A no. 28, pp. 25-26, para. 55) and "from which the whole Convention draws its inspiration" (see, mutatis mutandis, the Engel and Others judgment of 8 June 1976, Series A no. 22, p. 28, para. 69). 59. The obligation expressed in English by the word "promptly" and in French by the word" aussitôt" is clearly distinguishable from the less strict requirement in the second part of paragraph 3 (art. 5-3) ("reasonable time"/" délai raisonnable ") and even from that in paragraph 4 of Article 5 (art. 5-4) ("speedily"/" à bref délai "). The term "promptly" also occurs in the English text of paragraph 2 (art. 5-2), where the French text uses the words" dans le plus court délai ". As indicated in the Ireland v. the United Kingdom judgment ( 18 January 1978, Series A no. 25, p. 76, para. 199), "promptly" in paragraph 3 (art. 5-3) may be understood as having a broader significance than" aussitôt ", which literally means immediately. Thus confronted with versions of a law-making treaty which are equally authentic but not exactly the same, the Court must interpret them in a way that reconciles them as far as possible and is most appropriate in order to realise the aim and achieve the object of the treaty (see, inter alia, the Sunday Times judgment of 26 April 1979, Series A no. 30, p. 30, para. 48, and Article 33 para. 4 of the Vienna Convention of 23 May 1969 on the Law of Treaties). The use in the French text of the word" aussitôt ", with its constraining connotation of immediacy, confirms that the degree of flexibility attaching to the notion of "promptness" is limited, even if the attendant circumstances can never be ignored for the purposes of the assessment under paragraph 3 (art. 5-3). Whereas promptness is to be assessed in each case according to its special features (see the above-mentioned de Jong, Baljet and van den Brink judgment, Series A no. 77, p. 25, para. 52), the significance to be attached to those features can never be taken to the point of impairing the very essence of the right guaranteed by Article 5 para. 3 (art. 5-3), that is to the point of effectively negativing the State ’ s obligation to ensure a prompt release or a prompt appearance before a judicial authority. 60. The instant case is exclusively concerned with the arrest and detention, by virtue of powers granted under special legislation, of persons suspected of involvement in terrorism in Northern Ireland. The requirements under the ordinary law in Northern Ireland as to bringing an accused before a court were expressly made inapplicable to such arrest and detention by section 12(6) of the 1984 Act (see paragraphs 30 and 32 above). There is no call to determine in the present judgment whether in an ordinary criminal case any given period, such as four days, in police or administrative custody would as a general rule be capable of being compatible with the first part of Article 5 para. 3 (art. 5-3). None of the applicants was in fact brought before a judge or judicial officer during his time in custody. The issue to be decided is therefore whether, having regard to the special features relied on by the Government, each applicant ’ s release can be considered as "prompt" for the purposes of Article 5 para. 3 (art. 5-3). 61. The investigation of terrorist offences undoubtedly presents the authorities with special problems, partial reference to which has already been made under Article 5 para. 1 (art. 5-1) (see paragraph 53 above). The Court takes full judicial notice of the factors adverted to by the Government in this connection. It is also true that in Northern Ireland the referral of police requests for extended detention to the Secretary of State and the individual scrutiny of each police request by a Minister do provide a form of executive control (see paragraph 37 above). In addition, the need for the continuation of the special powers has been constantly monitored by Parliament and their operation regularly reviewed by independent personalities (see paragraphs 26-29 above). The Court accepts that, subject to the existence of adequate safeguards, the context of terrorism in Northern Ireland has the effect of prolonging the period during which the authorities may, without violating Article 5 para. 3 (art. 5-3), keep a person suspected of serious terrorist offences in custody before bringing him before a judge or other judicial officer. The difficulties, alluded to by the Government, of judicial control over decisions to arrest and detain suspected terrorists may affect the manner of implementation of Article 5 para. 3 (art. 5-3), for example in calling for appropriate procedural precautions in view of the nature of the suspected offences. However, they cannot justify, under Article 5 para. 3 (art. 5-3), dispensing altogether with "prompt" judicial control. 62. As indicated above (paragraph 59), the scope for flexibility in interpreting and applying the notion of "promptness" is very limited. In the Court ’ s view, even the shortest of the four periods of detention, namely the four days and six hours spent in police custody by Mr McFadden (see paragraph 18 above), falls outside the strict constraints as to time permitted by the first part of Article 5 para. 3 (art. 5-3). To attach such importance to the special features of this case as to justify so lengthy a period of detention without appearance before a judge or other judicial officer would be an unacceptably wide interpretation of the plain meaning of the word "promptly". An interpretation to this effect would import into Article 5 para. 3 (art. 5-3) a serious weakening of a procedural guarantee to the detriment of the individual and would entail consequences impairing the very essence of the right protected by this provision. The Court thus has to conclude that none of the applicants was either brought "promptly" before a judicial authority or released "promptly" following his arrest. The undoubted fact that the arrest and detention of the applicants were inspired by the legitimate aim of protecting the community as a whole from terrorism is not on its own sufficient to ensure compliance with the specific requirements of Article 5 para. 3 (art. 5-3). There has thus been a breach of Article 5 para. 3 (art. 5-3) in respect of all four applicants. V. ALLEGED BREACH OF ARTICLE 5 PARA. 4 (art. 5-4) 63. The applicants argued that as Article 5 (art. 5) had not been incorporated into United Kingdom law, an effective review of the lawfulness of their detention, as required by paragraph 4 of Article 5 (art. 5-4), was precluded. Article 5 para. 4 (art. 5-4) provides as follows: "Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful." 64. The remedy of habeas corpus was available to the applicants in the present case, though they chose not to avail themselves of it. Such proceedings would have led to a review of the lawfulness of their arrest and detention under the terms of the 1984 Act and the applicable principles developed by case-law (see paragraphs 39-40 above). The Commission found that the requirements of Article 5 para. 4 (art. 5-4) were satisfied since the review available in Northern Ireland would have encompassed the procedural and substantive basis, under the Convention, for their detention. The Government have adopted the same reasoning. 65. According to the Court ’ s established case-law, the notion of "lawfulness" under paragraph 4 (art. 5-4) has the same meaning as in paragraph 1 (art. 5-1) (see notably the Ashingdane judgment of 28 May 1985, Series A no. 93, p. 23, para. 52); and whether an "arrest" or "detention" can be regarded as "lawful" has to be determined in the light not only of domestic law, but also of the text of the Convention, the general principles embodied therein and the aim of the restrictions permitted by Article 5 para. 1 (art. 5-1) (see notably the above-mentioned Weeks judgment, Series A no. 114, p. 28, para. 57). By virtue of paragraph 4 of Article 5 (art. 5-4), arrested or detained persons are entitled to a review bearing upon the procedural and substantive conditions which are essential for the "lawfulness", in the sense of the Convention, of their deprivation of liberty. This means that, in the instant case, the applicants should have had available to them a remedy allowing the competent court to examine not only compliance with the procedural requirements set out in section 12 of the 1984 Act but also the reasonableness of the suspicion grounding the arrest and the legitimacy of the purpose pursued by the arrest and the ensuing detention. As is shown by the relevant case-law, in particular the Van Hout and Lynch judgments (see paragraph 40 above), these conditions are met in the practice of the Northern Ireland courts in relation to the remedy of habeas corpus. Accordingly, there has been no violation of Article 5 para. 4 (art. 5-4). VI. ALLEGED BREACH OF ARTICLE 5 PARA. 5 (art. 5-5) 66. The applicants further alleged breach of Article 5 para. 5 (art. 5-5) which reads: "Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation." A claim for compensation for unlawful deprivation of liberty may be made in the United Kingdom in respect of a breach of domestic law (see paragraph 41 above on false imprisonment). As Article 5 (art. 5) is not considered part of the domestic law of the United Kingdom, no claim for compensation lies for a breach of any provision of Article 5 (art. 5) which does not at the same time constitute a breach of United Kingdom law. The Government argued, inter alia, that the aim of paragraph 5 (art. 5-5) is to ensure that the victim of an "unlawful" arrest or detention should have an enforceable right to compensation. In this regard, they have also contended that "lawful" for the purposes of the various paragraphs of Article 5 (art. 5) is to be construed as essentially referring back to domestic law and in addition as excluding any element of arbitrariness. They concluded that even in the event of a violation being found of any of the first four paragraphs, there has been no violation of paragraph 5 because the applicants ’ deprivation of liberty was lawful under Northern Ireland law and was not arbitrary. 67. The Court, like the Commission, considers that such a restrictive interpretation is incompatible with the terms of paragraph 5 (art. 5-5) which refers to arrest or detention "in contravention of the provisions of this Article". In the instant case, the applicants were arrested and detained lawfully under domestic law but in breach of paragraph 3 of Article 5 (art. 5-3). This violation could not give rise, either before or after the findings made by the European Court in the present judgment, to an enforceable claim for compensation by the victims before the domestic courts; this was not disputed by the Government. Accordingly, there has also been a breach of paragraph 5 (art. 5-5) in this case in respect of all four applicants. This finding is without prejudice to the Court ’ s competence under Article 50 (art. 50) in the matter of awarding compensation by way of just satisfaction (see the Neumeister judgment of 7 May 1974, Series A no. 17, p. 13, para. 30). VII. ALLEGED BREACH OF ARTICLE 13 (art. 13) 68. The applicants claimed before the Commission that they had no effective remedy in Northern Ireland in respect of their complaints under Article 5 (art. 5) and that consequently there was also a breach of Article 13 (art. 13) which provides as follows: "Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity." In the light of the finding that there has been no violation of Article 5 para. 4 (art. 5-4) in this case, the Court does not deem it necessary to inquire whether the less strict requirements of Article 13 (art. 13) were complied with, especially as the applicants did not pursue this complaint before the Court (see, inter alia, the Bouamar judgment of 29 February 1988, Series A no. 129, p. 25, para. 65). VIII. APPLICATION OF ARTICLE 50 (art. 50) 69. By virtue of Article 50 (art. 50), "If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party." 70. The applicants, three of whom have received legal aid before the Commission and the Court, did not submit any claim for reimbursement of costs and expenses, and this is not a matter which the Court has to examine of its own motion (see, as the most recent authority, the above-mentioned Bouamar judgment, ibid., p. 26, para. 68). 71. On the other hand, the applicants contended that "because the breaches were conscious and flagrant, exemplary damages or an enhanced award of damages ... would be appropriate". They suggested that compensation should be calculated on the basis of approximately £2000 (two thousand pounds) per hour for each hour of wrongful detention. The Government requested the Court to reserve the matter. In the circumstances of the case, the Court considers that the question of the application of Article 50 (art. 50) is not yet ready for decision in relation to the claim for compensation for prejudice suffered. It is therefore necessary to reserve the matter and to fix the further procedure, taking due account of the possibility of an agreement between the respondent State and the applicants (Rule 53 paras. 1 and 4 of the Rules of Court). | The Court held that there had been a violation of Article 5 § 3 (right to liberty and security) of the Convention, finding that the requirement of “promptness” could not be stretched to a delay of four days and six hours or more. |
607 | Wearing of religious symbols or clothing at work | II. RELEVANT DOMESTIC LAW AND PRACTICE A. Principles of secularism and neutrality in public services 21. In the case of Dogru v. France (no. 27058/05, 4 December 2008), which concerned the wearing of religious signs at school, the Court had occasion to elucidate the concept of secularism in France. It reiterated in that connection that the exercise of religious freedom in public society is directly linked to the principle of secularism. Arising out of a long French tradition, this principle has its origins in the Declaration of the Rights of Man and of the Citizen of 1789, Article 10 of which provides that “[n]o one shall be disquieted on account of his opinions, including his religious views, provided their manifestation does not disturb the public order established by law”. It also appears in the key Education Acts of 1882 and 1886, which introduced State primary education on a compulsory and secular basis. The real keystone of French secularism, however, is the Act of 9 December 1905, known as the Law on the separation between Church and State, which marked the end of a long conflict between the republicans, born of the French Revolution, and the Catholic Church. Section 1 provides: “The Republic shall ensure freedom of conscience. It shall guarantee free participation in religious worship, subject only to the restrictions laid down hereinafter in the interest of public order.” The principle of separation is affirmed in section 2 of the Act: “The Republic may not recognise, pay stipends to or subsidise any religious denomination ...” This “secular pact” entails a number of consequences both for public services and for users. It implies an acknowledgement of religious pluralism and State neutrality towards religions. The principle of secularism, the requirement of State neutrality and its corollary, equality, are enshrined in Article l of the Constitution of 4 October 1958, which reads as follows: “France shall be an indivisible, secular, democratic and social Republic. It shall ensure the equality of all citizens before the law, without distinction of origin, race or religion. It shall respect all beliefs. It shall be organised on a decentralised basis.” 22. From the 1980s, the practice of wearing religious signs at school and in hospitals developed in France, giving rise to reactions based on the principle of secularism (see paragraph 29 below). On 3 July 2003 the President of the Republic set up “a commission to study the application of the principle of secularism in the Republic”, which was instructed “to reflect in an in-depth and serene manner ... on the practical requirements which should result for everyone from compliance with the principle of secularism”. The commission ’ s report, submitted to the President of the Republic on 11 December 2003, described the threat to secularism in schools and public services. The law of 15 March 2004, regulating the wearing of signs or dress by which pupils overtly manifest a religious affiliation, was adopted as a consequence of this report (see Dogru, cited above, §§ 30-31). 23. It was also following this report that, on a referral by the Prime Minister, the Supreme Council for Integration ( Haut conseil à l ’ intégration ) submitted in January 2007 an opinion containing a “draft charter for secularism in public services”. This draft was included in the Prime Minister ’ s circular no. 5209/SG of 13 April 2007 on the Charter for secularism in public services, which reiterates the rights and duties of public-sector employees and also of persons using public services. “ Public-sector employees All public officials have a duty of strict neutrality. They must treat all persons equally and respect their freedom of conscience. The fact of a public official manifesting his or her religious convictions in the exercise of his or her duties shall amount to a breach of his or her obligations. It shall be for the managers of public services to ensure that the principle of secularism is applied in these services. Freedom of conscience shall be guaranteed to public officials. They shall be granted authorisations for absence to participate in religious festivals where this is compatible with the requirements of the normal running of the service. Users of public services All users shall be equal before the public service. The users of public services shall be entitled to express their religious convictions in so far as this is compatible with respect for the neutrality of the public service, its smooth running and the requirements of public order, security, health and hygiene. The users of public services shall refrain from any form of proselytism. The users of public services may not request the removal of a public official or of other users, or demand that the functioning of the public service or of a public facility be modified. However, the service shall attempt to take into consideration users ’ convictions, in compliance with the rules to which it is subject and its smooth functioning. Where necessary to verify identity, users must comply with the attendant obligations. Users who are accommodated on a full-time basis by a public service, particularly within medico-social establishments, hospitals or prisons, shall be entitled to respect for their beliefs and may participate in practising their religion, subject to the restrictions necessary to ensure the smooth running of the service.” 24. The Constitutional Council recently indicated that the principle of secularism is one of the rights and freedoms guaranteed by the Constitution and that it must be defined as follows. “... pursuant to the first three sentences of the first paragraph of Article 1 of the Constitution, ‘ France shall be an indivisible, secular, democratic and social Republic. It shall ensure the equality of all citizens before the law, without distinction of origin, race or religion. It shall respect all beliefs. ’ The principle of secularism is one of the rights and freedoms guaranteed by the Constitution; it follows that the State is neutral; it also follows that the Republic does not recognise any religious denomination; the principle of secularism requires, in particular, respect for all beliefs and the equality of all citizens before the law irrespective of religion, and requires that the Republic guarantee free participation in religious worship; it implies that the Republic does not pay stipends to any religious denomination;” (Decision no. 2012-297 QPC, 21 February 2013, Association for the Promotion and Expansion of Secular Thought [remuneration of pastors in the consistorial churches in the départements of Bas-Rhin, Haut-Rhin and Moselle]). 25. The civil service includes all public officials, that is, all of the members of staff employed by a public entity, assigned in principle to an administrative public service and subject to a public-law regime. The civil service and the general rules applicable to it are organised into three branches: the State civil service, the local and regional civil service, and the hospital-based civil service. Public employees ’ freedom of opinion, including religious opinion, is guaranteed by section 6 of the Law of 13 July 1983 laying down the rights and duties of civil servants. Allegiance to a religion may not be recorded in a public employee ’ s file, and it cannot be used as a discriminatory criterion against a candidate or a contractual employee seeking to obtain a permanent post; certain adjustments to working time are authorised in the name of religious freedom, provided that they are compatible with the smooth running of the service. At the same time, these employees ’ freedom of conscience must be reconciled with the requirement of religious neutrality which is a distinctive feature of the public service. Public employees have a professional duty of neutrality. In carrying out his or her duties, a public employee must ensure equal treatment of citizens, whatever their convictions or beliefs. The principle of State neutrality implies that “the authorities and the public services must [not only] provide all the guarantees of neutrality; they must also give every appearance of that neutrality, so that the user can be in no doubt of it. It follows that every employee of a public service is subject to a particularly strict obligation of neutrality” (National Advisory Commission on Human Rights, Opinion on Secularism, Official Gazette no. 0235 of 9 October 2013). The duty of neutrality incumbent on public employees has been set out in detail in the case-law (see paragraph 26 below). However, a bill on the professional ethics and rights and obligations of civil servants, currently under discussion, was adopted by the National Assembly at its first reading on 7 October 2015. This text seeks to introduce into the Law of 13 July 1983 an obligation on civil servants to exercise their functions in compliance with the principle of secularism, by refraining from manifesting their religious opinion while carrying out their duties. The Constitutional Council has also held on several occasions that neutrality is a “fundamental principle of the public service” and that the principle of equality is its corollary (Constitutional Court decisions nos. 86 ‑ 217 DC of 18 September 1986, and 96-380 DC of 23 July 1996). 26. According to the Conseil d ’ État ’ s case-law, the principle of the neutrality of public services justifies placing limitations on the manifesting of religious beliefs by employees in exercising their functions. The Conseil d ’ État took a stand on this issue in the area of education many years ago: the fact of an employee in the State education service manifesting his or her religious beliefs while carrying out his or her duties is a breach of the “duty of strict neutrality that is required of every employee working in a public service” ( Conseil d ’ État (CE), 8 December 1948, Ms Pasteau, no. 91.406; CE, 3 May 1950, Ms Jamet, no. 98.284). In its Opinion of 3 May 2000 (CE, Opinion, Ms Marteaux, no. 217017), concerning the decision by a Director of Education to dismiss a secondary-school study supervisor who wore a headscarf, it affirmed that the principles of secularism and neutrality applied to all public services and gave a detailed explanation of the prohibition on employees ’ manifesting their religious beliefs while carrying out their duties. “1. It follows from the constitutional and legislative texts that the principle of freedom of conscience and that of the secular nature of the State and the neutrality of public services apply to all those services; 2. Although employees of the State education service, like all public-sector employees, enjoy the freedom of conscience which prohibits any discrimination in access to posts and in career development based on their religion, the principle of secularism means that, in the context of the public service, they do not have the right to manifest their religious beliefs; It is not appropriate to distinguish between employees in this public service on the basis of whether or not they carry out teaching duties; 3. It follows from the above considerations that the fact of employees of the State education service manifesting their religious beliefs while carrying out their duties, in particular by wearing a sign intended to indicate their allegiance to a religion, amounts to a breach of their obligations; The consequences of this breach, especially with regard to disciplinary measures, must be assessed by the authorities with due regard to the nature and degree of ostentatiousness of the sign in question, and of the other circumstances in which the breach is found, and are subject to judicial review;” This case-law has been extended to all public services. In a thematic file entitled “The administrative courts and the expression of religious convictions” published on its Internet site in November 2014, the Conseil d ’ État indicates with regard to the ban prohibiting employees from manifesting their religious convictions while on duty, in addition to what is stated in its Opinion of 3 May 2000, as follows. “The administrative courts are generally required to examine these questions in the context of disciplinary proceedings. The lawfulness of the sanction will then depend on how the religious convictions were expressed, the hierarchical level of the employee and the duties carried out by him or her, and also the warnings which he or she may have received. The sanction must also be proportionate. The Conseil d ’ État has thus upheld the sanction imposed on a public-sector employee who displayed his professional email address on the site of a religious association (CE, 15 October 2003, M.O., no. 244428), and against another who had distributed religious documents to users during his working hours (CE, 19 February 2009, M.B., no. 311633).” 27. The requirement of neutrality is applicable to public services even if they are managed by private-law entities (CE, Sect., 31 January 1964, CAF de l ’ arrondissement de Lyon ). This aspect was also reiterated recently by the Court of Cassation in a case concerning the Seine-Saint-Denis Health Insurance Office ( Caisse primaire d ’ assurance maladie ), in respect of an employee working as a “health benefits administrator” who had been dismissed on the ground that she was wearing an Islamic headscarf in the form of a turban, in breach of the provisions of the internal rules. The Social Division of the Court of Cassation held that “the principles of neutrality and of the secular nature of the public service are applicable to the public services as a whole, including where they are provided by private-law entities” and that “the employees of health insurance offices ... are ... subject to specific constraints arising from the fact that they are engaged in a public-service mission, constraints which forbid them, inter alia, from manifesting their religious beliefs by external signs, especially through their attire;” (Cass. soc., 19 March 2013, no. 12 ‑ 11.690): “... having noted that the employee carries out her duties in a public service, and given the nature of the activity carried out by the Insurance Office, which consists, in particular, of providing sickness benefits to persons insured under the social security scheme in the Seine-Saint-Denis département, and that she works, specifically, as a ‘ sickness benefits administrator ’ in a centre which receives an average of 650 users per day, it being irrelevant whether or not the employee was in direct contact with the public, the Court of Appeal was able to conclude that the restriction imposed by the Insurance Office ’ s internal rules was necessary in order to implement the principle of secularism, in order to guarantee the neutrality of the public service to the centre ’ s users;” 28. Recently, in the course of judicial proceedings that were widely reported in the media, the Social Division of the Court of Cassation, in a judgment of 19 March 2013, initially declared illegal the dismissal of an employee in a private nursery whose internal rules called for “compliance with the principles of secularism and neutrality” on account of her refusal to remove her Islamic headscarf. Faced with the resistance of the Paris Court of Appeal, to which the case had been remitted, the plenary Court of Cassation ultimately upheld those proceedings in a judgment of 25 June 2014. On the occasion of the judgment of 19 March 2013 and of the judgment of the same date described in paragraph 27 above, the “Defender of Rights” (the French Ombudsman) asked the Conseil d ’ État to prepare a report (Report adopted by the General Assembly of the Conseil d ’ État on 19 December 2013). The Ombudsman wished to have the Conseil d ’ État ’ s opinion on various matters relating to the application of the principle of religious neutrality in the public services, in order to respond to complaints raising the question of the line between a public-service mission, participation in a public service, a mission in the general interest for which certain private structures had responsibility, and the application of the principle of neutrality and secularism. In its report, the Conseil d ’ État reiterated, inter alia, as follows. “1. Freedom of religious convictions is general. However, restrictions may be placed on their expression in certain circumstances. The principle of the secular nature of the State, which concerns the relations between the public authorities and private persons, and the principle of the neutrality of public services, a corollary of the principle of equality which governs the operation of the public services, give rise to a particular requirement of religious neutrality in these services. This requirement applies in principle to all the public services, but does not apply, as such, outside these services ... 2. Labour law respects employees ’ freedom of conscience and prohibits discrimination in any form. It may, however, authorise restrictions on the freedom to manifest religious opinions or beliefs provided that these restrictions are justified by the nature of the task to be carried out and are proportionate to the aim pursued ... 4. The requirement of religious neutrality prohibits employees of public bodies and employees of private-law entities to which the State has entrusted the management of a public service from manifesting their religious convictions while carrying out their duties. This prohibition must, however, be reconciled with the principle, arising from Article 9 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, that any infringements of freedom of religious expression must be proportionate. ...” B. Principles of neutrality in the public hospital service 29. The 2013-14 annual report by the Secularism Observatory, in the section entitled “ Overview of secularism in health establishments” stated that, following the report by the Commission on the application of the principle of secularism in the Republic (see paragraph 22 above), legislation on secularism in hospitals had been envisaged. That Commission ’ s report indicated as follows. “... Nor are hospitals exempt from such matters. They have already been confronted with certain religious prohibitions, such as the Jehovah ’ s Witnesses ’ refusal to accept transfusions. More recently, an increasing number of husbands or fathers have refused on religious grounds to have their wives or daughters cared for or delivered in childbirth by male doctors. In consequence, some women have been deprived of epidurals. Nurses have been refused on the grounds of their supposed religious affiliation. More generally, certain religious concerns on the part of patients may disrupt the functioning of a hospital: corridors are transformed into private prayer areas; parallel canteens have been organised alongside the hospital canteens to serve traditional food, in breach of the health regulations. ... Certain religious claims are now being made by public employees. Public-service employees have demanded the right to wear a kippa or a veil indicating their denominational allegiance in the workplace. Trainee doctors have recently expressed the same wish. Such conduct, which is contrary to the principle of neutrality underlying the public service, is a matter of serious concern. ...” The Secularism Observatory explained that the Ministry of Health had “in fact regulated the issue by means of a circular” (see paragraph 30 below) and that, at this stage, the existing legal arsenal was sufficient. It specified that the information obtained from health-care establishments indicated that the situation had become more peaceful and was under control. With regard to hospital staff, the most frequent problems were veil-wearing, prayers at certain times of the day and requests for adjustments to working schedules in order not to have to work on religious holidays. It noted that the information available “show[ed] that, with appropriate dialogue, these situations are resolved by a settlement that complies with the principle of public employees ’ neutrality”. 30. The circular of 6 May 1995 on the rights of hospitalised patients, which includes a Charter of Hospitalised Patients, stated that the rights of patients “are to be exercised in compliance with the freedom of others” (circular DGS/DH/95, no. 22). In addition to the guidance with regard to the users of the public hospital service described above (see paragraph 23 sbove), circular no. DHOS/G/2005/57 of 2 February 2005 on secularism in health institutions provides as follows. “... III. COMPARATIVE LAW 32. In Eweida and Others v. the United Kingdom (nos. 48420/10 and 3 others, § 47, ECHR 2013), the Court indicated that an analysis of the law and practice relating to the wearing of religious symbols at work across twenty-six Council of Europe Contracting States demonstrated that “... the majority of States the wearing of religious clothing and/or religious symbols in the workplace is unregulated. In three States, namely Ukraine, Turkey and some cantons of Switzerland, the wearing of religious clothing and/or religious symbols for civil servants and other public-sector employees is prohibited, but in principle it is allowed to employees of private companies. In five States – Belgium, Denmark, France, Germany and the Netherlands – the domestic courts have expressly admitted, at least in principle, an employer ’ s right to impose certain limitations upon the wearing of religious symbols by employees; however, there are neither laws nor regulations in any of these countries expressly allowing an employer to do so. In France and Germany, there is a strict ban on the wearing of religious symbols by civil servants and State employees, while in the three other countries the attitude is more flexible. A blanket ban on wearing religious clothing and/or symbols at work by private employees is not allowed anywhere. On the contrary, in France it is expressly prohibited by law. Under French legislation, in order to be declared lawful any such restriction must pursue a legitimate aim, relating to sanitary norms, the protection of health and morals, the credibility of the company ’ s image in the eyes of the customer, and must also pass a proportionality test.” 33. Recently, in a judgment of 27 January 2015, the German Constitutional Court held that a general prohibition on the wearing of the veil by female teachers in State schools was incompatible with the Constitution, unless it constitutes a sufficiently tangible risk to the State ’ s neutrality or a peaceful environment in schools (1 BvR 471/10, 1 BvR 1181/10). THE LAW I. ALLEGED VIOLATION OF ARTICLE 9 OF THE CONVENTION 34. The applicant alleged that the refusal to renew her contract as a social worker had been contrary to her freedom to manifest her religion as laid down in Article 9 of the Convention, which provides: “1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. 2. Freedom to manifest one ’ s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.” A. Admissibility 35. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ submissions (a) The applicant 36. The applicant submitted that on 11 December 2000 no legal provision explicitly prohibited public employees, whether civil servants or contract workers, from wearing a religious symbol in the exercise of their functions. The Conseil d ’ État ’ s Opinion of 3 May 2000 (see paragraph 26 above), relied upon by the Government, concerned only the public education services, and the circular of 2 February 2005 on secularism in health institutions (see paragraph 30 above) had not yet been published. She considered, on the contrary, that on the date in question no particular restrictions had been placed on the freedom to manifest one ’ s religion, including for public employees. In her view, the applicable law had been set out in the Conseil d ’ État ’ s Opinion of 27 November 1989 on the compatibility with the principle of secularism of wearing signs at school indicating affiliation to a religious community; in that Opinion, the Conseil d ’ État accepted that the principle of neutrality was in no way called into question by the simple fact of wearing a religious symbol, provided that its wearer could not be accused of any proselytising conduct (the Opinion is quoted in full in Dogru v. France, no. 27058/05, § 26, 4 December 2008). She concluded from this that the interference had not been prescribed by “law” for the purposes of the Convention. 37. Furthermore, the applicant considered that the impugned interference did not pursue a legitimate aim, given that no incident or problem had arisen in the course of her employment within the CASH. She concluded from the Court ’ s case-law that the State could limit the freedom to manifest a religion, for example by wearing an Islamic headscarf, if the exercise of that freedom clashed with the aim of protecting the rights and freedoms of others, public order and public safety (she referred to Leyla Şahin v. Turkey [GC], no. 44774/98, § 111, ECHR 2005 ‑ XI, and Refah Partisi (the Welfare Party) and Others v. Turkey [GC], nos. 41340/98 and 3 others, § 92, ECHR 2003 ‑ II). 38. For the remainder, the applicant indicated that she wore a simple head covering, which was anodyne in appearance and was intended to hide her hair, and that this did not, in itself, infringe the neutrality of the public service. She submitted that the fact of wearing this head covering had posed no threat to security and public order, nor any disruption within her department, since the wearing of such a head covering did not in itself amount to an act of proselytism, which presupposed conduct followed for the purpose of encouraging adherence to a belief system. According to the applicant, only the wearing of a full covering such as the burqa or the niqab ought to be perceived as a symbol of social separatism and of a refusal to integrate and be subject to a specific restriction. 39. The applicant specified that she had been able to wear her head covering until a change of personnel within the hospital ’ s management team, and that no comment had ever been made to her prior to that change, either by the hospital staff or by the patients themselves. She submitted several statements dating from December 2000, drawn up by doctors in the psychiatric unit concerned, praising her professional abilities. She considered that the Government had provided no evidence of the alleged disruption to the department ’ s work and submitted that the refusal to renew her contract had been based solely on her adherence to the Muslim religion and that it had been disproportionate in a democratic society. 40. The applicant emphasised that France was isolated in this regard. She argued that in the majority of European countries the wearing of a religious sign such as the headscarf, by pupils or State employees, was not subject to particular restrictions. With regard to the former, she submitted that the French law of 15 March 2004 (see Dogru, cited above, § 30), which was inapplicable in the present case and regulated the wearing of symbols or dress displaying religious affiliation in both primary and secondary State schools, had given rise to general incomprehension. State employees were authorised to wear a headscarf in many countries: Denmark, Sweden, Spain, Italy, Greece and the United Kingdom. The applicant expanded on the situation in the United Kingdom, in which the wearing of the Islamic headscarf in schools and in the public services was permitted, as was the wearing of religious head coverings by police officers, soldiers, motorcyclists and construction workers. Lastly, the applicant considered it useful to point out that Christian religious symbols were tolerated in public areas (crucifixes in classrooms, courts and administrative buildings) in Italy, Ireland and Austria, as were non-Christian symbols. (b) The Government 41. The Government considered that the impugned interference was “in accordance with the law”, since at the relevant time the domestic law clearly set out the principle of strict neutrality required from all public officials, and the penalties to which they were liable in the event of failure to comply with this principle. The “law” in question, within the meaning of the Court ’ s case-law, included, firstly, the 1905 Act, which had enshrined the State ’ s neutrality vis-à-vis religions, and Article 1 of the Constitution, which affirmed the principle that all citizens are equal before the law (see paragraph 21 above). It also included the Law of 13 July 1983 laying down the rights and duties of civil servants, section 29 of which provided that any misconduct committed by a civil servant in the course of or in connection with the performance of his or her duties could lead to a disciplinary sanction. In addition, both the case-law of the administrative courts over more than fifty years (see paragraph 26 above) and that of the Constitutional Council (see paragraph 25 above) reiterated the obligation of neutrality incumbent on all public servants in carrying out their functions. The Conseil d ’ État, in its Opinion of 3 May 2000, also emphasised the pre-existing general nature of the principle of neutrality, before applying it in the case before it. 42. The Government added that the applicant had voluntarily signed up to the hospital civil service and its obligations, which included the obligation on every employee to maintain neutrality in one ’ s duties, when she accepted the various contracts binding her to the CASH. She could not have been unaware of these rules, in view of the reminders about her obligations given by the Director of Human Resources on 30 November 2000 and, previously, by a manager from the hospital ’ s social and education unit in an interview held after complaints had been received from patients who had refused to meet her on account of her choice of clothing. 43. According to the Government, the prohibition on public employees ’ manifesting their religious beliefs was underpinned by the need to preserve the constitutional principle of secularism on which the French Republic was founded. As the Court had already accepted, the neutrality imposed by a State on its employees thus pursued the legitimate aim of protecting the rights and freedoms of others (they referred to Dahlab v. Switzerland (dec.), no. 42393/98, ECHR 2001-V). 44. The Government submitted that the refusal to renew the applicant ’ s contract had been necessary in a democratic society. The principle of the neutrality of public services required that employees could not wear any religious symbol, of any form, even if they did not engage in proselytism. In this connection they referred to the Court ’ s case-law with regard to civil servants and their duty of discretion and choice of attire (specifically, Vogt v. Germany, 26 September 1995, § 53, Series A no. 323, and Kurtulmuş v. Turkey (dec.), no. 65500/01, ECHR 2006 ‑ II). They emphasised the particular importance of the principle of neutrality in the circumstances of this case, where it was difficult to assess the impact that a particularly visible external sign could have on the freedom of conscience of fragile and impressionable patients. The Government added that certain patients had specifically refused to meet the applicant, and that this situation had created a general climate of tension and difficulties within the unit, requiring the applicant ’ s colleagues and some social workers to handle sensitive situations. It was in the light of this general climate that the CASH had taken the contested decision, after reminding the applicant on several occasions of the duty of neutrality, and not on account of the latter ’ s professional skills, which had always been acknowledged. The Government considered that the contested decision had complied with the requirement to weigh up the interests at stake; it had been the consequence of the applicant ’ s refusal to comply with the rules applicable to every public employee, of which she had been perfectly aware, and not, as she alleged, on account of her religious beliefs. Lastly, although the applicant ’ s wearing of the religious symbol had been accepted by the hospital until 2000, this factor did not, in the Government ’ s view, render the contested interference unnecessary. They reiterated that “the fact that an existing rule is applied less rigorously because of a specific context does not mean that there is no justification for the rule or that it is no longer binding in law” (citing Kurtulmuş, cited above). 45. Lastly, the Government submitted that the measure appeared proportionate to the aim pursued. They emphasised that, under French law, a public servant employed under contract was not automatically entitled to renewal of his or her contract. It was for the public authority to assess freely whether or not it was appropriate to renew it, and only an argument based on the employee ’ s way of working or on the interests of the department could justify a refusal to renew. In the present case, and as the domestic courts had noted, it was indeed in the interests of the department that the decision not to renew the contract had been taken, and that decision had not been manifestly disproportionate. The Government concluded that the interference had been justified as a matter of principle and proportionate to the aim pursued. 2. The Court ’ s assessment 46. Firstly, the Court observes that the CASH always used the word “head covering” (“ coiffe ”) to describe the applicant ’ s attire. The applicant submitted to the Court a photograph of herself, surrounded by her colleagues, in which she is seen wearing a head covering which conceals her hair, her neck and her ears, and her face is fully visible. This head covering, which resembles a scarf or an Islamic veil, has been described as a veil by the majority of the domestic courts which have examined the dispute, and it is this latter term that the Court will use in examining the applicant ’ s complaint. (a) Whether there was an interference 47. The Court notes that the non-renewal of the applicant ’ s contract was explained by her refusal to remove her veil which, while not described as such by the authorities, was the undisputed expression of her adherence to the Muslim faith. The Court has no reason to doubt that the wearing of this veil amounted to a “manifestation” of a sincere religious belief, protected by Article 9 of the Convention (see, mutatis mutandis, Leyla Şahin, cited above, § 78; Bayatyan v. Armenia [GC], no. 23459/03, § 111, ECHR 2011; and Eweida and Others v. the United Kingdom, nos. 48420/10 and 3 others, §§ 82, 89 and 97, ECHR 2013). As the applicant ’ s employer, it is the State which must assume responsibility for the decision not to renew her contract and to bring disciplinary proceedings against her. This measure must therefore be regarded as an interference with her right to freedom to manifest her religion or belief as guaranteed by Article 9 of the Convention (see Eweida and Others, cited above, §§ 83-84 and 97). (b) Whether the interference was justified (i) Prescribed by law 48. The expression “prescribed by law” requires, firstly, that the impugned measure should have some basis in domestic law. Secondly, it refers to the quality of the law in question, requiring that it should be accessible to the person concerned, who must moreover be able to foresee its consequences for him or her, and compatible with the rule of law. The phrase thus implies, inter alia, that domestic law must be sufficiently foreseeable in its terms to give individuals an adequate indication as to the circumstances in which and the conditions on which the authorities are entitled to resort to measures affecting their rights under the Convention. According to the Court ’ s settled case-law, the concept of “law” must be understood in its “substantive” sense, not its “formal” one. It therefore includes everything that goes to make up the written law, including enactments of lower rank than statutes, and the relevant case-law authority (see Fernández Martínez v. Spain [GC], no. 56030/07, § 117, ECHR 2014, and Dogru, cited above, § 52). 49. In the present case, the applicant emphasised that there had been nothing prohibiting the wearing of religious symbols in French legislation on 11 December 2000. She considered that the Conseil d ’ État ’ s Opinion of 3 May 2000 concerned only teaching staff, and that the Opinion of 27 November 1989 relating to the wearing of religious signs in schools represented the applicable “law” (see paragraph 36 above). The Court notes that this latter Opinion concerned only the acknowledged right of pupils to manifest their religious beliefs and that it did not cover the situation of public employees. 50. The Court observes that Article 1 of the French Constitution provides, in particular, that France is a secular Republic which ensures the equality of all citizens before the law. It notes that, in the law of the respondent State, this constitutional provision establishes the basis of the State ’ s duty of neutrality and impartiality with regard to all religious beliefs or the ways in which those beliefs are expressed, and that it has been interpreted and read in conjunction with its application by the national courts. In this connection, the Court notes that it transpires from the administrative courts ’ case-law that the neutrality of public services is an element of State secularism and that, since 1950, the Conseil d ’ État has asserted the “duty of strict neutrality which is required from all [public] employees”, particularly in the area of education (see paragraphs 26-27 above). Moreover, it notes that the Constitutional Council has emphasised that the principle of neutrality, the corollary of which is the principle of equality, is a fundamental principle of the public service (see paragraph 25 above). The Court concludes from this that the case-law of the Conseil d ’ État and the Constitutional Council amount to a sufficiently serious legal basis to enable the national authorities to restrict the applicant ’ s religious freedom. 51. Nonetheless, the Court acknowledges that the content of the obligation of neutrality as affirmed in this manner, although it was such as to alert the applicant, did not contain any specific reference or application to the profession which she exercised. It therefore accepts that, when she took up her post, the applicant could not have foreseen that the expression of her religious beliefs would be subject to restrictions. However, it considers that, from the date of publication of the Conseil d ’ État ’ s Opinion of 3 May 2000, issued more than six months before the decision not to renew her contract, the terms of which were brought to her attention by the hospital administration (see paragraph 8 above), these restrictions were set out with sufficient clarity for her to foresee that the refusal to remove her veil amounted to a fault leaving her liable to a disciplinary sanction. That Opinion, although responding to a specific question concerning the public education service, indicated that the principle of State secularism and the neutrality of public services applied to the public service as a whole. It stressed that employees must enjoy freedom of conscience, but that this freedom must be consistent, in its manner of expression, with the principle of neutrality of the relevant service, which precludes the wearing of a sign intended to indicate their adherence to a religion. In addition, it specifies that in the event of failure to comply with this obligation of neutrality the disciplinary consequences are to be assessed on a case-by-case basis, in the light of the particular circumstances (see paragraph 26 above). The Court thus notes that the Opinion of 3 May 2000 clearly lays down the basis for the requirement of religious neutrality by public employees when carrying out their duties, having regard to the principles of secularism and neutrality, and meets the requirement as to the foreseeability and accessibility of “the law” within the meaning of the Court ’ s case-law. The measure in issue was therefore prescribed by law within the meaning of Article 9 § 2. (ii) Legitimate aim 52. Unlike the parties in Leyla Şahin (cited above, § 99), the applicant and the Government do not agree on the aim of the contested restriction. The Government referred to the legitimate aim of protecting the rights and freedoms of others implied by the constitutional principle of secularism, while the applicant denied that any incident had occurred while she was carrying out her duties which could have given grounds for the interference in her right to freedom to manifest her religious beliefs. 53. Having regard to the circumstances of the case and the reasons given for not renewing the applicant ’ s contract, namely the requirement of religious neutrality in a context where users of the public service were in a vulnerable situation, the Court considers that the interference complained of pursued the legitimate aim of protecting the rights and freedoms of others (see, mutatis mutandis, Leyla Şahin, cited above, §§ 99 and 116; Kurtulmuş, cited above; and Ahmet Arslan and Others v. Turkey, no. 41135/98, § 43, 23 February 2010). In the present case the purpose was to ensure respect for all of the religious beliefs and spiritual orientations held by the patients who were using the public service and were recipients of the requirement of neutrality imposed on the applicant, by guaranteeing them strict equality. The aim was also to ensure that these users enjoyed equal treatment, without distinction on the basis of religion. In this connection, the Court reiterates that it has found that an employer ’ s policies to promote equality of opportunity or to avoid any discriminatory conduct vis-à-vis other persons pursued the legitimate aim of the protection of the rights of others (see, mutatis mutandis, the cases of Ms Ladele and Mr McFarlane, in Eweida and Others, cited above, §§ 105-06 and 109). It also reiterates that upholding the principle of secularism is an objective that is compatible with the values underlying the Convention (see Leyla Şahin, cited above, § 114). In those circumstances, the Court is of the view that the ban on the applicant manifesting her religious beliefs while carrying out her duties pursued the aim of protecting the “rights and freedoms of others” and that this restriction did not necessarily need to be additionally justified by considerations of “public safety” or “protection of public order”, which are set out in Article 9 § 2 of the Convention. (iii) Necessary in a democratic society (α) General principles 54. With regard to the general principles, the Court refers to the judgment in Leyla Şahin (cited above, §§ 104-11), in which it reiterated that while freedom of conscience and religion is one of the foundations of a “democratic society” (ibid., § 104; see also in respect of the general principles, Kokkinakis v. Greece, 25 May 1993, § 31, Series A no. 260 ‑ A), Article 9 does not, however, protect every act motivated or inspired by a religion or belief. In democratic societies, in which several religions coexist within one and the same population, it may be necessary to place restrictions on the freedom to manifest one ’ s religion or belief in order to reconcile the interests of the various groups and ensure that everyone ’ s beliefs are respected. This follows both from paragraph 2 of Article 9 and from the State ’ s positive obligations under Article 1 of the Convention to secure to everyone within its jurisdiction the rights and freedoms defined therein (see Leyla Şahin, cited above, § 106). 55. In that judgment, the Court also reiterated that it had frequently emphasised the State ’ s role as the neutral and impartial organiser of the exercise of various religions, faiths and beliefs, and stated that this role is conducive to public order, religious harmony and tolerance in a democratic society. Thus, the State ’ s duty of neutrality and impartiality is incompatible with any power on the State ’ s part to assess the legitimacy of religious beliefs or the ways in which those beliefs are expressed, and the Court considered that this duty requires the State to ensure mutual tolerance between opposing groups. Accordingly, the role of the authorities in such circumstances is not to remove the cause of tension by eliminating pluralism, but to ensure that the competing groups tolerate each other ( ibid., § 107). 56. Moreover, where questions concerning the relationship between State and religions are at stake, on which opinion in a democratic society may reasonably differ widely, the role of the national decision-making body must be given special importance. The Court emphasised that this would notably be the case when it came to regulating the wearing of religious symbols in educational institutions, especially in view of the diversity of the approaches taken by national authorities on the issue. Referring, inter alia, to the above-cited Dahlab case, the Court found that it was not possible to discern throughout Europe a uniform conception of the significance of religion in society, and that the meaning or impact of the public expression of a religious belief would differ according to time and context. It noted that rules in this sphere would consequently vary from one country to another according to national traditions and the requirements imposed by the need to protect the rights and freedoms of others and to maintain public order. It concluded that the choice of the extent and form such regulations should take must inevitably be left up to a point to the State concerned, as it would depend on the specific domestic context (see Leyla Şahin, cited above, § 109). 57. In the above-cited Kurtulmuş case, which concerned a ban on an associate professor at Istanbul University wearing the Islamic scarf, the Court emphasised that the principles set out in paragraph 51 above also apply to members of the civil service: “[a]lthough it is legitimate for a State to impose on public servants, on account of their status, a duty to refrain from any ostentation in the expression of their religious beliefs in public, public servants are individuals and, as such, qualify for the protection of Article 9 of the Convention”. It stated on that occasion, referring to the above-cited cases of Leyla Şahin and Dahlab, that “in a democratic society the State [is] entitled to place restrictions on the wearing of the Islamic headscarf if it [is] incompatible with the pursued aim of protecting the rights and freedoms of others and public order”. Applying those principles, the Court noted that “the rules on dress apply equally to all public servants, irrespective of their functions or religious beliefs. As public servants act as representatives of the State when they perform their duties, the rules require their appearance to be neutral in order to preserve the principle of secularism and its corollary, the principle of a neutral public service. The rules on dress require public servants to refrain from wearing a head covering on work premises” (see Kurtulmuş, cited above). It accepted, having regard in particular to the importance of the principle of secularism, a fundamental principle of the Turkish State, that the ban on wearing the veil was “justified by imperatives pertaining to the principle of neutrality in the public service”, and reiterated in this regard, referring to the above-cited judgment in Vogt, that it had “in the past accepted that a democratic State may be entitled to require public servants to be loyal to the constitutional principles on which it is founded”. 58. Again in the context of public education, the Court has stressed the importance of respect for the State ’ s neutrality in the context of teaching activity in public primary education, with very young children who are more easily influenced (see Dahlab, cited above). 59. In several recent cases concerning freedom of religion at work, the Court has stated that “[g]iven the importance in a democratic society of freedom of religion, the Court considers that, where an individual complains of a restriction on freedom of religion in the workplace, rather than holding that the possibility of changing job would negate any interference with the right, the better approach would be to weigh that possibility in the overall balance when considering whether or not the restriction was proportionate” (see Eweida and Others, cited above, § 83). (β) Application in the present case 60. The Court notes at the outset that, in addition to reminding the applicant of the principle of the neutrality of public services, the authorities had indicated to her the reasons for which this principle justified special application with regard to a social worker in the psychiatric unit of a hospital. The authorities had identified the problems to which her attitude had given rise within the unit in question and had attempted to persuade her to refrain from displaying her religious beliefs (see paragraph 8 above). 61. The Court observes that the national courts validated the refusal to renew the applicant ’ s contract, explicitly stating that the principle of the neutrality of public employees applied to all the public services, and not solely to education, and that it was intended to protect users from any risk of being influenced or infringement of their own freedom of conscience. In its judgment of 17 October 2002, the Administrative Court had attached importance to the fragility of these users, and held that the requirement of neutrality imposed on the applicant was all the more pressing in that she was in contact with patients who were fragile or dependent (see paragraph 11 above). 62. The Court further observes that the applicant has not been accused of acts of pressure, provocation or proselytism with regard to hospital patients or colleagues. However, the fact of wearing her veil was perceived as an ostentatious manifestation of her religion, incompatible in this case with the neutral environment required in a public service. It was thus decided not to renew her contract and to bring disciplinary proceedings against her on account of her persistence in wearing the veil while on duty. 63. The principle of secularism within the meaning of Article 1 of the French Constitution, and the resultant principle of neutrality in public services, were the arguments used against the applicant, on account of the need to ensure equal treatment for the users of the public establishment which employed her and which required, whatever her religious beliefs or her sex, that she comply with the strict duty of neutrality in carrying out her duties. According to the domestic courts, this entailed ensuring the State ’ s neutrality in order to guarantee its secular nature and thus protect the users of the service, namely the hospital ’ s patients, from any risk of influence or partiality, in the name of their right to freedom of conscience (see paragraphs 11, 16 and 25 above; see also the wording subsequently used in the circular on secularism in health institutions, paragraph 30 above). Thus, it is clear from the case file that it was indeed the requirement of protection of the rights and freedoms of others, that is, respect for the freedom of religion of everyone, and not the applicant ’ s religious beliefs, which lay behind the contested decision. 64. The Court has already accepted that States may rely on the principles of State secularism and neutrality to justify restrictions on the wearing of religious symbols by civil servants, particularly teachers working in the public sector (see paragraph 57 above). It is the latter ’ s status as public employees which distinguishes them from ordinary citizens – “who are by no means representatives of the State engaged in public service” and are not “bound, on account of any official status, by a duty of discretion in the public expression of their religious beliefs” (see Ahmet Arslan and Others, cited above, § 48) – and which imposes on them religious neutrality vis-à-vis their students. Likewise, the Court can accept in the circumstances of the present case that the State, which employs the applicant in a public hospital where she is in contact with patients, is entitled to require that she refrain from manifesting her religious beliefs when carrying out her duties, in order to guarantee equality of treatment for the individuals concerned. From this perspective, the neutrality of the public hospital service may be regarded as linked to the attitude of its staff, and requires that patients cannot harbour any doubts as to the impartiality of those treating them. 65. It thus remains for the Court to verify that the impugned interference is proportionate to that aim. With regard to the margin of appreciation left to the State in the present case, the Court notes that a majority of the Council of Europe member States do not regulate the wearing of religious clothing or symbols in the workplace, including for civil servants (see paragraph 32 above) and that only five States (out of twenty-six), one of them France, have been identified as prohibiting completely the wearing of religious signs by civil servants. However, as pointed out above (see paragraph 56), consideration must be given to the national context of State-Church relations, which evolve over time in line with changes in society. Thus, the Court notes that France has reconciled the principle of the neutrality of the public authorities with religious freedom, thus determining the balance that the State must strike between the competing private and public interests or competing Convention rights (see paragraphs 21-28 above), and that this left the respondent State a large margin of appreciation (see Leyla Şahin, cited above, § 109, and Obst v. Germany, no. 425/03, § 42, 23 September 2010). Equally, the Court has already indicated that in the hospital environment the domestic authorities must be allowed a wide margin of appreciation, as hospital managers are better placed to take decisions in their establishments than a court, particularly an international court (see Eweida and Others, cited above, § 99). 66. The main question which arises in the present case is therefore whether the State overstepped its margin of appreciation in deciding not to renew the applicant ’ s contract. On this point, the Court notes that public employees in France enjoy the right to respect for their freedom of conscience, which entails, in particular, a ban on any faith-based discrimination in access to posts or in career development. This freedom is guaranteed, in particular, by section 6 of the Law of 13 July 1983 laying down the rights and duties of civil servants, and is to be reconciled with the requirements of the proper functioning of the service (see paragraph 25 above). However, they are prohibited from manifesting their religious beliefs while carrying out their duties (see paragraphs 25-26 above). Thus, the Opinion of 3 May 2000, cited above, clearly states that public employees ’ freedom of conscience must be reconciled, albeit solely in terms of how it is given expression, with the obligation of neutrality. The Court reiterates that the reason for this restriction lies in the principle of State secularism, which, according to the Conseil d ’ État, “concerns the relations between the public authorities and private persons” (see paragraph 28 above), and the principle of the neutrality of public services, a corollary of the principle of equality which governs the functioning of these services and is intended to ensure respect for all beliefs. 67. The Court emphasises, however, that it has already approved strict implementation of the principles of secularism (now included among the rights and freedoms safeguarded by the Constitution, see paragraph 24 above) and neutrality, where this involved a fundamental principle of the State, as in France (see, mutatis mutandis, Kurtulmuş, and Dalhab, both cited above). The principles of secularism and neutrality give expression to one of the rules governing the State ’ s relations with religious bodies, a rule which implies impartiality towards all religious beliefs on the basis of respect for pluralism and diversity. The Court considers that the fact that the domestic courts attached greater weight to this principle and to the State ’ s interests than to the applicant ’ s interest in not limiting the expression of her religious beliefs does not give rise to an issue under the Convention (see paragraphs 54-55 above). 68. It observes in this connection that the obligation of neutrality applies to all public services, as reiterated on numerous occasions by the Conseil d ’ État and, recently, by the Court of Cassation (see paragraphs 26-27 above), and that the fact of employees wearing a sign of religious affiliation in the course of their duties amounts, as a matter of principle, to a breach of their obligations (see paragraphs 25-26 above). There is no indication in any text or decision by the Conseil d ’ État that the impugned obligation of neutrality could be adjusted depending on the employee and his or her duties (see paragraphs 26 and 31 above). The Court is mindful that this is a strict obligation which has its roots in the traditional relationship between State secularism and freedom of conscience as this is set out in Article 1 of the Constitution (see paragraph 21 above). Under the French model, which it is not the Court ’ s role to assess as such, the State ’ s neutrality is incumbent on the employees representing it. The Court notes, however, that it is the duty of the administrative courts to verify that the authorities do not disproportionately interfere with public employees ’ freedom of conscience when State neutrality is relied upon (see paragraphs 26 and 28 above). 69. In this context, the Court notes that the disciplinary consequences of the applicant ’ s refusal to remove her veil during her working hours were assessed by the authorities “with due regard to the nature and degree of ostentatiousness of the sign in question, and of the other circumstances” (see paragraph 26 above). In this respect, the authorities usefully pointed out that the imposed requirement of neutrality was non-negotiable in view of her contact with patients (see paragraph 13 above). Moreover, in a passage which it would have been worth expanding on, they referred to difficulties in the relevant unit (see paragraph 8 above). For their part, the courts dealing with the case accepted, in essence, the French concept of the public service and the ostentatious nature of the veil, concluding that there had not been an excessive interference with the applicant ’ s religious freedom. Thus, while the applicant ’ s wearing of a religious symbol amounted to a culpable breach of her duty of neutrality, the impact of this attire on the exercise of her duties was taken into consideration in evaluating the seriousness of that fault and in deciding not to renew her contract. The Court notes that section 29 of the Law of 13 July 1983 does not define the fault (see paragraph 41 above) and that the authorities have discretion in this area. It observes that they obtained witness statements before finding that they had sufficient information to bring disciplinary proceedings against the applicant (see paragraph 8 above). Furthermore, the Administrative Court did not criticise the sanction of non-renewal of her contract, finding that – having regard to public employees ’ duty of neutrality – it was proportionate to the fault. The Court considers that the national authorities are best placed to assess the proportionality of the sanction, which must be determined in the light of all of the circumstances in which a fault was found, in order to comply with Article 9 of the Convention. 70. The Court notes that the applicant, whose religious beliefs meant that it was important for her to manifest her religion by visibly wearing a veil, was rendering herself liable to the serious consequence of disciplinary proceedings. However, there can be no doubt that, after the publication of the Conseil d ’ État ’ s Opinion of 3 May 2000, she was aware that she was required to comply with the obligation of neutrality in her attire while at work (see paragraphs 26 and 51 above). The authorities reminded her of this obligation and asked her to reconsider wearing her veil. It was on account of her refusal to comply with this obligation that the applicant was notified that disciplinary proceedings had been opened, notwithstanding her professional abilities. She had subsequently had access to the safeguards of the disciplinary proceedings and to the remedies available before the administrative courts. Moreover, she had chosen not to take part in the recruitment test for social workers organised by the CASH, although she had been included in the list of candidates drawn up by that establishment in full cognisance of the situation (see paragraph 10 above). In those circumstances, the Court considers that the domestic authorities did not exceed their margin of appreciation in finding that it was impossible to reconcile the applicant ’ s religious beliefs and the obligation not to manifest them, and subsequently in deciding to give priority to the requirement of State neutrality and impartiality. 71. It appears from the report by the Secularism Observatory, in the section entitled “Overview of secularism in health establishments” (see paragraph 29 above), that disputes arising from the religious beliefs of persons working within hospital services are assessed on a case-by-case basis, and that the authorities attempt to reconcile the interests at stake in a bid to find friendly settlements. This desire for conciliation is confirmed by the small number of similar disputes brought before the courts, as indicated in the 2005 circular or recent studies on secularism (see paragraphs 26 and 30 above). Lastly, the Court observes that a hospital is a place where users, who for their part have equal freedom to express their religious beliefs, are also requested to assist in implementing the principle of secularism, by refraining from any form of proselytism and respecting the manner in which the service is organised and, in particular, the health and safety regulations (see paragraphs 23 and 29-30 above); in other words, the regulations of the respondent State place greater emphasis on the rights of others, equal treatment for patients and the proper functioning of the service than on the manifestation of religious beliefs, and the Court takes note of this. 72. Having regard to the foregoing, the Court considers that the impugned interference can be regarded as proportionate to the aims pursued. It follows that the interference with the applicant ’ s freedom to manifest her religion was necessary in a democratic society and that there has been no violation of Article 9 of the Convention. | The Court held that there had been no violation of Article 8 (right to respect for private and family life) of the Convention, finding that the French authorities had not exceeded their margin of appreciation in finding that there was no possibility of reconciling the applicant’s religious convictions with the obligation to refrain from manifesting them, and in deciding to give precedence to the requirement of neutrality and impartiality of the State. The Court noted in particular that wearing the veil had been considered by the authorities as an ostentatious manifestation of religion that was incompatible with the requirement of neutrality incumbent on public officials in discharging their functions. The applicant had been ordered to observe the principle of secularism within the meaning of Article 1 of the French Constitution and the requirement of neutrality deriving from that principle. According to the national courts, it had been necessary to uphold the secular character of the State and thus protect the hospital patients from any risk of influence or partiality in the name of their right to their own freedom of conscience. The necessity of protecting the rights and liberties of others – that is, respect for everyone’s religion – had formed the basis of the decision in question. |
372 | Conditions of detention and domestic remedies | II. RELEVANT DOMESTIC LAW 62. According to Article 51 §§ 2 and 3 of the Penitentiary Code, a prisoner’s correspondence may be controlled if this is required by reasons of security or if there is a risk of commission of especially serious crimes or a need to establish whether such crimes have been committed. THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 63. The applicant complained that the conditions of his detention in Koridallos Prison amounted to inhuman and degrading treatment. Before the Court his complaints focus on the conditions in the segregation unit of the Delta wing of the prison. The applicant relied on Article 3 of the Convention, which is worded as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 64. The applicant submitted that he never asked to be placed in the segregation unit. The prison administration decided to put him there on his arrival in Koridallos Prison. One week later, he was given the possibility of going to the Delta wing proper but he did not agree because he wanted to keep away from drugs. The applicant alleged that the conditions in the segregation unit had not improved significantly between his detention there and the delegates’ visit. He complained in particular that he had to spend a considerable part of each day confined to his bed in a cell with no ventilation and no window. He further complained that the prison administration did not provide inmates with sheets, pillows, toilet paper and toiletries. Although indigent prisoners like the applicant could address themselves to the prison’s welfare office, it was admitted that their needs could not always be met. The fact that he could have obtained toiletries and toilet paper from his co-detainees does not absolve the respondent State from responsibility under the Convention. The applicant submitted that he ended up sleeping on a blanket with no sheets or pillow during the hottest period of the year. He also complained that he had to use the toilet in the presence of another inmate and be present while the toilet was being used by his cell-mate. The applicant claimed that he felt humiliated and distressed and that the conditions of his detention had had adverse physical and mental effects on him. 65. The Government first submitted that the applicant asked to be detained in the segregation unit. The prison authorities wanted to satisfy his request. However, because there were no cells available, he had to share a cell with another inmate. As a result, the problem with the toilet arose. The applicant could have moved to another part of the prison at any time if he so wished. It appears that the applicant never asked for such a transfer because, in the meantime, he had developed a friendly relationship with his cell-mate, Mr Papadimitriou. The special character of their relationship is also shown by the fact that they continued sharing a cell when they were both moved to the Alpha wing two months after the applicant’s arrest. 66. Moreover, the Government disputed that the treatment complained of had attained the minimum level of severity required to fall within the scope of Article 3. They stressed that the conditions of detention complained of in no way denoted contempt or lack of respect for the applicant as a person. On the contrary, the prison authorities tried to alleviate the situation by allowing the applicant extra telephone calls. The applicant himself accepted that he was never left dirty while in the segregation unit. He could take a shower and had frequent contact with the prison psychiatrist. According to the Government, there was no evidence that the conditions of his detention had caused the applicant injury or any physical or mental suffering. 67. The Court recalls that, according to its case-law, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum level of severity is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see, among other authorities, Ireland v. the United Kingdom, judgment of 18 January 1978, Series A no. 25, p. 65, § 162). 68. Furthermore, in considering whether a treatment is “degrading” within the meaning of Article 3, the Court will have regard to whether its object is to humiliate and debase the person concerned and whether, as far as the consequences are concerned, it adversely affected his or her personality in a manner incompatible with Article 3 (see Raninen v. Finland, judgment of 16 December 1997, Reports of Judgments and Decisions, 1997 ‑ VIII, pp. 2821-22, § 55). 69. As regards the present case, the Court notes in the first place that, contrary to what the Government argue, the applicant was not placed in the segregation unit because he had so wanted himself. According to the testimony of Ms Fragathula, this was a measure decided by the prison governor and the chief warden and related to the applicant’s medical condition, more specifically to the fact that he had been suffering from withdrawal symptoms. According to the same witness, once the applicant became acquainted with the conditions of detention in the segregation unit, he asked for a transfer. He was then offered the possibility of going to the Delta wing, where drug addicts were being detained. Although Ms Fragathula would not expressly admit that there were drugs in the Delta wing, she stated that the “wing was problematic for someone who wanted to free himself from drugs”. The Court considers that this implies that there were drugs illegally circulating in the Delta wing, a cause for serious concern. In these circumstances, the Court considers that the applicant cannot be blamed for refusing to be moved from the segregation unit. The Court, therefore, considers that the applicant did not in any way consent to being detained in the segregation unit of the Delta wing. 70. Concerning the conditions of detention in the segregation unit, the Court has had regard to the Commission’s delegates’ findings and especially their findings concerning the size, lighting and ventilation of the applicant’s cell, that is, elements which would not have changed between the time of the applicant’s detention there and the delegates’ visit. As regards ventilation, the Court notes that the delegates’ findings do not correspond fully with those of the CPT, which visited Koridallos Prison in 1993 and submitted its report in 1994. However, the CPT’s inspection took place in March, whereas the delegates went to Koridallos Prison in June, a period of the year when the climatic conditions are closer to those of the period of which the applicant complains. Furthermore, the Court takes into account the fact that the delegates investigated the applicant’s complaints in depth, giving special attention, during their inspection, to the conditions in the very place where the applicant had been detained. In these circumstances, the Court considers that the findings of the Commission’s delegates are reliable. 71. The Court notes that the applicant accepts that the cell door was open during the day, when he could circulate freely in the segregation unit. Although the unit and its exercise yard were small, the limited possibility of movement enjoyed by the applicant must have given him some form of relief. 72. Nevertheless, the Court recalls that the applicant had to spend at least part of the evening and the entire night in his cell. Although the cell was designed for one person, the applicant had to share it with another inmate. This is one aspect in which the applicant’s situation differed from the situation reviewed by the CPT in its 1994 report. Sharing the cell with another inmate meant that, for the best part of the period when the cell door was locked, the applicant was confined to his bed. Moreover, there was no ventilation in the cell, there being no opening other than a peephole in the door. The Court also notes that, during their visit to Koridallos, the delegates found that the cells in the segregation unit were exceedingly hot, although it was only June, a month when temperatures do not normally reach their peak in Greece. It is true that the delegates’ visit took place in the afternoon, when the applicant would not normally be locked up in his cell. However, the Court recalls that the applicant was placed in the segregation unit during a period of the year when temperatures have the tendency to rise considerably in Greece, even in the evening and often at night. This was confirmed by Mr Papadimitriou, an inmate who shared the cell with the applicant and who testified that the latter was significantly physically affected by the heat and the lack of ventilation in the cell. 73. The Court also recalls that in the evening and at night when the cell door was locked the applicant had to use the Asian-type toilet in his cell. The toilet was not separated from the rest of the cell by a screen and the applicant was not the cell’s only occupant. 74. In the light of the foregoing, the Court considers that in the present case there is no evidence that there was a positive intention of humiliating or debasing the applicant. However, the Court notes that, although the question whether the purpose of the treatment was to humiliate or debase the victim is a factor to be taken into account, the absence of any such purpose cannot conclusively rule out a finding of violation of Article 3 (see V. v. the United Kingdom [GC], no. 24888/94, § 71, ECHR 1999-IX). 75. Indeed, in the present case, the fact remains that the competent authorities took no steps to improve the objectively unacceptable conditions of the applicant’s detention. In the Court’s view, this omission denotes lack of respect for the applicant. The Court takes into account, in particular, that, for at least two months, the applicant had to spend a considerable part of each 24-hour period practically confined to his bed in a cell with no ventilation and no window, which would at times become unbearably hot. He also had to use the toilet in the presence of another inmate and be present while the toilet was being used by his cell-mate. The Court is not convinced by the Government’s allegation that these conditions did not affect the applicant in a manner incompatible with Article 3. On the contrary, the Court is of the opinion that the prison conditions complained of diminished the applicant’s human dignity and aroused in him feelings of anguish and inferiority capable of humiliating and debasing him and possibly breaking his physical or moral resistance. In sum, the Court considers that the conditions of the applicant’s detention in the segregation unit of the Delta wing of Koridallos Prison amounted to degrading treatment within the meaning of Article 3 of the Convention. There has thus been a breach of this provision. II. ALLEGED VIOLATION OF ARTICLE 6 § 2 OF THE CONVENTION 76. The applicant complained that, despite the fact that he was a remand prisoner, he was subjected to the same regime as convicts. He argued that the failure of the Koridallos Prison authorities to provide for a special regime for remand prisoners amounts to a violation of the presumption of innocence. He relied on Article 6 § 2 of the Convention, which reads as follows: “Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.” 77. The Government submitted that Article 6 § 2 could not be interpreted in this manner. 78. The Court recalls that the Convention contains no Article providing for separate treatment for convicted and accused persons in prisons. It cannot be said that Article 6 § 2 has been violated on the grounds adduced by the applicant. There has accordingly been no violation of Article 6 § 2 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 79. The applicant complained that letters sent to him by the Commission’s Secretariat were opened by the Koridallos Prison administration and not always in his presence. He relied on Article 8 of the Convention, which provides as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 80. The Government submitted that letters addressed to prisoners are always opened in front of them because this is required by law and is necessary to prevent criminal offences, such as the smuggling of drugs into the prison. Letters addressed to prisoners by the Convention organs cannot be exempted because the Commission’s or the Court’s envelopes can be forged by criminals. 81. The Court considers that it has not been established that letters from the Commission to the applicant were opened in his absence. However, the Government accept that letters from the Convention organs are always opened in front of the prisoner concerned. It follows that the letters that the Commission addressed to the applicant were also opened. There was, therefore, an interference with the applicant’s right to respect for his correspondence under Article 8 of the Convention which can be justified only if the conditions of the second paragraph of the provision are met. 82. In particular, if it is not to contravene Article 8 § 2, such interference must be “in accordance with the law”, pursue a legitimate aim and be necessary in a democratic society in order to achieve that aim (see Silver and Others v. the United Kingdom, judgment of 25 March 1983, Series A no. 61, p. 32 § 84, and Petra v. Romania, judgment of 23 September 1998, Reports 1998-VII, p. 2853, § 36). 83. The interference had a legal basis, namely Article 51 §§ 2 and 3 of the Penitentiary Code, and the Court is satisfied that it pursued the legitimate aim of “the prevention of disorder or crime”. 84. As regards the necessity of the interference, the Court finds no compelling reasons for the monitoring of the relevant correspondence, whose confidentiality it was important to respect (see Campbell v. the United Kingdom, judgment of 25 March 1992, Series A no. 233, p. 22, § 62). Although the Government have alluded in general to the possibility of the Commission’s envelopes being forged in order to smuggle prohibited material into the prison, the Court considers, as the Convention organs have done on previous occasions, that this risk is so negligible that it must be discounted (ibid.). Accordingly, the interference complained of was not necessary in a democratic society within the meaning of Article 8 § 2. There has consequently been a violation of Article 8 of the Convention. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 85. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 86. The applicant claimed 42,000,000 drachmas (GRD) in respect of non-pecuniary damage. He maintained that the violations of the Convention in his case, which had entailed serious intrusion into his physical and mental integrity, had caused him to suffer a substantial degree of anxiety and distress. 87. The Government considered that the finding of a violation of the Convention would constitute adequate satisfaction for any non-pecuniary damage sustained by the applicant. In any event, the Government considered that the amount claimed was too high and that a sum of GRD 2,000,000 would be reasonable. 88. The Court, bearing in mind its findings above with regard to the applicant’s complaints, considers that he suffered some non-pecuniary damage as a result of his detention which cannot be compensated solely by the finding of a violation. Deciding on an equitable basis, the Court awards the applicant GRD 5,000,000 under this head. B. Default interest 89. According to the information available to the Court, the statutory rate of interest applicable in Greece at the date of adoption of the present judgment is 6% per annum. | The European Court of Human Rights held that there had been a violation of Article 3 (prohibition of inhuman or degrading treatment) of the European Convention on Human Rights, finding that the conditions of the applicant’s detention in the segregation unit of the Delta wing of the Koridallos prison had amounted to degrading treatment. It took particularly into account that, for at least two months, the applicant had to spend a considerable part of each 24-hour period practically confined to his bed in a cell, with no ventilation and no window, which would at times become unbearably hot. He also had to use the toilet in the presence of another inmate and be present while the toilet was being used by his cellmate. The Court was of the opinion that the prison conditions complained of had diminished the applicant’s human dignity and given rise in him to feelings of anguish and inferiority capable of humiliating and debasing him and possibly breaking his physical or moral resistance. |
698 | Online hate speech | RELEVANT LEGAL FRAMEWORK DOMESTIC LAW Law of 29 July 1881 Law of 29 July 1881 Law of 29 July 1881 25. The relevant provisions in force at the material time read as follows: Section 23 “Anyone who, by uttering speeches, cries or threats in a public place or assembly, or by means of a written or printed text, drawing, engraving, painting, emblem, image, or any other written, spoken or pictorial item sold or distributed, offered for sale or exhibited in a public place or assembly, or by means of a placard or notice exhibited in a place where it can be seen by the public, or by any electronic means of communication to the public, has directly incited the perpetrator or perpetrators to commit a serious crime or major offence ( crime or délit ), and if the incitement has been acted upon, shall be punished as an accessory to the said offence. This provision shall also be applicable where the incitement has been followed only by an attempt to commit a serious crime ( crime ) under Article 2 of the Criminal Code.” Section 24 (paragraphs 8 and 10-12) “Anyone who, by one of the means referred to in section 23, has incited discrimination, hatred or violence against a person or group on account of their origin or because they belong, or do not belong, to a given ethnicity, nation, race or religion, shall be liable to a one-year prison term and a fine of 45,000 euros, or only one of those two sanctions. ... Where a conviction is secured for one of the offences provided for in the two preceding paragraphs, the court may further order: 1 o The deprivation of the rights listed in paragraphs 2 o and 3 o of Article 131-26 of the Criminal Code for a maximum of five years, save where the offender’s liability is engaged under section 42 and the first paragraph of section 43 hereof, or under the first three paragraphs of section 93-3 of Law no. 82-652 of 29 July 1982 on audiovisual communication. 2 o The display or dissemination of the decision pursuant to Article 131-35 of the Criminal Code. ...” Section 65-3 “For the offences ( délits ) provided for in the sixth and eighth paragraphs of section 24, section 24 bis, the second paragraph of section 32 and the third paragraph of section 33, the limitation period prescribed by section 65 shall be one year.” Section 93-3 of Law no. 82-652 of 29 July 1982 on audiovisual communication 26. The relevant provisions as in force at the material time read as follows: “Where one of the offences provided for in chapter IV of the Freedom of the Press Act of 29 July 1881 is committed by an electronic means of public communication, the publication director or, in the situation provided for in the second paragraph of section 93-2 hereof, the codirector, shall be prosecuted as the principal, when the content of the impugned message has been fixed prior to its communication to the public. In the absence thereof, the author, and failing which the producer, shall be prosecuted as principal. Where charges are brought against the publication director or codirector, the author shall be prosecuted as an accessory. Any person to whom Article 121-7 of the Criminal Code is applicable may also be prosecuted as an accessory. Where the offence stems from the content of a message addressed by an Internet user to an electronic public communication service and made available by that service to the public in a forum of personal contributions identified as such, the publication director or codirector may not be held criminally liable as principal if it is established that he or she had no effective knowledge of the message before it was posted on line or if, upon becoming aware thereof, he or she acted promptly to ensure the deletion of the said message. ” 27. In a decision of 16 September 2011 (no. 2011-164 QPC), the Constitutional Council declared section 93-3 of Law no. 82-652 of 29 July 1982 on audiovisual communication to be compliant with the Constitution, subject to the following consideration: “7. Consequently, taking into account, on the one hand, the specific liability applicable to the publication director under the first and last paragraphs of section 93-3 and, on the other, the characteristics of the Internet which, as the relevant rules and techniques now stand, allow the author of a message disseminated on the Internet to preserve his or her anonymity, the provisions under review could not, without establishing an irrebuttable presumption of criminal liability in breach of the aforementioned constitutional requirements, be interpreted as allowing the creator or administrator of an online public communication site, enabling messages from Internet users to be accessed by the public, to be held criminally liable as a producer solely on account of the content of a message of which he or she was unaware before it was posted online. Subject to that reservation, the provisions under review are not contrary to Article 9 of the Declaration of 1789.” 28. Subsequently, in a judgment of 30 October 2012 (Appeal no. 10-88825), the Criminal Division of the Court of Cassation ruled as follows: “It can be inferred [from section 93-3 of the Law of 29 July 1982] that the criminal liability of the producer of an online public communication site, enabling messages from Internet users to be accessed by the public, will only be engaged, on account of the content of such messages, where it is established that he or she had been aware thereof before they were posted online or that, if that were not the case, he or she refrained from acting promptly to remove them upon becoming aware thereof. ... However, in so deciding, without ascertaining whether, in his capacity as producer, Mr X ... had been aware of the content of the offending message before it was posted online or whether, if that were not the case, he had refrained from acting promptly to withdraw it as soon as he became aware thereof, the Court of Appeal did not correctly apply section 93-3 of the amended Law of 29 July 1982 on audiovisual communication in the light of the above-mentioned reservation of the Constitutional Council. ...” 29. The Court of Cassation had also developed case-law on the concept of “producer”, adopting this characterisation for a person who had taken the initiative of creating an electronic communication service for the exchange of opinions on pre-defined topics ( Court of Cassation, Criminal Division, 8 December 1998, Bull. crim., no. 335; Court of Cassation, Criminal Division, 16 February 2010, Bull. crim., no. 30 – concerning the liability, as producer, of the managing director of a company operating a website, on account of the dissemination of a number of texts on a discussion forum; and Court of Cassation, Criminal Division, 16 February 2010, Bull. crim., no. 31 – concerning the liability, as producer, of the chair of an association for the dissemination of contentious statements on the latter’s blog). This definition of “producer” was accepted by the Constitutional Council, which, in its decision of 16 September 2011 (see paragraph 27 above), observed: “It follows from these provisions, as interpreted by the Court of Cassation in its judgments of 16 February 2010 ..., that a person who has taken the initiative of creating an online communication service for the exchange of opinions on pre-defined topics may be prosecuted in his or her capacity as producer.” 30. Furthermore, the Court of Cassation has ruled that the use of the Internet is covered by the phrase “any electronic means of public communication” (Court of Cassation, Criminal Division, 6 May 2003, Bull. crim., no. 94; and Court of Cassation, Criminal Division, 10 May 2005, Bull. crim., no. 144), while developing case-law on the concept of “publicity”, which is established when the addressees are not linked to each other by a community of interest and the offending remarks are disseminated via a website accessible to the public (Court of Cassation, Criminal Division, 26 February 2008, Appeal no. 07-87.846, and 26 March 2008, Appeal no. 07-83.672). The Court of Cassation has thus held that insults published on the “wall” of a defendant’s Facebook account, which were accessible only to individuals approved by the defendant, constituted private and not public insults (Court of Cassation, Criminal Division, 10 April 2013, Appeal no. 11-19.530). 31. As regards the offence ( délit ) of incitement to hatred or violence, the Court of Cassation has consistently held that the comments in question must be such as to arouse immediate reactions from the reader, against the persons targeted, of rejection or even hatred and violence (Court of Cassation, Criminal Division, 21 May 1996, Bull. crim., no. 210), or that the judges must find that both by its meaning and its scope, the text at issue may either arouse a feeling of hostility or rejection, or incite the public to hatred or violence against a specific person or group (Court of Cassation, Criminal Division, 16 July 1992, Bull crim. no. 273; Court of Cassation, Criminal Division, 14 May 2002, Appeal no. 01-85.482; Court of Cassation, Criminal Division, 30 May 2007, Appeal no. 06-84.328; Court of Cassation, Criminal Division, 29 January 2008, Appeal no. 07-83.695, and Court of Cassation, Criminal Division, 3 February 2009, Appeal nos. 06-83.063 and 08-82.402). Comments may also give rise to sanctions if their meaning is implicit (Court of Cassation, Criminal Division, 16 July 1992, Bull. crim., no. 273). 32. Furthermore, Law no. 2020-766 of 24 June 2020, on the combat against hateful content on the Internet (and which was the subject of Constitutional Council decision no. 2020-801 DC of 18 June 2020, declaring numerous provisions to be unconstitutional) created an online hate “Observatory”. Its mission is to monitor and analyse developments in this area, by involving operators (in particular of social networks such as Facebook), associations, authorities and researchers concerned with the combat against and prevention of such acts. Working groups have been tasked with reflecting on the concept of hateful content, improving knowledge of this phenomenon, analysing the mechanisms of dissemination and the means of combating it and, lastly, ensuring prevention, education and support for Internet users. 33. The said Law also led to the creation of a national centre for combating online hate, within the Paris tribunal judiciaire, which started operating in January 2021. It exercises jurisdiction based on the complexity of the procedure or the extent of the breach of public order, which may stem in particular from the high media profile or particular sensitivity of a given case (Circular of 24 November 2020 on the combat against online hate – CRIM 2020 23 E1 24.11.2020). INTERNATIONAL INSTRUMENTS Internet communication Internet communication Internet communication 34. The relevant texts adopted by the Council of Europe’s Committee of Ministers and the United Nations can be found in paragraphs 44 to 49 of the judgment in Delfi AS v. Estonia ([GC], no. 64569/09, ECHR 2015). Hate speechUnited Nations United Nations United Nations (a) Human Rights Council 35. In his report submitted in accordance with Human Rights Council resolution 16/4 (A/67/357, 7 September 2012), the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Mr Frank La Rue, made the following observations: “46. While some of the above concepts may overlap, the Special Rapporteur considers the following elements to be essential when determining whether an expression constitutes incitement to hatred: real and imminent danger of violence resulting from the expression; intent of the speaker to incite discrimination, hostility or violence; and careful consideration by the judiciary of the context in which hatred was expressed, given that international law prohibits some forms of speech for their consequences, and not for their content as such, because what is deeply offensive in one community may not be so in another. Accordingly, any contextual assessment must include consideration of various factors, including the existence of patterns of tension between religious or racial communities, discrimination against the targeted group, the tone and content of the speech, the person inciting hatred and the means of disseminating the expression of hate. For example, a statement released by an individual to a small and restricted group of Facebook users does not carry the same weight as a statement published on a mainstream website. Similarly, artistic expression should be considered with reference to its artistic value and context, given that art may be used to provoke strong feelings without the intention of inciting violence, discrimination or hostility. 47. Moreover, while States are required to prohibit by law any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence under article 20 (2) of the Covenant, there is no requirement to criminalize such expression. The Special Rapporteur underscores that only serious and extreme instances of incitement to hatred, which would cross the seven-part threshold, should be criminalized. 48. In other cases, the Special Rapporteur is of the view that States should adopt civil laws, with the application of diverse remedies, including procedural remedies (for example, access to justice and ensuring effectiveness of domestic institutions) and substantive remedies (for example, reparations that are adequate, prompt and proportionate to the gravity of the expression, which may include restoring reputation, preventing recurrence and providing financial compensation). 49. In addition, while some types of expression may raise concerns in terms of tolerance, civility and respect for others, there are instances in which neither criminal nor civil sanctions are justified. The Special Rapporteur wishes to reiterate that the right to freedom of expression includes forms of expression that are offensive, disturbing and shocking. Indeed, since not all types of inflammatory, hateful or offensive speech amount to incitement, the two should not be conflated.” (b) Committee on the Elimination of Racial Discrimination 36. General Recommendation no. 35 of 26 September 2013, on combating racist hate speech, provides guidelines on the requirements of the International Convention on the Elimination of All Forms of Racial Discrimination, the aim being to help the States parties to fulfil their obligations. It is indicated in particular as follows: “6. Racist hate speech addressed in Committee practice has included all the specific speech forms referred to in article 4 directed against groups recognized in article 1 of the Convention – which forbids discrimination on grounds of race, colour, descent, or national or ethnic origin – such as indigenous peoples, descent-based groups, and immigrants or non-citizens, including migrant domestic workers, refugees and asylum seekers, as well as speech directed against women members of these and other vulnerable groups. In the light of the principle of intersectionality, and bearing in mind that ‘criticism of religious leaders or commentary on religious doctrine or tenets of faith’ should not be prohibited or punished, the Committee’s attention has also been engaged by hate speech targeting persons belonging to certain ethnic groups who profess or practice a religion different from the majority, including expressions of Islamophobia, anti-Semitism and other similar manifestations of hatred against ethno-religious groups, as well as extreme manifestations of hatred such as incitement to genocide and to terrorism. Stereotyping and stigmatization of members of protected groups has also been the subject of expressions of concern and recommendations adopted by the Committee. 7. Racist hate speech can take many forms and is not confined to explicitly racial remarks. As is the case with discrimination under article 1, speech attacking particular racial or ethnic groups may employ indirect language in order to disguise its targets and objectives. In line with their obligations under the Convention, States parties should give due attention to all manifestations of racist hate speech and take effective measures to combat them. The principles articulated in the present recommendation apply to racist hate speech, whether emanating from individuals or groups, in whatever forms it manifests itself, orally or in print, or disseminated through electronic media, including the Internet and social networking sites, as well as non-verbal forms of expression such as the display of racist symbols, images and behaviour at public gatherings, including sporting events. ... 15. ... On the qualification of dissemination and incitement as offences punishable by law, the Committee considers that the following contextual factors should be taken into account: The content and form of speech : whether the speech is provocative and direct, in what form it is constructed and disseminated, and the style in which it is delivered. The economic, social and political climate prevalent at the time the speech was made and disseminated, including the existence of patterns of discrimination against ethnic and other groups, including indigenous peoples. Discourses which in one context are innocuous or neutral may take on a dangerous significance in another: in its indicators on genocide the Committee emphasized the relevance of locality in appraising the meaning and potential effects of racist hate speech. The position or status of the speaker in society and the audience to which the speech is directed. The Committee consistently draws attention to the role of politicians and other public opinion-formers in contributing to the creation of a negative climate towards groups protected by the Convention, and has encouraged such persons and bodies to adopt positive approaches directed to the promotion of intercultural understanding and harmony. The Committee is aware of the special importance of freedom of speech in political matters and also that its exercise carries with it special duties and responsibilities. The reach of the speech, including the nature of the audience and the means of transmission: whether the speech was disseminated through mainstream media or the Internet, and the frequency and extent of the communication, in particular when repetition suggests the existence of a deliberate strategy to engender hostility towards ethnic and racial groups. The objectives of the speech: speech protecting or defending the human rights of individuals and groups should not be subject to criminal or other sanctions. ... 39. Informed, ethical and objective media, including social media and the Internet, have an essential role in promoting responsibility in the dissemination of ideas and opinions. In addition to putting in place appropriate legislation for the media in line with international standards, States parties should encourage the public and private media to adopt codes of professional ethics and press codes that incorporate respect for the principles of the Convention and other fundamental human rights standards.” The Council of Europe (a) The Committee of Ministers 37. The Annex to Recommendation no. R (97) 20 of the Council of Europe’s Committee of Ministers on “hate speech”, adopted on 30 October 1997, provides in particular as follows: “Scope The principles set out hereafter apply to hate speech, in particular hate speech disseminated through the media. For the purposes of the application of these principles, the term ‘hate speech’ shall be understood as covering all forms of expression which spread, incite, promote or justify racial hatred, xenophobia, anti-Semitism or other forms of hatred based on intolerance, including: intolerance expressed by aggressive nationalism and ethnocentrism, discrimination and hostility against minorities, migrants and people of immigrant origin. ... Principle 1 The governments of the member states, public authorities and public institutions at the national, regional and local levels, as well as officials, have a special responsibility to refrain from statements, in particular to the media, which may reasonably be understood as hate speech, or as speech likely to produce the effect of legitimising, spreading or promoting racial hatred, xenophobia, anti-Semitism or other forms of discrimination or hatred based on intolerance. Such statements should be prohibited and publicly disavowed whenever they occur. ... Principle 4 National law and practice should allow the courts to bear in mind that specific instances of hate speech may be so insulting to individuals or groups as not to enjoy the level of protection afforded by Article 10 of the European Convention on Human Rights to other forms of expression. This is the case where hate speech is aimed at the destruction of the rights and freedoms laid down in the Convention or at their limitation to a greater extent than provided therein. Principle 5 National law and practice should allow the competent prosecution authorities to give special attention, as far as their discretion permits, to cases involving hate speech. In this regard, these authorities should, in particular, give careful consideration to the suspect’s right to freedom of expression given that the imposition of criminal sanctions generally constitutes a serious interference with that freedom. The competent courts should, when imposing criminal sanctions on persons convicted of hate speech offences, ensure strict respect for the principle of proportionality. Principle 6 National law and practice in the area of hate speech should take due account of the role of the media in communicating information and ideas which expose, analyse and explain specific instances of hate speech and the underlying phenomenon in general as well as the right of the public to receive such information and ideas. To this end, national law and practice should distinguish clearly between the responsibility of the author of expressions of hate speech, on the one hand, and any responsibility of the media and media professionals contributing to their dissemination as part of their mission to communicate information and ideas on matters of public interest on the other hand.” (b) European Commission against Racism and Intolerance (ECRI) 38. The relevant passages of ECRI’s General Policy Recommendation no 15 on combating hate speech, adopted on 8 December 2015 reads as follows: “ The European Commission against Racism and Intolerance (ECRI): ... Taking note of the differing ways in which hate speech has been defined and is understood at the national and international level as well as of the different forms that it can take; Considering that hate speech is to be understood for the purpose of the present General Policy Recommendation as the advocacy, promotion or incitement, in any form, of the denigration, hatred or vilification of a person or group of persons, as well as any harassment, insult, negative stereotyping, stigmatization or threat in respect of such a person or group of persons and the justification of all the preceding types of expression, on the ground of ‘race’, colour, descent, national or ethnic origin, age, disability, language, religion or belief, sex, gender, gender identity, sexual orientation and other personal characteristics or status; ... Recognising also that forms of expression that offend, shock or disturb will not on that account alone amount to hate speech and that action against the use of hate speech should serve to protect individuals and groups of persons rather than particular beliefs, ideologies or religions; Recognising that the use of hate speech can reflect or promote the unjustified assumption that the user is in some way superior to a person or a group of persons that is or are targeted by it; Recognising that the use of hate speech may be intended to incite, or reasonably expected to have the effect of inciting others to commit, acts of violence, intimidation, hostility or discrimination against those who are targeted by it and that this is an especially serious form of such speech; ... Recognising that the use of hate speech appears to be increasing, especially through electronic forms of communication which magnify its impact, but that its exact extent remains unclear because of the lack of systematic reporting and collection of data on its occurrence and that this needs to be remedied, particularly through the provision of appropriate support for those targeted or affected by it; Aware that ignorance and insufficient media literacy, as well as alienation, discrimination, indoctrination and marginalisation, can be exploited to encourage the use of hate speech without the real character and consequences of such speech being fully appreciated; Stressing the importance of education in undermining the misconceptions and misinformation that form the basis of hate speech and of the need for such education to be directed in particular to the young; Recognising that an important means of tackling hate speech is through confronting and condemning it directly by counter-speech that clearly shows its destructive and unacceptable character; Recognising that politicians, religious and community leaders and others in public life have a particularly important responsibility in this regard because of their capacity to exercise influence over a wide audience; Conscious of the particular contribution that all forms of media, whether online or offline, can play both in disseminating and combating hate speech; Recommends that the governments of member States: 10. take appropriate and effective action against the use, in a public context, of hate speech which is intended or can reasonably be expected to incite acts of violence, intimidation, hostility or discrimination against those targeted by it through the use of the criminal law provided that no other, less restrictive, measure would be effective and the right to freedom of expression and opinion is respected, and accordingly: a. ensure that the offences are clearly defined and take due account of the need for a criminal sanction to be applied; b. ensure that the scope of these offences is defined in a manner that permits their application to keep pace with technological developments; c. ensure that prosecutions for these offences are brought on a nondiscriminatory basis and are not used in order to suppress criticism of official policies, political opposition or religious beliefs; d. ensure the effective participation of those targeted by hate speech in the relevant proceedings; e. provide penalties for these offences that take account both of the serious consequences of hate speech and the need for a proportionate response; f. monitor the effectiveness of the investigation of complaints and the prosecution of offenders with a view to enhancing both of these; ...” 39. In its “Explanatory Memorandum” ECRI provides the following clarifications: “... 14. The Recommendation further recognises that, in some instances, a particular feature of the use of hate speech is that it may be intended to incite, or can reasonably be expected to have the effect of inciting, others to commit acts of violence, intimidation, hostility or discrimination against those targeted by it. As the definition above makes clear, the element of incitement entails there being either a clear intention to bring about the commission of acts of violence, intimidation, hostility or discrimination or an imminent risk of such acts occurring as a consequence of the particular hate speech used. 15. Intent to incite might be established where there is an unambiguous call by the person using hate speech for others to commit the relevant acts or it might be inferred from the strength of the language used and other relevant circumstances, such as the previous conduct of the speaker. However, the existence of intent may not always be easy to demonstrate, particularly where remarks are ostensibly concerned with supposed facts or coded language is being used. ...” European Union law and case-law of the Court of Justice of the European Union (CJEU) 40. Framework Decision 2008/913/JHA of 28 November 2008 of the Council of the European Union on combating certain forms and expressions of racism and xenophobia by means of criminal law (OJ L 328, pp. 55-58) is presented in paragraphs 82 et seq. of the judgment in Perinçek v. Switzerland ([GC], no. 27510/08, ECHR 2015 (extracts)). 41. In addition, in May 2016 the European Commission launched a code of conduct involving four major IT companies (Facebook, Microsoft, Twitter and YouTube) to address the proliferation of racist and xenophobic hate speech online. The aim of the code is to ensure that requests to remove content are dealt with quickly. To date the Commission has conducted five evaluations of the code of conduct and presented its results in December 2016 and June 2017, and in January 2018, 2019 and 2020. On 1 March 2018 the Commission published Recommendation (EU) 2018/334 on measures to combat illegal content online effectively (OJ L 63, 6 March 2018). Lastly, on 15 December 2020, the Commission published, inter alia, the draft “Digital Services Act” Regulation, with the aim of having it adopted in 2022, to enable the implementation of a new regulatory framework, introducing across the European Union a series of new harmonised obligations for digital services (COM/2020/825 final). 42. As to the case-law of the CJEU, it held in its judgment Unabhängiges Landeszentrum für Datenschutz Schleswig-Holstein v. Wirtschaftsakademie Schleswig-Holstein GmbH of 5 June 2018 (C-210/16, EU:C:2018: 388), that the administrator of a fan page hosted on Facebook must be characterised as being responsible for the processing of the data of individuals visiting the page and therefore shares joint liability with the operator of the social network, within the meaning of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (OJ L 281 of 23 November 1995, pp. 31-50). 43. In its judgment in Fashion ID of 29 July 2019 (C-40/17, EU:C:2019:629), it held that the manager of a website, who inserts a “like” module from the social network Facebook, may be regarded as responsible, within the meaning of Directive 95/46, for the collection and communication of the personal data of visitors to his or her website. 44. In Glawischnig-Piesczek v. Facebook Ireland of 3 October 2019 (C- 18/18, EU:C:2019:821), the CJEU held that Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (OJ L 178 of 17 July 2000, pp. 1-16), in particular Article 15(1) thereof, must be interpreted as not precluding a court of a Member State from: ordering a host provider to remove information which it stores, the content of which is identical to the content of information which was previously declared to be unlawful, or to block access to that information, irrespective of who requested the storage of that information; ordering a host provider to remove information which it stores, the content of which is equivalent to the content of information which was previously declared to be unlawful, or to block access to that information, provided that the monitoring of and search for the information concerned by such an injunction are limited to information conveying a message the content of which remains essentially unchanged compared with the content which gave rise to the finding of illegality and containing the elements specified in the injunction, and provided that the differences in the wording of that equivalent content, compared with the wording characterising the information which was previously declared to be illegal, are not such as to require the host provider to carry out an independent assessment of that content; and ordering a host provider to remove information covered by the injunction or to block access to that information worldwide within the framework of the relevant international law. TERMS OF USE OF social NETWORK Facebook 45. At the relevant time a “Statement of rights and responsibilities” governed Facebook’s relations with its users, who were deemed to agree to it upon accessing the network. It provided in particular as follows: “when you publish content or information using the Public setting, it means that you are allowing everyone, including people off of Facebook, to access and use that information and to associate it with you (i.e. your name and profile picture)” (point 2.4). The statement also contained a provision on “hateful” content (replaced by “hate speech”, then “hateful speech” on subsequent amendment – cf. Part III, point 12 “Hate Speech”, in the latest version of “Community Standards”). THE LAW ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 46. The applicant argued that his criminal conviction, on account of comments posted by third parties on the “wall” of his Facebook account, had breached Article 10 of the Convention, which reads as follows: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” Admissibility 47. Noting that this complaint is not manifestly ill-founded and is not inadmissible on any other grounds within the meaning of Article 35 of the Convention, the Court declares it admissible. MeritsThe parties’ submissions The parties’ submissions The parties’ submissions (a) The applicant 48. The applicant submitted, by way of preliminary argument, that the domestic courts had extrapolated from the expression “kisses to [L.]” that it was directed against the partner of the deputy mayor of Nîmes and they had relied upon it in convicting him for incitement to racial hatred and discrimination, whereas L.T. had not been the subject of, or identifiable in, S.B.’s comment. He also stressed that he had not been aware, at the time of their publication, of the comments that had been posted on the “wall” of his Facebook account. He pointed out that S.B. had deleted his comments after his discussion with L.T., on the same day, and argued that he could not therefore be criticised for failing to react promptly to a publication that had materially existed for less than twenty-four hours and in respect of which L.T. had not sent him any notice to delete, even though his contact details, in his capacity as a local councillor, were in the public domain. The applicant stated that he was not a close friend of the couple, the deputy mayor of Nîmes and his partner, that he knew neither the surname nor the forename of the partner and that she was not a public figure. Lastly, he noted that, after the comments containing the expression “kisses to [L.]” had immediately been removed by their author, S.B., only the comments published by L.R. remained, and the latter had made no reference to L.T. The applicant concluded that his conviction had been decided in breach of the requirement of foreseeability of the law, since he had not been able to anticipate its application to the circumstances of the case. 49. The applicant further submitted that the Court’s case-law attached the utmost importance to the protection of freedom of expression in the context of political controversy, especially during an election period. L.R. had therefore been legitimately entitled to post his unseemly comments about the deterioration of the town of Nîmes during the term of office of the outgoing mayor. He also submitted that in their case-law prior to the events, the domestic courts had required much harsher language, which had to “contain an incitement or an encouragement to commit an act”. The applicant also saw in this a failure to ensure foreseeability and legal certainty. 50. By analogy with the case-law concerning the lack of liability of journalists who merely “disseminated” statements made by third parties (referring to Magyar Tartalomszolgáltatók Egyesülete and Index.hu Zrt v. Hungary, no. 22947/13, 2 February 2016), the applicant submitted that his conviction, in his capacity merely as publisher or producer, did not appear to be a necessary and proportionate restriction of his freedom to impart information, given that the authors of the impugned statements had been identified and punished. He also criticised the courts for not taking into account the fact that at no time had the person who considered herself the target of the comments asked him to delete them. In his view this would entail a strict liability potentially requiring him to close the commenting space altogether and thus entailing a chilling effect on freedom of expression. 51. Lastly, the applicant contended that by requiring him to ensure particular vigilance on account of the fact that his Facebook profile was likely to attract comments of a political nature that were in essence polemical, the courts had placed a special burden of liability upon him. (b) The Government 52. The Government began by stating that the criminal offences provided for in the Freedom of the Press Act of 29 July 1881, where they were committed not by the written press but by an audiovisual or online means of communication, were subject, in view of the specific nature of such media, to a special system of criminal liability governed by sections 93-2 and 93-3 of Law no. 82-652 of 29 July 1982. 53. They added that Facebook pages fell within the category of online communication to the public, which was itself included in the broader category of electronic means of public communication. They emphasised that, according to the Court of Cassation and the Constitutional Council, the “producer” was “the person who took the initiative of creating an online public communication service for the exchange of opinions on pre-defined themes”. 54. The Government acknowledged that there had been no other case-law concerning the criminal liability of an individual who owned a Facebook “wall” on account of comments posted there by third parties. They noted, however, that the Court of Cassation had previously held that the use of the Internet was covered by the phrase “any electronic means of communication to the public”, while developing case-law on the concept of “publicity”, which was established when the addressees were not linked to each other by a community of interest and the offending remarks were disseminated via a website accessible to the public (see paragraph 29 above). They further referred to two cases in which the Court of Cassation had handed down judgments relating to the criminal liability of private individuals, producers of an online public communication site enabling messages from Internet users to be accessed by the public, under section 93-3 of Law no. 82-652 of 29 July 1982 on audiovisual communication: one concerned the agent of a chain of shops (creator of a “discussion forum” on the Internet aimed at allowing non-salaried managers of the chain’s shops to express their views), who had been sued for defamation on account of comments posted on the forum ( Court of Cassation, Criminal Division, 31 January 2012, Appeal no. 11-80.010); the second concerned the chair of an association for the defence of local residents of a municipality, on account of comments posted by Internet users on the personal contribution page of the association’s website (Court of Cassation, Criminal Division, 30 October 2012, Appeal no. 10-88.825). 55. The Government did not deny that the applicant’s conviction constituted an interference with the exercise of his right to freedom of expression and in particular with his right to impart information. However, they took the view that this interference was “prescribed by law”, pursued a legitimate aim and was “necessary in a democratic society” within the meaning of Article 10 § 2 of the Convention. 56. They first pointed out that the Court had previously held that a conviction under section 24 of the Act of 29 July 1881 was “prescribed by law” within the meaning of Article 10 § 2 of the Convention ( Soulas and Others v. France, no. 15948/03, 10 July 2008). As to whether the offence could be imputed to the applicant, they noted that the concept of producer of an online communication site, the definition of which had not changed since the Court of Cassation’s judgment of 8 December 1998, had been perfectly foreseeable and accessible to the applicant, a fact which the latter had not disputed. They took the view that the applicant was merely challenging the domestic courts’ in concreto assessment of the constituent elements of the offence. 57. The Government added that the applicant’s analysis of the grounds for his conviction was incorrect. In actual fact, the domestic courts had noted his status as a politician in order to characterise him as a producer, establishing that he had deliberately chosen to set up an online communication site, and they had convicted him on the ground that he had not promptly deleted the hateful comments. His status as a politician had been noted among other evidence and facts, including his own statements about his daily consultation of the site, the fact that he could not have been unaware of the comments or the fact that he had been informed of the civil party’s anger. 58. As to the legitimate aim, the Government stressed that section 24 of the Act of 29 July 1881 punished conduct which induced a feeling of hostility, rejection or hatred towards members of a community. The interference had sought to ensure the “protection of the reputation or rights of others”, this being one of the legitimate aims enumerated in the second paragraph of Article 10. 59. As to the necessity of the interference, the Government noted that the issue was a novel one, while acknowledging that similar subjects had been analysed in the Court’s case-law. 60. They submitted that, in view of the context of the case and the nature of the remarks made, the State had enjoyed a wide margin of appreciation. While this margin was narrower in the case of remarks made by a politician in a political or general-interest debate, this was not the case where they actually constituted hate speech. 61. They noted that the applicant had not been convicted for posting, on his Facebook “wall”, comments expressing a mere political opinion on changes in the town of Nîmes, but comments that had incited hatred towards the Muslim community in general and L.T. in particular. In their view, the aim and effect of the impugned remarks had been to arouse a strong feeling of rejection and hatred towards those targets, whilst the applicant had maintained that they “remained within the limits of freedom of expression” since they contained “no call to murder or violence”. In the Government’s submission, the test for hate speech was not whether or not it called for murder, but whether it aroused significant feelings of rejection and hatred. The impugned statements therefore fell within the scope of hate speech, in respect of which States had a broader margin of appreciation in view of the serious consequences that such speech could have. 62. The Government further argued that, as a politician, the applicant had special “duties and responsibilities” in relation to hate speech, thus affecting the margin of appreciation to be afforded to the State. 63. As to the existence of sufficient and relevant grounds, the Government first noted the electoral context and, consequently, the fact that the Facebook “wall” was likely to receive numerous hits. L.R.’s comment had been left there even though the applicant had issued a statement urging commentators to be careful, thus showing that he had read the posts on the “wall” of his Facebook account. Therefore, the retention of L.R.’s comment, together with the warning given, could have led the reader to believe that the applicant had not regarded it as problematic and that he was associating himself with it. His conviction had therefore been in keeping with the need to combat hate speech effectively during election campaigns. 64. With regard to the status of the person targeted by the impugned comments, they pointed out that L.T. was well known but without being a public figure. She could therefore legitimately expect not to be associated, like the Muslim community, with the alleged insecurity in the town of Nîmes. 65. The Government further submitted that the national courts, in well-reasoned decisions, had found that the remarks in question amounted to incitement to hatred. They had convicted the applicant because he had deliberately left a hateful comment on the “wall” of his Facebook account, despite being aware of its existence. The applicant had chosen to allow comments to be posted on his “wall” and to make it publicly accessible. 66. The Government pointed out that, contrary to the applicant’s submission, the case-law prior to the relevant events had not required much harsher language “containing an incitement or encouragement to commit an act”. On the contrary, according to the Court of Cassation, trial courts had to find that the impugned remarks “may incite the public to discrimination, hatred or violence against a specific person or group”, incitement already being defined as any remarks capable of inciting the public to discrimination, hatred or violence against a specific person or group. 67. The Government submitted, lastly, that the severity of the penalty was proportionate to the offence committed. The Court’s assessment 68. The Court notes that it is not in dispute between the parties that the applicant’s criminal conviction constituted an interference with the exercise of his right to freedom of expression, as guaranteed by Article 10 § 1 of the Convention. Such interference will infringe Article 10 unless it was “prescribed by law”, pursued one or more of the legitimate aims referred to in paragraph 2 and was “necessary” in a democratic society in order to achieve the aim or aims in question. (a) “Prescribed by law” 69. The applicant began by complaining about the lack of foreseeability of his criminal conviction, alleging a breach of the principle of legal certainty. The Court, however, agrees with the Government’s observation that the applicant merely called into question the in concreto assessment by the domestic courts of the elements of the offence (see paragraph 56 above). It thus notes that the applicant, who did not raise any arguments to dispute the point that the interference was “prescribed by law” within the meaning of Article 10 of the Convention in the context of his appeal on points of law (see paragraph 23 above), was in fact complaining about the assessment by the domestic courts in the circumstances of the case (see paragraphs 48 et seq. above), this being relevant to an examination of the “necessity” of the interference and not to whether the interference was “prescribed by law”. 70. Moreover, the Court notes that the applicant’s criminal conviction was handed down mainly on the basis of section 23 first paragraph, section 24, eighth paragraph, of the Law of 29 July 1881 and section 93-3 of Law no. 82-652 of 29 July 1982 (see paragraphs 16 and 25-26 above). 71. It observes that it has previously found that a criminal conviction under sections 23 and 24 of the Law of 29 July 1881 meets the requirement of foreseeability of the law within the meaning of Article 10 of the Convention (see, among other authorities, Garaudy v. France (dec.), no. 65831/01, 24 June 2003; Soulas and Others v. France, no. 15948/03, § 29, 10 July 2008; and Le Pen v. France (dec.), no. 18788/09, 20 April 2010 ). It does not see any reason to depart from that finding in the present case. 72. The Court also notes that the applicant was prosecuted as principal, in his capacity as producer within the meaning of section 93-3 of Law no. 82-652 of 29 July 1982, in line both with the Constitutional Council’s decision of 16 September 2011 and the Court of Cassation’s case-law prior to the applicant’s conviction concerning the concept of “producer” (see paragraphs 27-29 above). Admittedly, it finds that the responsibility of a Facebook account holder on account of remarks posted on the “wall” had not previously given rise to any specific case-law. The Court would point out, however, that the novel character, particularly in the light of case-law, of the legal question thus raised does not constitute in itself a breach of the requirements of accessibility and foreseeability of the law, in so far as the solution adopted was one of the possible and reasonably foreseeable interpretations (see, mutatis mutandis, Soros v. France, no. 50425/06, § 58, 6 October 2011; Huhtamäki v. Finland, no. 54468/09, § 51, 6 March 2012; and X and Y v. France, no. 48158/11, § 61, 1 September 2016 ). In addition, and above all, the applicant has not called into question this legal basis in terms of the requirements of Article 10, not having raised such an objection in the context of his appeal on points of law either (see paragraph 23 above). The Court does not therefore find it necessary to address this aspect of the foreseeability of the law. 73. In those circumstances, the Court does not see any reason to find that the interference was not “prescribed by law” within the meaning of the second paragraph of Article 10 of the Convention. (b) Legitimate aim 74. The Court finds that the measure pursued the legitimate aim of protecting the reputation or rights of others ( see Soulas, cited above, § 30; Le Pen, cited above; and Delfi AS v. Estonia [GC], no. 64569/09, § 130, ECHR 2015 ). (c) Whether the interference was “necessary in a democratic society” (i) General principles 75. The Court would refer to the general principles for assessing the necessity of an interference with the exercise of freedom of expression, those principles having been frequently reaffirmed by the Court since the Handyside v. the United Kingdom judgment (7 December 1976, Series A no. 24), and restated more recently in Morice v. France ([GC], no. 29369/10, § 124, ECHR 2015), Delfi AS (cited above, §§ 131-139), and Perinçek v. Switzerland ([GC], no. 27510/08, §§ 196-97, ECHR 2015 (extracts), with the case-law references therein). 76. The Court thus reiterates that freedom of expression is one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. Subject to Article 10 § 2, it applies not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no “democratic society”. 77. The adjective “necessary” in Article 10 § 2 implies the existence of a pressing social need. In general, the “need” for an interference with the exercise of the freedom of expression must be convincingly established. Admittedly, it is primarily for the national authorities to assess whether there is such a need capable of justifying that interference and, to that end, they enjoy a certain margin of appreciation. However, the margin of appreciation goes hand in hand with European supervision, embracing both the law and the decisions that apply it. 78. In exercising its supervisory jurisdiction, the Court must examine the interference in the light of the case as a whole, including the content of the impugned statements and the context in which they were made. In particular, it must determine whether the interference in issue was “proportionate to the legitimate aims pursued” and whether the reasons adduced by the national authorities to justify it were “relevant and sufficient”. In doing so, the Court has to satisfy itself that these authorities applied standards which were in conformity with the principles embodied in Article 10 and that, moreover, they relied on an acceptable assessment of the relevant facts. (ii) Application to the present case 79. The Court observes that the domestic courts found the applicant guilty of the offence of incitement to hatred or violence against a group in general, and the individual L.T. in particular, on account of their origin or the fact of belonging, or not belonging, to a given ethnicity, nation, race or religion. The Nîmes criminal court, relying on the provisions of section 93-3 of the Law of 29 July 1982, as interpreted by the Constitutional Council in its decision of 16 September 2011, found that the applicant, by taking the initiative of creating an electronic public communication service for the exchange opinions, and by allowing L.R.’s comments to remain visible almost six weeks after they had been posted, the applicant had not promptly put an end to this dissemination and was therefore guilty in his capacity as principal (see paragraph 18 above). Subsequently, the Nîmes Court of Appeal, while upholding the first-instance judgment, noted for its part that there was no evidence that the applicant had been informed of the content of the comments before they were published, but that in his capacity as an elected representative and public figure, which required him to be particularly vigilant, he had knowingly made the “wall” of his Facebook account public and had thus authorised his friends to post comments on it, thereby becoming liable for the content of any such posts. It also found that the applicant had not promptly stopped the dissemination of the impugned comments, while noting that he had further justified his position by claiming that such comments were compatible with freedom of expression and that he had deliberately left them on his Facebook “wall” (see paragraph 22 above). 80. In the light of the reasoning of the domestic courts, the Court must, in accordance with its constant case-law, examine whether their finding of liability on the part of the applicant was based on relevant and sufficient grounds in the particular circumstances of the case (see, in relation to a major Internet news portal, Delfi AS, cited above, § 142). In doing so, and in assessing the proportionality of the impugned penalty, it will consider the context of the comments, the steps taken by the applicant to remove the comments once published, the possibility that the authors might have been held liable instead of the applicant and, lastly, the repercussions of the domestic proceedings for the applicant (see, inter alia, Delfi AS, cited above, §§ 142-43, and Jezior v. Poland [Committee], no. 31955/11, § 53, 4 June 2020). (α) Context of impugned comments ‒ Nature of impugned comments 81. The Court notes at the outset that the comments posted on the “wall” of the applicant’s Facebook account were clearly unlawful in nature (see, mutatis mutandis, Delfi AS, cited above, § 140). Both the Criminal Court, in its judgment of 28 February 2013 (see paragraph 17 above), and the Nîmes Court of Appeal, in its judgment of 18 October 2013 (see paragraph 21 above), established in reasoned decisions that: first, the impugned remarks clearly defined the group concerned, namely Muslims, and that to equate the Muslim community with delinquency and insecurity in the city of Nîmes, by associating this group with “drug dealers and prostitutes” who “reign supreme”, “riff-raff [who] sell drugs all day long” or those who throw stones “at ‘white people’s’ cars”, sought, in meaning and scope, to arouse a strong feeling of rejection and hostility towards the group of people who were known or presumed to be Muslims; on the other hand, the expression “Kisses to [L.]” referring to L.T., who was associated with F.P., a deputy mayor of the town of Nîmes portrayed in the comments as having contributed to the abandonment of the town to Muslims and thus to insecurity, was such as to associate her – because she was presumed, on account of her forename, to belong the Muslim community – with the alleged transformation of the town and thus to arouse hatred and violence against her personally. 82. The applicant indeed claimed that L.T. had not been the subject of S.B.’s comment and had not been identifiable (see paragraph 48 above) and that L.R.’s remarks, made in an electoral context, had not exceeded the limits of the right to freedom of expression (see paragraphs 14 and 49 above). 83. On this point, the Court reiterates that its role is limited to ascertaining whether the interference at issue in the present case can be regarded as “necessary in a democratic society” and that Contracting States enjoy, under Article 10, a certain margin of appreciation in assessing the need for and extent of an interference in the freedom of expression protected by that Article (see Mouvement raëlien suisse v. Switzerland [GC], no. 16354/06, § 59, ECHR 2012 (extracts)). This margin is defined by the type of expression in question; in this connection, there is little scope under Article 10 § 2 of the Convention for restrictions on political expression or on debate on questions of public interest (see Perinçek, cited above, § 197). 84. As regards the electoral context relied upon by the applicant, the Court would emphasise that the promotion of free political debate is a very important feature of a democratic society. It attaches the highest importance to freedom of expression in the context of political debate and considers that very strong reasons are required to justify restrictions on political speech. Allowing broad restrictions on political speech in individual cases would undoubtedly affect respect for the freedom of expression in general in the State concerned (see Feldek v. Slovakia, no. 29032/95, § 83, ECHR 2001 VIII, and Féret v. Belgium, no. 15615/07, § 63, 16 July 2009). However, the freedom of political debate is undoubtedly not absolute in nature. A Contracting State may make it subject to certain “restrictions” or “penalties”, but it is for the Court to give a final ruling on the compatibility of such measures with the freedom of expression enshrined in Article 10 (see Castells v. Spain, 23 April 1992, § 46, Series A no. 236, and Féret, cited above). 85. The Court thus reiterates that tolerance and respect for the equal dignity of all human beings are the cornerstones of a democratic and pluralistic society. It follows that, in principle, it may be considered necessary in democratic societies to penalise or even prevent all forms of expression that propagate, encourage, promote or justify hatred based on intolerance (including religious intolerance), provided that any “formalities”, “conditions”, “restrictions” or “sanctions” imposed are proportionate to the legitimate aim pursued (see Féret, cited above, § 64). 86. The Court also attaches particular importance to the medium used and the context in which the offending remarks were disseminated, and therefore to their potential impact on public order ( ordre public ) and social cohesion (ibid., § 76). The present case concerned the “wall” of a Facebook account which was freely accessible to the public and used in the context of an election campaign, representing a form of expression which was aimed at the electorate in the broad sense, and thus the entire population. As the Court has previously held, in the light of its accessibility and its capacity to store and communicate vast amounts of information, the Internet, which includes blogs and social media (see Magyar Helsinki Bizottság v. Hungary [GC], no. 18030/11, § 168, 8 November 2016), plays an important role in enhancing the public’s access to news and facilitating the dissemination of information in general (see Delfi AS, cited above, § 133). However, while user-generated expressive activity on the Internet provides an unprecedented platform for the exercise of freedom of expression, alongside these benefits certain dangers may also arise. Defamatory and other types of clearly unlawful speech, including hate speech and speech inciting violence, can be disseminated like never before (ibid., § 110; Savva Terentyev v. Russia, no. 10692/09, § 79, 28 August 2018; and Savcı Çengel v. Turkey (dec.), no. 30697/19, § 35, 18 May 2021). 87. In an electoral context, while political parties should enjoy broad freedom of expression in order to try to convince their electorate, in the case of racist or xenophobic discourse such a context may contribute to stirring up hatred and intolerance, as the positions of election candidates tend to become more rigid and slogans or stereotyped formulae are given more prominence than reasonable arguments. The impact of racist and xenophobic discourse is then likely to become greater and more harmful (see Féret, cited above, § 76). The Court reiterates that the particular responsibility of politicians in combating hate speech has also been emphasised by the Committee on the Elimination of Racial Discrimination in its General Recommendation no. 35 of 26 September 2013 (see paragraph 36 above) and by ECRI in its General Policy Recommendation no. 15 (see paragraph 38 above). 88. The Court has examined the offending remarks posted by S.B. and L.R., who were not themselves politicians or active members of a political party speaking on its behalf. It considers that the domestic courts’ findings regarding these posts were fully justified. The language used clearly incited hatred and violence against a person on account of his or her religious association and this fact cannot be disguised or minimised by the electoral context (see, mutatis mutandis, Féret, cited above, § 76) or the intended reference to local problems. The Court reiterates, as a matter of principle, that inciting hatred does not necessarily involve an explicit call for an act of violence, or other criminal acts. Attacks on persons committed by insulting, holding up to ridicule or slandering certain parts of the population or specific groups thereof, or to incite hatred and violence against a person on account of his or her religious association, as was the case in the present instance, will be sufficient for the authorities to seek to combat such xenophobic or otherwise discriminatory speech in response to freedom of expression which has been exercised in an irresponsible manner and is harmful to the dignity, or even the safety, of those parties or groups (ibid., § 73, and Atamanchuk v. Russia, no. 4493/11, § 52, 11 February 2020). The Court would also refer to the Explanatory Memorandum in respect of ECRI’s General Policy Recommendation No. 15 of 8 December 2015 (see paragraph 39 above), according to which, in some instances, a particular feature of the use of “hate speech” is that it may be intended to incite, or can reasonably be expected to have the effect of inciting, others to commit acts of violence, intimidation, hostility or discrimination against those targeted by it. The element of incitement entails there being either a clear intention to bring about the commission of acts of violence, intimidation, hostility or discrimination or an imminent risk of such acts occurring as a consequence of the particular “hate speech” used. Intent to incite might be established where there is an unambiguous call by the person using hate speech for others to commit the relevant acts or it might be inferred from the strength of the language used and other relevant circumstances, such as the previous conduct of the speaker. However, the existence of intent may not always be easy to demonstrate, particularly where remarks are ostensibly concerned with supposed facts or coded language is being used (see also Kilin v. Russia, no. 10271/12, § 73, 11 May 2021). ‒ The applicant’s liability in respect of comments by third parties 89. The Court would point out that the comments in question were expressed in the context of the local political debate, more specifically an election campaign for the forthcoming parliamentary elections, and that they were posted on the “wall” of the Facebook account of the applicant, an elected politician and candidate in those elections. While the Court attaches the utmost importance to freedom of expression in the context of political debate and considers that political discourse cannot be restricted without compelling reasons (see paragraph 84 above), and it is particularly important in the period preceding an election that opinions and information of all kinds are permitted to circulate freely (see Orlovskaya Iskra v. Russia, no. 42911/08, § 110, 21 February 2017, and Magyar Kétfarkú Kutya Párt, cited above, § 56), it would nevertheless refer back to its finding as to the clearly unlawful nature of the impugned comments (see paragraphs 81-88 above). Therefore, in addition to the fact that comments made in the context of political debate must not exceed certain limits, particularly as regards respect for the reputation and rights of others (see Le Pen v. France (dec.), no. 45416/16, § 34, 28 February 2017), in view of “the vital importance of combating racial discrimination in all its forms and manifestations” (see Jersild v. Denmark, 23 September 1994, §§ 30-31, Series A no. 298), the applicant’s status as an elected official cannot be regarded as a circumstance mitigating his liability (see Féret, cited above, § 75). In this connection, the Court reiterates that it is crucial for politicians, when expressing themselves in public, to avoid comments that might foster intolerance (see Erbakan v. Turkey, no. 59405/00, 6 July 2006, § 64) and, since they too are subject to duties and responsibilities under Article 10 § 2 of the Convention, they should also be particularly careful to defend democracy and its principles, especially in an electoral context characterised, as in the present case, by local tensions, their ultimate aim being to govern (see Féret, cited above, § 75). 90. The Court notes, moreover, that the applicant was not reproached for using his right to freedom of expression, particularly in the political debate, but for his lack of vigilance and reaction to certain comments posted on the “wall” of his Facebook account. 91. The Court observes in this connection that F.P. was precisely one of the applicant’s political opponents (see paragraphs 4-5 above) and that the events took place in a particular local political context, with clear tensions within the population, which were evident in particular from the comments at issue, but also between the protagonists. 92. The Court has previously emphasised that national authorities are better placed than the Court to understand and appreciate the specific societal problems faced in particular communities and contexts (see Maguire v. the United Kingdom (dec.), no. 58060/13, § 54, 3 March 2015). From this perspective, the Court considers that the Nîmes Court of Appeal’s close knowledge of the local context of the events at issue enabled it to have a better grasp of the context of the impugned comments. 93. The Court concludes from the foregoing that both the Criminal Court and the Court of Appeal based their reasoning as to the applicant’s liability on relevant and sufficient grounds under Article 10 of the Convention. (β) Steps taken by the applicant 94. The Court notes that the Nîmes Court of Appeal held that there was no evidence that the applicant had been informed of the content of the comments before they were posted. Like the first-instance court, it thus examined the applicant’s conduct only in relation to the period after those comments appeared. 95. The domestic courts relied on a number of factors in finding the applicant liable. Both the Criminal Court and the Nîmes Court of Appeal noted first of all that the applicant had knowingly made the “wall” of his Facebook account public and had thus authorised his friends, namely 1,829 individuals as at 25 October 2011 according to the first-instance court, to post comments on it. They concluded that the applicant was therefore under an obligation to monitor the content of the comments posted. Moreover, the Criminal Court emphasised that the applicant could not have been unaware of the fact that his account was likely to attract comments with an inherently polemical political content and that he had a heightened duty to monitor them specifically (see paragraph 18 above). The Court of Appeal considered, in the same vein, that his status as a political figure required him to be all the more vigilant (see paragraph 22 above). The Criminal Court accordingly rejected the applicant’s arguments that he had not had time to read the comments and was not aware of what S.B. and L.R. had posted, while the Court of Appeal pointed out that he had told the investigators that he consulted the “wall” of his Facebook account every day. 96. The Court further notes that it is not in dispute that S.B. himself deleted the comment of which he was the author within minutes after L.T.’s arrival at his workplace, the morning after it was posted. L.T. formally acknowledged this to the investigators, stating that she had been able to see that the comment had disappeared shortly after her discussion with S.B. (see paragraph 11 above). The impugned comment, which was in fact the only one directed at L.T. and was widely relied upon by the domestic courts in their reasoning, was thus promptly withdrawn by its author, less than twenty-four hours after its publication. Accordingly, assuming that the applicant had indeed had the time and opportunity to see this comment before its deletion, the Court considers that to require him to have acted even more promptly, bearing in mind that the domestic authorities were unable to show the existence of such an obligation in the light of the particular circumstances of the case, would amount to requiring excessive and impracticable responsiveness (see, mutatis mutandis, Jezior, cited above, § 58). 97. However, the Criminal Court expressly found that L.R.’s comments, for their part, were still visible on 6 December 2011 (see paragraph 18 above), that is to say, almost six weeks after they were posted (compare Delfi AS, cited above, and Pihl v. Sweden (dec.), no. 74742/14, 7 February 2017, cases where the unlawful content remained online for six weeks and nine days, respectively; contrast Jezior, cited above, § 57). The Court observes that, although the applicant informed the investigators that public access to the “wall” of his Facebook account had been removed, the deletion did not take place until a few days before his interview, that is to say, approximately three months after the events (see paragraph 14 above), even though S.B. had told the gendarmes that he had informed the applicant of his altercation with L.T. on the very same day, 25 October 2011 (see paragraph 13 above). Admittedly, on 27 October 2011 the applicant also posted a message on his “wall” inviting contributors to “be careful of the content of [their] comments”, but without deleting the impugned comment (see paragraph 10 above) and, in view of his statement that he had been unaware of L.R.’s remarks before being summoned by the gendarmes, without having taken the trouble to check, or have checked, the comments that were then publicly accessible. 98. In addition, in the Court’s view there is, without any doubt, a shared liability between the holder of a social media account and the operator of the network (see, in the same vein, albeit concerning a fan page and not an individual account on Facebook, the CJEU judgment in Unabhängiges Landeszentrum für Datenschutz Schleswig-Holstein v. Wirtschaftsakademie Schleswig-Holstein GmbH, paragraph 42 above). Moreover, Facebook’s terms of use already included the prohibition of hate speech, indicating that consent to this rule was given by all users upon accessing the network (see paragraph 45 above). 99. In these circumstances, the Court is of the view that the grounds given by the Criminal Court and the Court of Appeal were, one again, in respect of the steps taken by the applicant, relevant and sufficient within the meaning of Article 10 of the Convention. It considers, moreover, that this finding is strengthened by the applicant’s claims, as taken into account by the Nîmes Court of Appeal, that such comments remained within the limits of freedom of expression (see paragraphs 14 and 22 above). (γ) Possibility of authors of comments being held liable instead 100. The Court notes that the authors of the impugned remarks were identified, whether directly by L.T., who immediately recognised S.B. (see paragraph 8 above), or by the investigators in the case of L.R. (see paragraph 12 above). It points out that the applicant was nevertheless held liable, on the basis of section 93-3 of the Law of 29 July 1982, in his capacity as the producer of an online public communications site, allowing Internet users to post publicly accessible messages and incurring liability, in particular, by failing to remove unlawful messages as soon as he became aware of them. It thus notes that, although the applicant was considered by law to be the “perpetrator” of the offence and was sentenced accordingly by the domestic courts, he had in fact been accused of conduct which was separate from that of those who actually posted the comments on the “wall” of his Facebook account. In other words, the domestic courts established the facts for which the applicant was liable and he was not prosecuted instead of S.B. and L.R., who were dealt with separately, but on account of a particular form of conduct directly linked to his status as holder of the “wall” of his Facebook account. In the Court’s view, it is legitimate for such status to entail specific obligations, in particular where, like the applicant, the holder of a Facebook “wall” decides not to avail himself of the possibility of restricting access to it, choosing instead to make it accessible to the general public. Like the domestic courts, the Court considers that this is particularly true in a context which is conducive to the expression of clearly unlawful comments, as in the present case. 101. Admittedly, as advocated in the Annex to Recommendation No. R (97) 20 of the Committee of Ministers of the Council of Europe on “hate speech” (see paragraph 37 above), domestic law and practice should draw a clear distinction between, on the one hand, the liability of the author of expressions of hate speech and, on the other, the potential liability of the media and media professionals who contribute to its dissemination as part of their task of imparting information and ideas on matters of public interest. In the present case, however, the comments were clearly unlawful (see paragraphs 81-88 above) and, moreover, contrary to Facebook’s terms of use (see paragraph 45 above). 102. The domestic courts therefore relied on relevant and sufficient grounds in this connection. (δ) Repercussions of domestic proceedings for applicant 103. The Court observes that the applicant was ordered to pay a fine, the amount of which was reduced by the Nîmes Court of Appeal to an amount of three thousand euros. It reiterates that the nature and severity of the penalty imposed are also factors to be taken into account when assessing the proportionality of the interference (see, among many other authorities, Leroy v. France, no. 36109/03, § 47, 2 October 2008, and Féret, cited above, § 79). It takes the view that, having regard to the sentence and the fact that there was no other established repercussion for the applicant, the interference with his right to freedom of expression was not disproportionate on this basis. (ε) Conclusion 104. In conclusion, having regard to the specific circumstances of the present case, the Court finds that the decision of the domestic courts to convict the applicant, for not having promptly deleted the unlawful comments published by third parties on the “wall” of his Facebook account, used in the context of his election campaign, was based on relevant and sufficient reasons, having regard to the margin of appreciation afforded to the respondent State. The interference may thus be regarded as “necessary in a democratic society”. 105. Accordingly, there has been no violation of Article 10 of the Convention. | In its Chamber judgment of 2 September 2021, the Court held, by six votes to one, that there had been no violation of Article 10 (freedom of expression) of the Convention in respect of the applicant, finding that, in the specific circumstances of the case, the domestic courts’ decision to convict him had been based on relevant and sufficient reasons, having regard to the margin of appreciation afforded to the respondent State, and that the interference complained of could therefore be seen as “necessary in a democratic society”. On 17 January 2022 the Grand Chamber Panel accepted the applicant’s request that the case be referred to the Grand Chamber. On 29 June 2022 the Grand Chamber held a hearing in the case. |
19 | Right to know one’s origins and actions to establish a legal parent-child relationship | II. RELEVANT DOMESTIC LAW AND PRACTICE AND COMPARATIVE LAW A. Domestic law and practice 16. Under Article 250 of the Civil Code, one of the parents may decide not to recognise his or her child. In order to exercise that right, the mother must, at the time of the birth, request the hospital to keep her identity secret. In such a case a medical file containing medical information about the mother and child is drawn up. Only the child’s general practitioner may have access to the file, with the permission of the child’s guardian. 17. Simple adoption (affiliazione ) was created in 1942 in order to provide assistance to abandoned or parentless children aged under eighteen. Unlike full adoption, this did not create an effective family relationship and the person being adopted did not have to be childless; however, he or she did have to be aged under eighteen. A simple adoption order could be requested by: the person with whom the child had been placed, the Health and Social Security Department, or the person who had been raising the child on their own initiative. 18. The Articles of the Civil Code providing for simple adoption were repealed as a result of the entry into force of Law no. 184 of 4 May 1983 (subsequently revised by Law no. 149 of 2001 and by Legislative Decree no. 196 of 30 June 2003). 19. Section 27 of Law no. 184/1983 guarantees the right to keep a child’s origins secret in the absence of express authorisation by the judicial authority. 20. Under section 28(7) of Law no. 184/1983, a mother who decides not to keep her child can give birth in a hospital and at the same time remain anonymous on the declaration of birth. That anonymity lasts one hundred years, after which access to the birth certificate becomes possible. 21. An adoption order, once issued by the court, is sent to the register office so that a note can be made in the margin of the birth certificate. Any copies of the adopted child’s civil-status certificates must be issued with only the new family name shown and must bear no mention of the biological father or mother or any annotation regarding the adoption. However, where the registrar is expressly so authorised by the court, he or she may disclose this information. 22. Adopted children may have access to information about their origins and the identity of their birth parents on reaching the age of twenty-five. Where there are compelling and proven reasons relating to their physical and mental health, they may obtain that information on their majority. An application is lodged with the family court of their place of residence, which gives its decision after assessing the particular situation and hearing any persons whom it deems it necessary to hear. 23. Access to the information is refused where the birth mother has not recognised the child at birth and where one of the birth parents has declared their wish not to be named on the birth certificate or has given their consent to the adoption subject to remaining anonymous. 24. In a judgment of 16 November 2005, the Constitutional Court held that withholding information about a child’s origins without first verifying whether the mother still did not wish to be identified was compatible with Articles 2, 3 and 32 of the Constitution. 25. The Constitutional Court observed, in particular, that section 28(7) of Law no. 184/1983 aimed to protect mothers who – in difficult circumstances – decided not to keep their child, by allowing them the possibility of giving birth in a hospital and at the same time remaining anonymous on the declaration of birth. In the court’s view, the mother could thus give birth in good conditions and was prevented from taking an irreversible decision. That possibility would be jeopardised if, under that provision, the mother were also to know that she might one day be called upon by the judicial authority to confirm or waive her decision. 26. Article 111 § 7 of the Italian Constitution provides: “Appeals to the Court of Cassation in cases of violations of the law are always admissible against judgments or measures affecting personal freedom pronounced by the ordinary or special courts”. 27. A government bill on access to personal origins has been before the Italian Parliament since 2008. The bill has two main objectives: i) to permit and make provision for a procedure whereby confidentiality can be waived without calling into question the legal consequences of the decision initially taken by the mother; ii) to make a waiver of confidentiality subject to the express agreement of the mother and child. Under the provisions of the bill, anyone aged twenty-five or over who has been adopted and not recognised at birth may apply to the family court for access to information about their origins, subject to the mother’s agreement. Where the child seeks to discover his or her origins, the family court will take steps to find the mother and obtain her consent to waive confidentiality while respecting her private life. Where the mother has died and where the father has died or cannot be identified, the court will obtain information about their identity and any medical data that may disclose the existence of any transmissible hereditary diseases. B. Right to knowledge of origins in the other member States of the Council of Europe 28. Whilst the system of anonymous or secret births would appear to exist in a minority of countries in Europe, it is not exceptional. In addition to France, where for many years the positive law has provided for a system of anonymous births, other national legislations, which are relatively recent as they have been drafted during the past decade, also provide for births in such conditions (Austria, Luxembourg, Russia, Slovakia). In France the system of anonymous births tends to resemble that of secret births, like the practice in the Czech Republic where the secrecy of the birth mother’s identity is temporary, rather than definitive, as access to the relevant information is delayed. 29. The situation of children born anonymously or secretly is comparable to that of children who find it difficult, or even impossible, to gain access to their biological origins. The omission of the name of one or other or of both parents may sometimes be provided for by law, but this is very rare (Italy, Luxembourg, France). Usually factual circumstances will prevent the registrar from fully completing the child’s birth certificate; court proceedings are brought to determine paternity/maternity and may be available to persons other than the child alone. Notwithstanding the fact that such actions may not necessarily be effective in the particular circumstances, their very existence, allowing research to be done into personal ties maintained by a child with his birth family, provides a safeguard for the interested persons. 30. It should further be pointed out that the practice of abandoning children continues in modern forms: there is an undeniable increase in the number of “ windows ” or “baby hatches” reminiscent of foundling wheels in the Middle Ages. It is practically and materially impossible for the child to gain access to information about his or her birth family; the register of births will give a “ fictitious ” name to the child that bears no connection to that of its birth parents. The circumstances of the birth may be only partially secret (Spain, Hungary), but this will then necessarily mean that some data is available. Legal proceedings are generally available for children searching for their birth mother (Bulgaria, Croatia, the former Yugoslav Republic of Macedonia) or mothers who may be searching for their child (Ukraine). 31. In the case of full adoption, the child will often lose all contact with its birth family; the new parent-child relationship will totally erase any ties that may have existed during the child’s previous life with other adults (Austria, France, Monaco, Bulgaria, Russia and the former Yugoslav Republic of Macedonia). Access to the birth certificate is sometimes possible from a minimum age (Germany, Croatia, Hungary, Latvia, Portugal). The child may be authorised to gain access to a wider range of information (Bulgaria, Estonia, Lithuania, Switzerland, Spain), which often presupposes bringing legal proceedings whereby the competing interests may be examined. 32. The United Kingdom and Ireland have set up a mechanism making it easier for adopted persons to gain access to records about their adoption that goes a long way towards reconciling the right to information of the adopted child and respect for the private and family life of the mother or, more broadly, the birth family. THE LAW ... II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 33. The applicant complained of her inability to obtain non-identifying information about her birth family. She maintained that she had suffered severe damage as a result of not knowing her personal history. She stated that she had been denied access to non-identifying information about her birth mother and family that would have enabled her to trace some of her roots while ensuring the protection of third ‑ party interests. She also complained that, in weighing the two competing interests, the legislature had given preference to the mother’s interests alone without there being any possibility for the applicant to request, as in French law, a waiver of confidentiality of the mother’s identity subject to the latter’s agreement. She also submitted that she had been the subject of a simple adoption order, which had not created an effective family relationship. She relied on Article 8 of the Convention, which provides: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 34. The Government contested the applicant’s allegations. B. The merits 1. The parties’ submissions a) The applicant 35. The applicant submitted that, according to the Court’s case-law, Article 8 of the Convention applied to both the child and the mother, and the right to know one’s origins could not have the effect of simply denying a woman’s interest in remaining anonymous in order to protect her health by giving birth in appropriate medical conditions: the conflict was between two private interests – which moreover affected two adults each endowed with her own free will – which were not easily reconciled, on account of the complex and delicate nature of the question raised by the secrecy of information about a child’s origins regarding each and everyone’s right to their personal history, the choice of the birth parents, the existing family tie and the adoptive parents. She argued that the Court should seek to balance the competing interests and examine whether in the present case the Italian system had struck a reasonable balance between the competing rights and interests. 36. The applicant submitted that no other legislative system protected the mother’s anonymity to such an extent – giving birth anonymously and then abandoning the child anonymously – as that formalised and institutionalised in Italy. 37. Thus, the applicant pointed out that the United Nations Convention on the Rights of the Child of 20 November 1989 provided that a child had from birth “as far as possible, the right to know his or her parents” (Article 7). Likewise, the Hague Convention of 29 May 1993 on Protection of Children and Cooperation in respect of Intercountry Adoption, which had been ratified by Italy, provided that the competent authorities of a Contracting State must ensure that information held by them concerning a child’s origins, in particular information concerning the identity of his or her parents, as well as the child’s medical history, would be preserved. The competent authorities were required to ensure that the child or his or her representative had access to such information, under appropriate guidance, in so far as was permitted by the law of that State (Article 30). 38. In Recommendation 1443 (2000) of 26 January 2000 – “International adoption: respecting children’s rights” – the Parliamentary Assembly of the Council of Europe invited the States to “ensure the right of adopted children to learn of their origins at the latest on their majority and to eliminate from national legislation any clauses to the contrary”. 39. In the applicant’s submission, Italy had exceeded the limits of its margin of appreciation because the system in place did not take account of the child’s interests. In that connection she pointed out that the Italian system was very different from the French system that the Court had examined in the case of Odièvre v. France ([GC], no. 42326/98, ECHR 2003 ‑ III) as it precluded children from obtaining information about the identity of the mother and even non-identifying information about the mother and the birth family. The system did not provide for access to the file, even with the mother’s agreement. Accordingly, the child’s interest in knowing his or her origins was entirely sacrificed, without any balance being struck between the competing interests and without any possibility of weighing up the interests at stake. Italian law accepted the mother’s decision as a blanket ban on any request for information made by the applicant, regardless of the reason for or the legitimacy of that decision. A refusal by the mother was irreversibly and in all circumstances binding on the child, who had no legal means by which to contest her birth mother’s unilateral decision. The mother could thus, at her own discretion, bring a suffering child into the world who was condemned, for life, not to know its origins. A blind preference was given to the mother’s interests alone. Furthermore, the mother could also, in the same way, paralyse the rights of third parties, particularly those of the biological father or brothers and sisters, who could also be deprived of the rights guaranteed by Article 8 of the Convention. 40. The applicant complained that Italy had failed to guarantee respect for her private life on account of its legal system, which imposed a blanket ban on revealing any information about the birth mother where the latter had requested the non-disclosure of her identity and which, above all, prohibited the communication of non-identifying information about the mother, whether this be by the Child Welfare Service or any other body that could provide access to that information. 41. The applicant also submitted that although she had requested access to information about her origins once she had become an adult, a person’s vital interest in obtaining the information necessary to uncover the truth about an important aspect of his or her personal identity, which was an integral part of the right to private life safeguarded by Article 8 of the Convention, was a subjective and highly personal right and therefore not subject to statutory limitation. b) The Government 42. The Government maintained that a woman’s right to request that the birth and her identity be kept secret was laid down by Article 250 of the Civil Code and section 28(7) of Law no. 184/1983, which guaranteed the right to keep a child’s origins secret in the absence of express authorisation by the judicial authority. In the Government’s submission, this was an interference in accordance with the law which also served to protect a public interest. 43. The Government did not deny that the notion of private life, which was also referred to in Article 8 of the Convention, could sometimes encompass information enabling a person’s physical or social identity to be established. However, they pointed out that the State had not refused to furnish the applicant with information but had taken into account her mother’s refusal from the beginning to allow her identity to be disclosed. 44. With regard to the proportionality of the interference, the Government submitted that a request by the child for access to information about its identity could conflict with the freedom which all women enjoyed to decline their role as mother or to assume responsibility for the child. Under Italian law, maternity was considered an aspect of private life and received statutory protection on that account. That protection had been confirmed by the Constitutional Court, which had declared unfounded a request for a review of the constitutionality of section 28(7) of Law no. 184 of 1983. The Constitutional Court stated that Law no. 149 of 28 March 2001, which had amended Law no. 184/1983, had introduced into the new section 28(1) an obligation on the adoptive parents to inform the adopted child that he or she had been adopted. Whilst the adoptive parents had not enabled the applicant to find out her origins, it was noteworthy that the applicant had not decided to request information about her origins until 2006. 45. According to the Government, the Court should take account of the fact that the applicant, who was now nearly seventy years old, had been adopted when she was six and that non-consensual disclosure of her origins could be very difficult at this stage, having regard to the possible non-negligible risks for her health and her present family. 46. The Government submitted that the State enjoyed a margin of appreciation in the event of a conflict between two private interests. That margin of appreciation was enlarged in the instant case by the fact that no European consensus on the issue of a child’s access to information about its origins existed. 2. The Court’s assessment 47. The Court reiterates that although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective respect for private life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves (see X and Y v. the Netherlands, 26 March 1985, § 23, Series A no. 91). The boundaries between the State’s positive and negative obligations under Article 8 do not lend themselves to precise definition. The applicable principles are nonetheless similar. In particular, in both instances regard must be had to the fair balance which has to be struck between the competing interests, and in both contexts the State enjoys a certain margin of appreciation (see Mikulić, cited above, § 58). 48. As in the case of Odièvre (cited above), the applicant complained that the respondent State had failed to ensure respect for her private life by its legal system, which totally precluded an action to establish maternity being brought if the birth mother had requested confidentiality and, above all, prohibited the Child Welfare Service or any other body that could give access to such information from communicating non-identifying data about the mother. 49. The Court points out that it has already stated (see Odièvre, cited above, § 43) that the issue of access to information about one’s origins and the identity of one’s birth parents is not of the same nature as that of access to a case record concerning a child in care or to evidence of alleged paternity. The applicant in the present case is an adopted child who is trying to trace another person, her birth mother, by whom she was abandoned at birth and who has expressly requested that information about the birth remain confidential. 50. The Court notes that the expression “everyone” in Article 8 of the Convention applies to both the child and the mother. On the one hand, the child has a right to know its origins, that right being derived from the notion of private life (see paragraph 47 above). The child’s vital interest in its personal development is also widely recognised in the general scheme of the Convention (see, among many other authorities, Johansen v. Norway, 7 August 1996, § 78, Reports of Judgments and Decisions 1996 ‑ III; Mikulić, cited above, § 64; or Kutzner v. Germany, no. 46544/99, § 66, ECHR 2002-I). On the other hand, a woman’s interest in remaining anonymous in order to protect her health by giving birth in appropriate medical conditions cannot be denied. 51. There is also a general interest at stake, as the Italian legislature has consistently sought to protect the mother’s and child’s health during pregnancy and birth and to avoid illegal abortions and children being abandoned other than under the proper procedure. 52. The Court reiterates that the choice of the means calculated to secure compliance with Article 8 in the sphere of the relations of individuals between themselves is in principle a matter that falls within the Contracting States’ margin of appreciation. In this connection, there are different ways of ensuring respect for private life, and the nature of the State’s obligation will depend on the particular aspect of private life that is at issue (see Odièvre, cited above, § 46). The extent of the State’s margin of appreciation depends not only on the right or rights concerned but also, as regards each right, on the very nature of the interest concerned. The Court considers that the right to an identity, which includes the right to know one’s parentage, is an integral part of the notion of private life. In such cases, particularly rigorous scrutiny is called for when weighing up the competing interests. 53. The Court must examine whether a fair balance has been struck in the present case between the competing interests: on the one hand, the applicant’s right to have access to information about her origins and, on the other, the mother’s right to remain anonymous. 54. The Court has held that the States must be allowed to determine the means which they consider to be best suited to achieve the aim of reconciling the protection of the mother and the legitimate request on the part of the applicant to have access to information about her origins while protecting the general interest. 55. In the present case the Court observes that, unlike the situation in the case of Odièvre (cited above, § 48), the applicant did not have access to any information about her mother and birth family that would allow her to trace some of her roots, while ensuring the protection of third-party interests. The applicant’s request for information about her origins was totally and definitively refused, without any balancing of the competing interests or prospect of a remedy. 56. Whilst it is true that the applicant, who is now sixty-nine years old, has been able to develop her personality even in the absence of certainty as to the identity of her birth mother, it must be acknowledged that an individual’s interest in discovering his or her parentage does not disappear with age, quite the reverse. Moreover, the applicant has shown a genuine interest in ascertaining her mother’s identity, since she has tried to obtain conclusive information on the subject. Such conduct implies mental and psychological suffering, even if this has not been medically attested (see Jäggi v. Switzerland, no. 58757/00, § 40, ECHR 2006 ‑ X). 57. The Court notes that, unlike the French system examined in Odièvre, Italian law does not attempt to strike any balance between the competing rights and interests at stake. In the absence of any machinery enabling the applicant’s right to find out her origins to be balanced against the mother’s interests in remaining anonymous, blind preference is inevitably given to the latter. Moreover, in Odièvre the Court observed that the new Law of 22 January 2002 improved the prospect of obtaining agreement to waive confidentiality and would facilitate searches for information about a person’s biological origins as a National Council for Access to Information about Personal Origins had been set up. The law was of immediate application and now allowed the persons concerned to request disclosure of their mother’s identity, subject to the latter’s consent being obtained (see Odièvre, cited above, § 49), and to have access to non-identifying information. In Italy the bill amending Law no. 184/1983 has been before Parliament since 2008 (see paragraph 27 above). 58. In the present case the Court notes that where the birth mother has decided to remain anonymous, Italian law does not allow a child who was not formally recognised at birth and was subsequently adopted to request either access to non-identifying information concerning his or her origins or the disclosure of the mother’s identity. Accordingly, the Court considers that the Italian authorities failed to strike a balance and achieve proportionality between the interests at stake and thus overstepped the margin of appreciation which it must be afforded. 59. There has therefore been a violation of Article 8 of the Convention. ... | The Court held that there had been a violation of Article 8 (right to respect for private life) of the Convention, considering in particular that a fair balance had not been struck between the interests at stake since the Italian legislation, in cases where the mother had opted not to disclose her identity, did not allow a child who had not been formally recognised at birth and was subsequently adopted to request either non-identifying information about his or her origins or the disclosure of the birth mother’s identity with the latter’s consent. |
4 | Right to respect for family life | II. RELEVANT DOMESTIC LAW AND PRACTICE 28. The detention of aliens pending their removal is mainly governed, in French domestic law, by the provisions of the Entry and Residence of Aliens and Right of Asylum Code (CESEDA). ... B. Conditions of detention ... 31. The practice of detaining children accompanying their parents is governed by decree no. 2005 ‑ 617 of 30 May 2005 concerning administrative detention and holding areas, which amended the CESEDA provision as follows: Article R. 553-3 “Administrative detention centres, which are not entitled to accommodate over 140 residents, shall provide detained aliens with hotel-type facilities and collective catering services. They shall comply with the following standards: 1. A minimum usable surface area of 10 square metres per detainee consisting of a bedroom and areas freely accessible during opening hours; 2. Non-mixed shared rooms, housing a maximum of six; 3. Personal hygiene facilities, consisting of washbasins, showers and toilets, freely accessible and in sufficient numbers, representing one washroom for every ten detainees; 4. A telephone freely accessible for every fifty detainees; 5. Premises and facilities necessary for catering, in compliance with standards laid down in a joint decision of the Agriculture Minister, the Defence Minister, the Health Minister and the Minister for SMEs, trade and crafts; 6. For more than forty detainees, a leisure room separate from the canteen, with a surface area of at least 50 square metres, plus 10 square metres for every fifteen additional detainees; 7. One or more rooms containing medical equipment, reserved for medical personnel; 8. A room for visits by family members and consular staff; 9. The room mentioned in Article R. 553-7, reserved for lawyers; 10. A room assigned to the organisation mentioned in Article R. 553-13; 11. A room, containing furniture and a telephone, assigned to the association mentioned in the first paragraph of Article R. 553-14; 12. An area for open-air exercise; 13. A luggage room. Administrative detention centres catering for families shall also contain bedrooms that are specially adapted, in particular for childcare.” Article L. 552-4 “By way of exception, the court may order aliens to reside at a specific address when they can provide effective guarantees that they will not abscond, after surrendering to the police or gendarmerie their original passport and any identity document, in exchange for an acknowledgment of receipt constituting proof of the person’s identity and indicating the removal measure that is pending. Where an order to reside at a specific address is made in respect of an alien who has previously absconded from the execution of an applicable removal or deportation measure, or has breached a ban on re-entry that has not been lifted, the order shall give specific reasoning.” 32. The Court notes that French law precludes the placement of minors in administrative detention: Article L. 511-4 “An obligation to leave French territory or a removal measure, pursuant to the present chapter, cannot be decided in respect of: 1 o An alien who is under eighteen years of age; ...” Article L. 521-4 “Deportation cannot be ordered in respect of an alien under eighteen years of age.” 33. The Cimade, an ecumenical non-governmental organisation providing assistance to immigrants, in its report “Administrative detention centres and facilities” (“ Centres et locaux de rétention administrative ”), published in 2010, pointed out that even though the law did not permit the detention of minors, 318 children “accompanying” their parents had been deprived of their liberty in 2009. Their average age was eight. The Cimade emphasised that administrative measures of placement in detention could not be taken against children, so their detention was devoid of legal basis. 34. As a result, the administrative detention centres of Lille-Lesquin 2, Coquelles, Lyon, Rouen-Oissel, Marseille, Metz-Queuleu, Nîmes, Saint-Jacques de la Lande (Rennes), Perpignan, Hendaye, Le Mesnil-Amelot 2 and Toulouse-Cornebarrieu were thus “authorised to receive families”. The Cimade observed that there were flagrant discrepancies between the various administrative detention centres in terms of how families were actually catered for. The total lack of guidelines as to what was indispensable for a child precluded any harmonisation of the conditions of detention for families in the centres. The task was left to each centre’s director, whose responsibility it was to adapt the day-to-day management of the centre to the particular needs of a family with children, without having the support of staff specifically trained in education. ... D. Case-law 42. The domestic courts have given a number of rulings on the practice of placing children accompanying their parents in administrative detention pending removal. 1. Case-law of the ordinary courts 43. In an order of 23 October 2007 (no. 87/2007) the President of the Rennes Court of Appeal ruled on an appeal by the public prosecutor with a view to the annulment of an order by the liberties and detention judge concerning the release of a family with an infant. The public prosecutor had argued that the fact of holding them “on premises that were specially adapted to receive families did not constitute inhuman treatment”. The Court of Appeal upheld the first-instance order with the following reasoning: “even though it provides an area reserved for the ‘reception’ of families, the detention centre remains a place where aliens are detained pending their removal from France, for a maximum period of thirty-two days; in the present case, the fact of holding in such a place a young mother, her husband and their three-week-old baby constitutes inhuman treatment within the meaning of Article 3 of the European Convention on Human Rights on account, firstly, of the abnormal living conditions imposed on this very young child, virtually since birth, and secondly, of the great emotional and mental distress inflicted on the mother and father by detaining them with the infant, a distress which, by its nature and duration ..., exceeds the threshold of seriousness required for the above-mentioned provision to be engaged, and which, moreover, is manifestly disproportionate to the aim pursued, namely the couple’s removal ...” 44. In another order, this time of 29 September 2008 (no. 271/2008), the same Court of Appeal took the view that “even though it provides an area reserved for the reception of families, the detention centre remains a place of seclusion [and] the fact of holding in such a place a very young mother, her husband and their one-year-old baby constitutes inhuman treatment within the meaning of Article 3 of the European Convention on Human Rights”. That court further noted in particular that, for a family, such seclusion caused “great emotional and mental suffering” which “exceeded the threshold of seriousness for the purposes of the Convention”. In a decision of 10 December 2009 (Bulletin 2009, I, no. 250), the Court of Cassation quashed that order. It found that the reasons given by the Court of Appeal did not suffice for inhuman or degrading treatment to be established in the particular circumstances of the case. 45. In an order of 21 February 2008, the Toulouse Court of Appeal (no. 08/00088) ordered the immediate release of the appellants on the following grounds: “the fact of holding in such a place a young mother, her husband and their two-month-old baby constitutes inhuman treatment within the meaning of Article 3 of the European Convention on Human Rights on account, firstly, of the abnormal living conditions imposed on this very young child, virtually since birth, having been held in police custody with its mother, and secondly, of the great emotional and mental distress inflicted on the mother and father by the detention measure, a distress that is manifestly disproportionate to the aim pursued, namely the execution of the removal order ...” That decision was quashed by the Court of Cassation, which decided in a judgment of 10 December 2009 (Bulletin 2009, I, no. 249) as follows: “inhuman or degrading treatment is not constituted by the provisional holding in administrative detention of a family, made up of a man, a woman and their child of a few months’ old, pending the execution of an enforceable removal measure, where such deprivation of liberty has been lawfully ordered by a judicial authority, under its supervision, and is carried out in an area of the detention centre specially reserved for families, unless it is shown that the area is not adapted to the needs of family life or of human dignity.” 2. Administrative case-law 46. The GISTI and the Cimade applied to the Conseil d’Etat seeking the annulment of the decree of 30 May 2005 “in so far as it organised the placement in administrative detention of families, including minors, but their applications were rejected in a judgment of 12 June 2006 (no. 282275). Concerning the detention of families, it took the view that Article 14 of the decree in question did not have the purpose or effect of permitting the administrative authorities to decide on the deprivation of liberty of the families of individuals placed in detention, but that it sought only to provide for the reception of such families. The Conseil d’Etat thus concluded that the administrative authority was competent to make such arrangements, which were not in breach either of the CESEDA or of the New York Convention on the Rights of the Child. ... III. RELEVANT INTERNATIONAL LAW ... B. Council of Europe ... 3. Commissioner for Human Rights 56. Following his visit from 5 to 21 September 2005, the Commissioner for Human Rights published, on 15 February 2006, a report on “the effective respect for human rights in France” (CommDH(2006)2). He observed, concerning the detention of minors, that children should not be kept in an enclosed facility, offering little in the way of activities and few, if any, outings, and where conditions were precarious and their safety could not be guaranteed. He recommended that an alternative solution be proposed to families with children (§ 196). He noted in this connection that compulsory residence orders, which were provided for by law, were “little used” (§ 257). The Commissioner further observed that the placement of children in a detention centre was incompatible with the New York Convention and French law, which precluded the use of removal orders against minors. He found, however, that a legal vacuum made it possible to place children in detention centres and remove them, on the grounds of concern not to separate them from their families. In his view, the French authorities appeared to completely underestimate the legal and humanitarian problems posed by the presence of children in such centres (§ 255). He added, lastly, that in any event, no children should be detained on the grounds that their parents did not have the necessary papers to remain in France, especially “in places marked by overcrowding, dilapidation, promiscuity ( sic ) and very strong tensions” (§ 257). 57. In his report of 20 November 2008 (CommDH2008(34)) the Commissioner noted that “[n]otwithstanding the recommendation made in the 2006 report, an increasing number of children [were] placed in administrative holding centres with their parents”. He added that it was regrettable that such holding centres and waiting zones at the border were the only places in France where minors under the age of 13 were deprived of their liberty. He found, lastly, that the French authorities continued to underestimate the problems posed by the presence of children in holding centres and invited the authorities to place families in administrative detention only in cases of extreme necessity, so as to avoid causing children irreparable trauma. 4. European Committee for the Prevention of Torture (CPT) 58. Following its visit to numerous administrative detention centres in France (Palaiseau, Vincennes 1 and 2, Marseille, Toulouse-Blagnac 2 and Cornebarrieu), in 2006, the CPT raised with the Government the question of detaining families, and in particular any “accompanying” children, in such centres. It noted that this type of situation was not exceptional. In response to concerns about the conditions of accommodation, the French authorities acknowledged that “the current furnishings in the bedrooms [were] not always fully adapted to small children ...”. C. European Union 1. European Union legislation 59. On 16 December 2008 the Parliament and the Council of the European Union adopted Directive 2008/115/EC, known as the “Return Directive”, on common standards and procedures in Member States for returning illegally staying third-country nationals (Official Journal L. 348, 24 December 2008, pp. 0098 ‑ 0107). The relevant provision reads as follows: “(13) The use of coercive measures should be expressly subject to the principles of proportionality and effectiveness with regard to the means used and objectives pursued ...” 60. In Council Directive 2003/9/EC, the “Reception Directive”, adopted on 27 January 2003, the European Union gave the following definition of vulnerable persons particularly requiring the authorities’ attention: Chapter IV Provisions for persons with special needs Article 17 “General principle 1. ... minors, unaccompanied minors, disabled people, elderly people, pregnant women, single parents with minor children and persons who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence ...” Article 18 “Minors 1. The best interests of the child shall be a primary consideration for Member States when implementing the provisions of this Directive that involve minors. ...” 61. The European Union Charter of Fundamental Rights became binding with the entry into force of the Lisbon Treaty on 1 December 2009. Article 24 reads as follows: Article 24: The rights of the child “... 2. In all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration. ...” 2. Report commissioned by the European Parliament Committee on Civil Liberties, Justice and Home Affairs (LIBE) 62. In December 2007 the LIBE Committee published a study entitled: “The conditions in centres for third country national (detention camps, open centres as well as transit centres and transit zones) with a particular focus on provisions and facilities for persons with special needs in the 25 EU member states” (PE 393.275) analysing the implementation of the “reception” directive. The report’s authors found that minors were detained in the vast majority of EU States (France, Germany, Belgium, the United Kingdom, the Czech Republic, Slovakia, Portugal, Luxembourg, Spain, Latvia, Estonia, Ireland, Greece, Malta and Cyprus). The report presents an exhaustive study of the conditions of reception of vulnerable persons in EU member States. Austria appears to be the only State that never has recourse to detention for minors and Sweden limits it to seventy-two hours. Countries such as Belgium, France and the United Kingdom, however, have recourse to detention almost systematically for accompanied children. The report further shows that in spite of the existence of separate sections reserved for families with children and improved conditions (game rooms, toys, etc.), the fact remains that the lack of privacy, stressful living conditions, food, daily routine, negation of intimacy and the human and material environment are not adapted to children. The detention centre staff interviewed all felt that children should not be imprisoned in detention centres for the short or long term, because of the negative impact this traumatic experience could have on the children’s psychological balance, on their relations with their parents and on the image the children had of their parents whilst in detention. 63. In the part concerning France, the report noted a deterioration in the atmosphere in these secure centres and in particular a rise in the number of desperate acts committed, including physical assaults. It was also suggested that the improvement in physical conditions for families had the perverse effect of making this type of detention seem banal when the very principle of detaining them in this position could be questioned. The report’s authors added: “The presence of children in these places where they are deprived of their freedom, even if these are ‘family zones’ and they are kept here in order to keep families together, was particularly shocking for the study team”. THE LAW ... II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 70. The applicants complained of a violation of Article 3 of the Convention. ... Secondly, they alleged that their placement in administrative detention, from 27 August to 12 September 2007, in view of the conditions and duration of the detention, had been incompatible with the provisions of Article 3 of the Convention. That provision reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 71. The Court begins by finding that the two applications should be joined. ... B. The second aspect of the complaint alleging a violation of Article 3, on account of the conditions of administrative detention ... 2. Merits (a) The parties’ arguments 76. The applicants observed that foreign minors were accorded particular protection under the specific texts applicable to them, in particular the New York Convention on the Rights of the Child of 26 January 1990. 77. The applicants added that the Rouen-Oissel detention centre was overcrowded and dilapidated, with a lack of privacy and a high level of tension, especially for children, who could not comprehend the reasons for the detention. They explained that the centre reverberated with noise, as announcements were constantly being made via loud-speakers, thus exacerbating the feeling of stress and confinement. Despite the possibility of using some childcare facilities, a detention centre remained totally unsuitable for very small children. They added that in the accommodation block the bedroom windows were covered with a tight grill that completely obscured the view of the courtyard outside. 78. On their arrival, the applicants’ personal belongings had been taken by the police officers, including the baby’s milk. The bottle was returned to them only after they had negotiated with the officers. 79. The applicants had only been able to receive one visit from a family member, for ten minutes and without the children being present. The eldest daughter had refused to eat while in the centre and showed signs of anxiety and stress. The second applicant’s requests concerning her daughter’s dietary preferences had been denied and no exemption had been authorised in order to adapt the proposed meals to the child’s needs. On several occasions the police officers had threatened the child with “placement by a judge” and the second applicant had been told that she was a “bad mother”. 80. The applicants added that, as they had no spare clothing, they had been obliged to put on damp clothes after washing them. 81. They further argued that, in addition to the unsuitability of the conditions on the premises, the duration of their detention had been totally incompatible with their children’s best interests and their eldest daughter had found it particularly traumatic, resulting in eating disorders and considerable anxiety and stress during and after her stay in the centre. 82. The Government observed that the administrative detention of illegal immigrants awaiting removal did not suffice in itself to establish the existence of inhuman and degrading treatment. They explained that in principle it was not prohibited to detain children accompanied by their parents. They recognised that it was necessary to preserve the child’s interest when families were detained and consequently, once the legitimacy of the parents’ detention had been established, there could be no question of separating them from their children. 83. In this connection they explained that the placement of minors in detention centres with their parents was not systematic and that other solutions existed. Moreover, the applicants had been placed in administrative detention in a hotel in Angers before being transferred to the airport. It was only because their flight had been cancelled that they had then been placed in the Rouen-Oissel centre. 84. The Government wished to distinguish the present case, firstly, from that of Mubilanzila Mayeka and Kaniki Mitunga v. Belgium (no. 13178/03, ECHR 2006 ‑ XI), where the applicant had been an unaccompanied minor detained on her own; and, secondly, from the case of Muskhadzhiyeva and Others v. Belgium (no. 41442/07, 19 January 2010), where the Court had taken the view that the two eldest siblings were more vulnerable to the environment of the detention centre. Whilst in Muskhadzhiyeva and Others the children were aged seven months, three and a half, five and seven, in the present case the children were three years’ old and six months’ old. Applying the Court’s case-law, the Government argued that the age of the applicant children was such that they would have a limited perception of their environment. The Government noted that in Muskhadzhiyeva and Others the children’s psychological problems had been certified by doctors, one of them being diagnosed with “post-traumatic stress and showing an excess of anxiety far greater than that of children of her age”. They pointed out that it had been the combination of the children’s age and health, the length of the detention and the ill-adapted accommodation facilities that had led the Court to find the violation of Article 3 in that case. 85. The Government indicated that the authorities had deployed significant resources to improve the reception of families in detention. Rouen-Oissel was one of eleven centres that specifically catered for parents accompanied by their minor children. The Government explained that part of the centre was reserved for families, with family bedrooms containing facilities for children (childcare material and games). They did not dispute the fact that the windows were covered but pointed out that free access to the entire accommodation area, including indoor and outdoor yards, was possible between 7.30 a.m. and 10.30 p.m. 86. The Government observed that visits were in principle authorised from 10 a.m. to 11.30 a.m. and 2 p.m. to 5 p.m. and that these times could be extended for visitors travelling from afar. They were surprised by the applicants’ allegation that they had not enjoyed the right to receive visits. 87. The Government were also surprised by the allegation that police officers had proffered threats against the eldest child and noted that the accusations remained unsubstantiated. They further called into question the disorders from which the eldest child had allegedly suffered (refusal to eat, stress, anxiety) and wondered why the parents had not consulted the doctor on duty in the centre or used the infirmary. Moreover, they cast doubt on the alleged denial of the request for an exemption to adapt meals to the child’s needs. Article 13 of the internal rules provided for special menus, especially for reasons of age or health, thus applicable to very small children. In addition, the Government pointed out that families did not take their meals with the other individuals in the centre. 88. As regards the length of the detention, the Government observed that it was strictly governed by law and that the lawfulness of any placement in detention was reviewed by a judge. In addition, the length of the detention in the present case had been relatively short compared to that observed in the cases of Mubilanzila Mayeka and Kaniki Mitunga and Muskhadzhiyeva and Others, cited above. (b) The Court’s assessment (i) General principles 89. Concerning the general principles that are applicable in the area of administrative detention, the Court would refer to paragraph 48 of the Mubilanzila Mayeka and Kaniki Mitunga judgment, cited above. 90. As regards minors, more specifically, the Court observes that the international Convention on the Rights of the Child provides in Article 37 that “[e]very child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age”. Concerning the confinement of foreign minors, the Court has already had occasion to rule on the detention of children in custodial facilities pending their removal. In the case of Rahimi v. Greece (no. 8687/08, §§ 85-86, 5 April 2011), the Court found, in respect of an unaccompanied minor in such a facility, that the conditions of his detention were so poor that they undermined the very essence of human dignity and that they could be regarded in themselves, without taking into consideration the length of the detention, as degrading treatment in breach of Article 3 of the Convention. The Court also found a violation of Article 3 in the Muskhadzhiyeva and Others judgment (cited above, § 63) concerning four young children who were held, accompanied by their mother, for one month pending their removal. (ii) Application to the present case (α) In respect of the children 91. The Court observes that in the present case, as in Muskhadzhiyeva and Others, the applicant children were accompanied by their parents throughout the period of detention. It finds, however, that this fact is not capable of exempting the authorities from their duty to protect children and take appropriate measures as part of their positive obligations under Article 3 of the Convention (ibid., § 58) and that it is important to bear in mind that the child’s extreme vulnerability is the decisive factor and takes precedence over considerations relating to the status of illegal immigrant (see Mubilanzila Mayeka and Kaniki Mitunga, cited above, § 55). The European Union directive concerning the reception of aliens thus treats minors, whether or not they are accompanied, as a category of vulnerable persons particularly requiring the authorities’ attention (see paragraph 42 above). To be sure, children have specific needs that are related in particular to their age and lack of independence, but also to their asylum-seeker status. The Court would, moreover, observe that the Convention on the Rights of the Child encourages States to take the appropriate measures to ensure that a child who is seeking to obtain refugee status enjoys protection and humanitarian assistance, whether the child is alone or accompanied by his or her parents (see, mutatis mutandis, Muskhadzhiyeva and Others, § 62). 92. The Court notes that during the period of detention in question, the applicant children were aged five months and three years, respectively. They were held for fifteen days at the Rouen-Oissel detention centre. 93. As regards the conditions of detention, the Court found that the Rouen-Oissel detention centre was among those “authorised” to receive families by the decree of 30 May 2005 (see paragraph 32 above). However, the Court observes that this text merely mentions the need to provide “bedrooms that are specially adapted, in particular for childcare” but does not expressly list the facilities required for the accommodation of families. Thus there are major discrepancies between the various centres in terms of the facilities provided, each centre’s director being responsible for such matters and free to take decisions, without having the support of staff specifically trained in education (see paragraph 32 above). 94. The applicants described the Rouen-Oissel centre as overcrowded and dilapidated, with a lack of privacy. The detainees lived in constant fear of being deported, thus exacerbating tension that was already acute ... 95. It can be seen from the reports of visits to the Rouen-Oissel centre ... that whilst the authorities had been careful to separate families from other detainees, the facilities available in the “families” area of the centre were nevertheless ill-adapted to the presence of children: no children’s beds and adult beds with pointed metal corners, no activities for children, a very basic play area on a small piece of carpet, a concreted courtyard of 20 sq.m. with a view of the sky through wire netting, a tight grill over the bedroom windows obscuring the view outside, and automatically closing bedroom doors with consequent danger for children. 96. The Commissioner for Human Rights and the CPT also raised the question of administrative detention centres being unsuited to the accommodation of families and to the needs of children, taking the view that, in addition to the ill-adapted material conditions, the lack of privacy, stress, insecurity and hostile environment in such centres also had harmful consequences for minors, at odds with the international principles on the protection of children. In response to this criticism, the French authorities acknowledged, in 2006, that the furnishings in family rooms were not always adapted to infants (see paragraphs 38 to 40 above). 97. The Court notes that such findings have also been made by certain appellate courts, which in various rulings have observed that confinement in conditions such as those in the present case caused “great emotional and mental suffering” to minors, and that the “abnormal living conditions” imposed on very small children “exceeded the threshold of seriousness for the purposes of Article 3 of the Convention” (see paragraphs 34 to 36 above). Having regard to the foregoing, the Court is of the opinion that the conditions in which the applicant children were held were not adapted to their age. 98. The Court reiterates that the detention of an alien must be carried out in good faith and the length of the detention should not exceed that reasonably required for the purpose pursued (see, mutatis mutandis, Saadi v. the United Kingdom [GC], no. 13229/03, § 74, ECHR 2008). The Court observes that the various international texts recommend that the authorities should be required to implement all necessary means to limit, as far as possible, the duration of the detention of minors ... 99. Domestic law stipulates that the length of detention for aliens pending removal should be limited to the time strictly necessary to organise their departure ... 100. In the present case, the Court finds that the length of detention of the children, over a period of fifteen days, whilst not excessive per se, could be perceived by them as never-ending, bearing in mind that the facilities were ill-adapted to their accommodation and age. 101. In addition, the applicants maintained that detention in this ill-adapted centre had subjected the children, especially the eldest, to a situation of stress that had entailed mental distress. The Court would observe, like the Government, that these allegations by the applicants have not been corroborated by any evidence. However, in view of its findings as to the unsuitability of the premises for the detention of children, the Court does not doubt that this situation created anxiety, psychological disturbance and degradation of the parental image in the eyes of the children. 102. It can be seen from the foregoing that the conditions in which the children were held, for fifteen days, in an adult environment, faced with a strong police presence, without any activities to keep them occupied, added to the parents’ distress, were manifestly ill-adapted to their age. The two children, a small girl of three and a baby, found themselves in a situation of particular vulnerability, accentuated by the confinement. Those living conditions inevitably created for them a situation of stress and anxiety, with particularly traumatic consequences. 103. Accordingly, in view of the children’s young age, the length of their detention and the conditions of their confinement in a detention centre, the Court is of the view that the authorities failed to take into account the inevitably harmful consequences for the children. It finds that the authorities’ treatment of the children was not compatible with the provisions of the Convention and exceeded the threshold of seriousness for Article 3 of the Convention to be engaged. There has therefore been a violation of that Article in respect of the children. (β) In respect of the parents 104. The Court would reiterate that the issue whether a parent qualifies as a “victim” of the ill-treatment of his or her child will depend on the existence of special factors which give the applicant’s suffering a dimension and character distinct from the emotional distress which may be regarded as inevitably caused to relatives of a victim of a serious human rights violation. Relevant elements will include the proximity of the family tie – in that context, a certain weight will attach to the parent-child bond – the particular circumstances of the relationship and the way in which the authorities responded to the parent’s enquiries. The essence of such a violation lies in the authorities’ reactions and attitudes to the situation when it is brought to their attention. It is especially in respect of this latter factor that a parent may claim directly to be a victim of the authorities’ conduct (see Mubilanzila Mayeka and Kaniki Mitunga, cited above, § 61, and Muskhadzhiyeva and Others, cited above, § 64). 105. As in the case of Muskhadzhiyeva and Others, the Court finds that, whilst the administrative detention of the applicants with their children in a centre could have created a feeling of powerlessness, together with anxiety and frustration, the fact that they were not separated from their children during the detention must have provided some degree of relief from those feelings, such that the threshold required for a violation of Article 3 has not been reached. Accordingly, there has been no violation of Article 3 of the Convention in respect of the parents. III. ALLEGED VIOLATION OF ARTICLE 5 § 1 (f) AND 5 § 4 OF THE CONVENTION 106. The applicants argued that their administrative detention from 27 August to 12 September 2007 had taken place in conditions and for a duration that entailed a breach of Article 5 § 1 (f). The present case also raises an issue under Article 5 § 4. Those provisions read as follows: “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition. ... 4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” ... 2. Merits (a) The parties’ submissions 108. The applicants noted that a measure of removal or placement in detention could not, in principle, be taken against minors. As the measure concerned the parents and not the children themselves, the detention of children therefore had no legal basis or safeguards. 109. They added that the alternative of entrusting children to the care of a third party, as mentioned by the Government, was only a theoretical possibility as it would inevitably entail the separation of families for an indefinite duration. The applicants inferred that, for this reason, detention was not reasonably necessary. 110. The Government did not dispute the fact that the administrative detention of illegal immigrants constituted a restriction on their freedom of movement. They observed, however, that in the present case the detention had been imposed in a context of deportation, a situation that was provided for in Article 5 § 1 (f) of the Convention. The Government argued that administrative detention was prescribed by law and strictly supervised in domestic law. They were of the opinion that the French law on administrative detention had the “necessary qualities” and sufficient safeguards to preclude any risk of arbitrariness. 111. As regards the status of minors accompanying their parents, the Government pointed out that in the cases of Mubilanzila Mayeka and Kaniki Mitunga and Muskhadzhivyeva and Others, cited above, the Court took the view that the detention of minors in the context of Article 5 § 1 (f) was not unlawful per se provided there was some relationship between the ground of permitted deprivation of liberty relied on and the place and conditions of detention. They recognised, however, that in the present case, the minor applicants had not been placed in detention on a personal basis and that minors were usually protected against any removal measure. The Government explained that this restriction did not, however, prevent a minor from accompanying his or her parents in the detention centre when they were affected by a measure of removal. 112. The Government added that parents placed in detention could always opt for the alternative of entrusting their children to the care of third parties. They insisted that, in any event, the Rouen-Oissel centre was specifically adapted to the children’s situation of vulnerability on account of their status and that their detention was thus compliant with the provisions of the Convention. 113. As to whether the applicants had a remedy, in accordance with Article 5 § 4 of the Convention, through which they could challenge the lawfulness of their detention, the Government observed that any individual who was placed in administrative detention by order of the prefect was entitled to challenge that decision before the administrative courts. During the detention, the liberties and detention judge reviewed its lawfulness after forty-eight hours and again after fifteen days. As regards the particular case of children who were not entitled to challenge a measure of detention that was not directed against them personally, the Government explained that parents could use such remedies on behalf of their minor children. 114. The Government observed that the liberties and detention judge of the Rouen tribunal de grande instance had ordered, on 29 August 2007, an extension of the detention for fifteen days, a decision that was upheld by the Rouen Court of Appeal on 30 August 2007. The ordinary courts had thus found that the applicants’ detention for the period in question was not excessive within the meaning of Article 5 of the Convention. (b) The Court’s assessment 115. The Court observes that the period under consideration, during which the applicants were placed in an administrative detention centre, lasted from 28 August to 12 September 2007. (i) Article 5 § 1 (f) of the Convention 116. The Court reiterates that all that is required for detention to be compatible with Article 5 § 1 (f) is that action is being taken with a view to deportation and that the detention is carried out for the purposes of enforcing the measure. It is therefore immaterial whether the underlying decision to expel can be justified under national or Convention law, or whether the detention was reasonably considered necessary, for example to prevent the person concerned from committing an offence or fleeing. Deprivation of liberty under Article 5 § 1 (f) will be justified only for as long as deportation proceedings are in progress (see Chahal v. the United Kingdom, 15 November 1996, §§ 112-113, Reports of Judgments and Decisions 1996 ‑ V). 117. Whilst the general rule set out in Article 5 § 1 is that everyone has the right to liberty, Article 5 § 1 (f) provides an exception to that general rule, permitting States to control the liberty of aliens in an immigration context. As the Court has remarked before, subject to their obligations under the Convention, States enjoy an “undeniable sovereign right to control aliens’ entry into and residence in their territory” (see Chahal, cited above, § 73, and Saadi, cited above, § 64). 118. It is well established in the Court’s case-law under the sub-paragraphs of Article 5 § 1 that any deprivation of liberty must, in addition to falling within one of the exceptions set out in sub-paragraphs (a)-(f), be “lawful” (see, among other authorities, Winterwerp v. the Netherlands, 24 October 1979, § 37, Series A no. 33; Amuur, cited above, § 50; and Witold Litwa v. Poland, no. 26629/95, § 78, ECHR 2000 ‑ III). The Court has already stated, in two cases concerning similar facts, that there must be some relationship between the ground of permitted deprivation of liberty relied on and the place and conditions of detention (see Mubilanzila Mayeka and Kaniki Mitunga, cited above, § 102, and Muskhadzhivyeva and Others, cited above, § 73); lastly, the length of the detention should not exceed that reasonably required for the purpose pursued (see Saadi, cited above, § 74, and Rahimi, cited above, § 106). 119. In the present case, the members of the family were held in administrative detention on account of the illegality of their presence in France, on premises that were not adapted to the children’s extreme vulnerability (see paragraphs 66 et seq. above). The Court finds, as in the above-cited case of Muskhadzhivyeva and Others, that, in spite of the fact that they were accompanied by their parents, and even though the detention centre had a special wing for the accommodation of families, the children’s particular situation was not examined and the authorities did not verify that the placement in administrative detention was a measure of last resort for which no alternative was available. The Court thus finds that the French system did not sufficiently protect their right to liberty. 120. As regards the parents, however, the Court observes that Article 5 § 1 (f) does not demand that the detention of a person against whom action is being taken with a view to deportation be reasonably considered necessary (see Chahal, cited above, § 112). 121. Consequently, the Court finds that there has been a violation of Article 5 § 1 (f) of the Convention in respect of the children. (ii) Article 5 § 4 of the Convention 122. The Court reiterates that the notion of “lawfulness” under paragraph 4 of Article 5 has the same meaning as in paragraph 1, such that the detained person is entitled to a review of his detention in the light not only of the requirements of domestic law but also of the text of the Convention, the general principles embodied therein and the aim of the restrictions permitted by Article 5 § 1. Article 5 § 4 does not guarantee a right to judicial review of such breadth as to empower the court, on all aspects of the case including questions of pure expediency, to substitute its own discretion for that of the decision-making authority. The review should, however, be wide enough to bear on those conditions which are essential for the lawful detention of a person according to Article 5 § 1 (see Chahal, cited above, § 127; S.D. v. Greece, no. 53541/07, § 72, 11 June 2009; and Rahimi, cited above, § 113). 123. The Court observes that the applicant parents were able to challenge their detention before the domestic courts: they applied to the administrative court for the annulment of the decision imposing on them an obligation to leave the country and then, during the period of administrative detention, the liberties and detention judge and the Court of Appeal ruled on the lawfulness of the detention. In this connection, the Court notes that on 12 September 2007 the liberties and detention judge decided that the failure to enforce the applicants’ removal could not be attributed to them and annulled the detention. The Court cannot but infer from this that the parents had the possibility of using a remedy by which to obtain a decision on the lawfulness of their detention. There has not therefore been a violation of Article 5 § 4 in respect of the parents. 124. However, the Court notes that the law does not provide for the possibility of placing minors in administrative detention. As a result, children “accompanying” their parents find themselves in a legal vacuum, preventing them from using any remedies available to their parents. In the present case, there had been no order of the prefect for their removal that they could have challenged before the courts. Similarly, there had been no decision ordering their placement in administrative detention and the liberties and detention judge was therefore unable to review the lawfulness of their presence in the administrative detention centre. The Court thus finds that they were not guaranteed the protection required by the Convention. 125. Accordingly, there has been a violation of Article 5 § 4 of the Convention in respect of the children. IV. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 126. The applicants complained, firstly, that the order for their removal to Kazakhstan had constituted a disproportionate interference with their right to a private and family life. They argued, secondly, that their placement in detention had not been a necessary measure in relation to the aim pursued and that the conditions and duration of their detention had constituted a disproportionate interference with their right to a private and family life. They relied on Article 8 of the Convention, which reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” ... B. The second head of the complaint ... 2. Merits (a) The parties’ submissions 130. The applicants argued that no aim could justify their placement in detention and that the measure had been disproportionate. They pointed out that they had provided sufficient guarantees that they would not abscond and could have been ordered to reside at a specific address; and whilst there was no question of separating parents from their children in the case of placement in detention, a compulsory residence order would nevertheless, in the present case, have been better suited to their situation. 131. The Government observed that the applicants had enjoyed material conditions of reception adapted to families and had been accommodated on premises that catered specially for that purpose. They further noted that the present case did not raise any issue of family reunification. (b) The Court’s assessment 132. The Court finds that there is no doubt as to the existence of “family life”, within the meaning of the Marckx v. Belgium case-law (13 June 1979, Series A no. 31), in the present case, and this has not in fact been disputed by the Government. Article 8 is thus applicable to the situation complained of by the applicants. 133. The Court reiterates that the essential object of Article 8 is to protect the individual against arbitrary action by public authorities and this creates positive obligations inherent in effective “respect” for family life (see Maire v. Portugal, no. 48206/99, § 69, ECHR 2003 ‑ VII). States are under an obligation to “act in a manner calculated to allow those concerned to lead a normal family life” (see Marckx, cited above, § 31). 134. The Court is of the opinion that whilst mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life (see Olsson v. Sweden (no. 1), 24 March 1988, § 59, Series A no. 130), it cannot be inferred from this that the sole fact that the family unit is maintained necessarily guarantees respect for the right to a family life, particularly where the family is detained. It finds that the fact of confining the applicants to a detention centre, for fifteen days, thereby subjecting them to custodial living conditions typical of that kind of institution, can be regarded as an interference with the effective exercise of their family life. 135. Such an interference entails a violation of Article 8 of the Convention unless it can be justified under paragraph 2 of that Article, that is, if it is “in accordance with the law”, pursues one or more of the aims enumerated in that provision, and is “necessary in a democratic society” for the fulfilment of the said aim or aims. 136. The Court observes that the legal basis for the detention of the parents was Article L. 554 ‑ 1 of the Entry and Residence of Aliens and Right of Asylum Code (CESEDA). 137. As regards the aim pursued by the measure in question, the Court observes that it was taken in the context of the prevention of illegal immigration and the control of the entry and residence of aliens. The decision could have been in the interests of national security or the economic well-being of the country or, just as equally, intended to prevent disorder or crime. The Court therefore concludes that the interference pursued a legitimate aim for the purposes of Article 8 § 2 of the Convention. 138. The Court must further determine whether the family’s placement in detention, for a duration such as that in the present case, was necessary within the meaning of Article 8 § 2 of the Convention, that is to say, whether it was justified by a pressing social need and, in particular, proportionate to the legitimate aim pursued (see Mubilanzila Mayeka and Kaniki Mitunga, cited above, § 80). 139. The Court would observe in this connection that the authorities have a duty to strike a fair balance between the competing interests of the individual and of society as a whole (see Keegan v. Ireland, 26 May 1994, § 49, Series A no. 290). It emphasises that this balance should be guaranteed taking account of international conventions, in particular the Convention on the Rights of the Child (see, mutatis mutandis, Wagner and J.M.W.L. v. Luxembourg, no. 76240/01, § 120, 28 June 2007). The protection of fundamental rights and the constraints imposed by a State’s immigration policy must therefore be reconciled. 140. A measure of confinement must therefore be proportionate to the aim pursued by the authorities, namely the enforcement of a removal decision in the present case. It can be seen from the Court’s case-law that, where families are concerned, the authorities must, in assessing proportionality, take account of the child’s best interests. In this connection the Court would point out that there is currently a broad consensus – including in international law – in support of the idea that in all decisions concerning children, their best interests must be paramount (see Rahimi, cited above, § 108, and, mutatis mutandis, Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 135, ECHR 2010). 141. Under the international Convention on the Rights of the Child (Article 3) the best interests of the child must be a primary consideration in all actions concerning children. Similarly, the “reception” directive (see paragraph 42 above), as transposed in the CESEDA legislation, provides expressly that member States must ensure that the child’s best interest is a primary consideration. It can also be seen from international reports (see above, under relevant international law) that the protection of the child’s best interests involves both keeping the family together, as far as possible, and considering alternatives so that the detention of minors is only a measure of last resort ... 142. The Court notes that the French practice of keeping families pending their deportation in detention centres has been criticised and that France is one of only three European countries which systematically have recourse to the detention of accompanied immigrant minors (see the report of the LIBE Committee, paragraph 44 above). 143. The Court further observes that since 1999 the UNHCR has invited States to study all alternatives to detention in the case of children accompanying their parents and to have recourse to detention only where there is no other means of keeping the family together ... 144. The Court notes, lastly, that the CNDS (National Commission for Ethics and Security) and the Défenseur des enfants (Children’s Defender) have, on various occasions, criticised the detention of children who have not committed any criminal offence, whether or not they are accompanied, calling for their best interests to be upheld. In their view, when the parents of minors are awaiting removal, a compulsory residence measure, or failing that, rented hotel accommodation, should be considered as a priority ... 145. In the present case, the applicants did not present any risk of absconding that required their detention. Their confinement in a secure centre did not therefore appear justified by a pressing social need, especially as their compulsory residence in a hotel during the first phase of their administrative detention does not seem to have caused any problems. 146. The Court finds that there is no indication in the material transmitted by the Government that any alternative to detention was envisaged, whether a compulsory residence measure or, as decided by the Maine-et-Loire prefecture, confinement in hotel accommodation (see paragraph 19 above). Neither does it appear that the authorities ever re-examined the possibility of confinement outside a detention centre during the period in question. Lastly, it does not appear from the facts of the case that the authorities took all the necessary steps to enforce the removal measure as quickly as possible and thus limit the time spent in detention. The applicants were held for fifteen days without any flight being arranged for them. 147. The Court is aware that a similar complaint was previously declared inadmissible, concerning the detention of four children with their mother for a period of one month, with no alternative to detention having been envisaged (see Muskhadzhivyeva and Others, cited above). However, in view of the foregoing and the recent developments in the case-law concerning the “child’s best interests” in the context of the detention of immigrant minors (see Rahimi, cited above), the Court cannot agree with the arguments of the Government claiming that the children’s best interests were upheld in the present case. The Court is of the view that the child’s best interests cannot be confined to keeping the family together and that the authorities have to take all the necessary steps to limit, as far as possible, the detention of families accompanied by children and effectively preserve the right to family life. In the absence of any indication to suggest that the family was going to abscond, the measure of detention for fifteen days in a secure centre appears disproportionate to the aim pursued. 148. Accordingly, the Court finds that the applicants sustained a disproportionate interference with their right to respect for their family life and that there has been a violation of Article 8 of the Convention. ... | The Court held that there had been a violation of article 8 (right to respect for private and family life) of the Convention in respect of the children and their parents. It firstly observed that the interference with the applicants’ family life because of their two-week detention at the centre had been in accordance with the French Code governing the entry and residence of foreigners and the right of asylum, and pursued the legitimate aim of combating illegal immigration and preventing crime. Then, referring to the broad consensus, particularly in international law, that the children’s interests were paramount in all decisions concerning them, the Court noted that France was one of the only three European countries that systematically had accompanied minors placed in detention. In the present case, as there had been no particular risk of the applicants absconding, their detention had not been justified by any pressing social need, especially considering that their placement in a hotel in August 2007 had posed no problem. Yet the French authorities did not appear to have sought any solution other than detention, or to have done everything in their power to have the removal order enforced as promptly as possible. Lastly, after recalling that, in the case of Muskhadzhiyeva and Others v. Belgium (see above, under “Conditions of detention” and “Right to liberty and security”), it had rejected a complaint similar to the applicants’, the Court considered, however, considering the above factors and the recent case-law developments concerning “the child’s best interests” in the context of the detention of child migrants5, that the child’s best interests called not only for families to be kept together but also for the detention of families with young children to be limited. In the applicants’ circumstances, the Court found that two weeks’ detention in a closed facility was disproportionate to the aim pursued. |
716 | Right to strike | II. RELEVANT DOMESTIC LAW AND PRACTICE 18. In relation to the EDF case, Blake J referred to the following provisions of the Trade Union and Labour Relations (Consolidation) Act 1992 (“the 1992 Act”) : Section 226 “ (1) An act done by a trade union to induce a person to take part, or continue to take part, in industrial action (a) is not protected unless the industrial action has the support of a ballot, and (b) where section 226A falls to be complied with in relation to the person ’ s employer, is not protected as respects the employer unless the trade union has complied with section 226A in relation to him.” Section 226A “ (1) The trade union must take such steps as are reasonably necessary to ensure that— (a) not later than the seventh day before the opening day of the ballot, the notice specified in subsection (2), ... is received by every person who it is reasonable for the union to believe (at the latest time when steps could be taken to comply with paragraph (a)) will be the employer of persons who will be entitled to vote in the ballot. (2) The notice referred to in paragraph (a) of subsection (1) is a notice in writing— (a) stating that the union intends to hold the ballot, (b) specifying the date which the union reasonably believes will be the opening day of the ballot, and (c) containing — ( i ) the lists mentioned in subsection (2A) and the figures mentioned in subsection (2B), together with an explanation of how those figures were arrived at, or ... (2A) The lists are— (a) a list of the categories of employee to which the employees concerned belong, and (b) a list of the workplaces at which the employees concerned work. (2B) The figures are— (a) the total number of employees concerned, (b) the number of the employees concerned in each of the categories in the list mentioned in subsection (2A)(a), and (c) the number of the employees concerned who work at each workplace in the list mentioned in subsection (2A)(b). ... (2D) The lists and figures supplied under this section, or the information mentioned in subsection (2C) that is so supplied, must be as accurate as is reasonably practicable in the light of the information in the possession of the union at the time when it complies with subsection (1)(a).” 19. In relation to the Hydrex situation, the statutory protection against liability in tort regarding acts done “in contemplation or furtherance of a trade dispute” (section 219 of the 1992 Act) is confined, by section 244 of the same Act, to “a dispute between workers and their employer”. Secondary action is expressly excluded from statutory protection by section 224 of the Act, which defines it as follows: “(2) There is secondary action in relation to a trade dispute when, and only when, a person— (a) induces another to break a contract of employment or interferes or induces another to interfere with its performance, or (b) threatens that a contract of employment under which he or another is employed will be broken or its performance interfered with, or that he will induce another to break a contract of employment or to interfere with its performance, and the employer under the contract of employment is not the employer party to the dispute.” The provisions on peaceful picketing are contained in section 220 of the Act, which provides: “(1) It is lawful for a person in contemplation or furtherance of a trade dispute to attend— (a) at or near his own place of work, or (b) if he is an official of a trade union, at or near the place of work of a member of the union whom he is accompanying and whom he represents, for the purpose only of peacefully obtaining or communicating information, or peacefully persuading any person to work or abstain from working. (2) If a person works or normally works— (a) otherwise than at any one place, or (b) at a place the location of which is such that attendance there for a purpose mentioned in subsection (1) is impracticable, his place of work for the purposes of that subsection shall be any premises of his employer from which he works or from which his work is administered.” 20. Both parties referred to the previous legislative regime, which included secondary action in the scope of the statutory protection. The Government explained that secondary action was first outlawed by the Trade Disputes and Trade Unions Act 1927, adopted in the aftermath of the general strike of 1926. The situation changed with the Trade Disputes and Trade Unions Act 1946, which lifted the ban. 21. Further reforms occurred in the 1970s. The Trade Union and Labour Relations Act 1974 afforded substantially broader protection to industrial action than is the case at present. It provided at section 13(1) (as amended in 1976): “An act done by a person in contemplation or furtherance of a trade dispute shall not be actionable in tort on the ground only— (a) that it induces another person to break a contract or interferes or induces any other person to interfere with its performance; or. (b) that it consists in his threatening that a contract (whether one to which he is a party or not) will be broken or its performance interfered with, or that he will induce another person to break a contract or to interfere with its performance.” 22. This provision was considered by the House of Lords in the case of Express Newspapers Ltd v. McShane and another ([1980] AC 672). The case involved secondary action in the newspaper industry, led by the National Union of Journalists. The majority of the House held that the test to be applied to determine whether an act enjoyed the protection of section 13(1) was a subjective one, that is to say, it was sufficient that the person honestly believed that the act in question might further the cause of those taking part in the dispute. The genuineness of such belief could be tested by the courts, but the person calling the strike did not need to prove that it was reasonably capable of achieving the objective. Lord Wilberforce dissented on the nature of the test, but concurred with the finding that the injunction granted against the union should be discharged. 23. Although the applicant union maintained that the McShane judgment was not a significant development in the law, in that it merely confirmed the interpretation of clear statutory language, the case was referred to during the parliamentary debates leading to the passage of the Employment Act 1980 as one of the reasons for introducing restrictions on secondary action (in section 17 of that Act). The 1980 Act retained immunity for secondary action provided that three conditions were satisfied: ( i ) that it was taken against first suppliers or customers of the employer in dispute or against associated employers of the employer which were substituting for it during the dispute; (ii) that its principal purpose was to directly prevent or disrupt the supply of goods or services between the employer in dispute and his supplier or customer during the dispute; and (iii) that it was likely to achieve that purpose. 24. The current rule was originally introduced by the Employment Act 1990, and then re-enacted in the 1992 Act in the terms set out above. 25. The parties provided statistical information on the number of days lost to industrial action in the United Kingdom, going back to the 1970s. The Government pointed out that in that decade, the average number of days lost each year was 12.9 million. This decreased in the 1980s to an average of 7.2 million days. From the early 1990s to the present day, the figure is much lower, standing at 700,000 days lost per year on average. They attributed part of this decline at least to the ban on secondary action. The applicant union disputed that interpretation. It noted that the available statistics did not distinguish between primary and secondary strikes. It was therefore impossible to identify the true extent of secondary action before 1980 and, consequently, impossible to ascertain the impact of the restrictions introduced in 1980 and 1990. In the applicant union ’ s view, secondary action had been relatively rare, the overwhelming majority of strikes at that time had been primary strikes. It referred to official figures (contained in a Government publication, the “Employment Gazette”) indicating that, since the 1960s, the United Kingdom was consistently close to the European average for days lost to industrial action. According to this source, the country had been middle-ranking since the end of the 1970s. The only exception was for 1984, on account of the long and widespread strike in the mining industry that year. The Government submitted that the comparative statistics needed to be interpreted with caution, given the profound transformation of Europe over the past twenty years. The fact that the United Kingdom remained close to the European average in this regard indicated that, contrary to the applicant union ’ s point of view, the rules on industrial action were not so restrictive as to make it excessively difficult to organise strikes. III. RELEVANT INTERNATIONAL LAW 26. In support of its application, the applicant union included references to other international legal instruments, and the interpretation given to them by the competent organs. The most relevant and detailed of these materials are referred to below. A. International Labour Organization Conventions 27. While there is no provision in the Conventions adopted by the International Labour Organization (ILO) expressly conferring a right to strike, both the Committee on Freedom of Association and the Committee of Experts on the Application of Conventions and Recommendations ( “ the Committee of Experts”) have progressively developed a number of principles on the right to strike, based on Articles 3 and 10 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) (summarised in “ Giving globalization a human face ”, International Labour Office, 2012, § 117). This Convention was ratified by the United Kingdom on 27 June 1949. 1. Concerning notice requirements 28. The Committee of Experts has commented several times upon the notice requirements for industrial action in the United Kingdom. The applicant union referred to the following statement, adopted in 2008: “In its previous comments, the Committee had taken note of comments made by the TUC to the effect that the notice requirements for an industrial action to be protected by immunity were unjustifiably burdensome. The Committee notes that according to the Government, a number of measures have already been taken to simplify sections 226 - 235 of the TULRA and 104 - 109 of the 1995 Order; moreover, as part of a plan published in December 2006 to simplify aspects of employment law, the Government explicitly invited trade unions to come forward with their ideas to simplify trade union law further. Since then, the Government has held discussions with the TUC to examine their ideas to simplify aspects of the law on industrial action ballots and notices. These discussions are ongoing. The Committee notes that in its latest comments, the TUC notes that there has been no progress in this reform. The Committee requests the Government to indicate in its next report progress made in this regard .” [1] 29. More recently, in a direct request to the Government of the United Kingdom, the Committee of Experts stated: “ In its previous comments, the Committee had taken note of comments made by the Trade Union Congress (TUC) to the effect that the notice requirements for an industrial action to be protected by immunity were unjustifiably burdensome. The Committee requested the Government to continue to provide information on any developments, as well as any relevant statistics or reports on the practical application and effect of these requirements. The Committee notes the Government ’ s indication that the Court of Appeal decision in RMT v. Serco and in ASLEF v. London Midland (2011) EWCA 226, overturned injunctions which had been obtained by Serco and London Midland Railway against the two main national transport unions, the RMT and ASLEF. In both cases, the injunctions had been obtained on the basis of the unions ’ breaches of statutory balloting and notification procedures. This case was the latest in a series of cases assessing the extent of unions ’ technical obligations to ensure that a fair balloting process had taken place. In the RMT v. Serco decision, the Court of Appeal issued some key clarification so that in future it is likely to be more difficult for employers to obtain injunctions to prevent strike action as a result of breaches of the balloting and notice requirements. A Court of Appeal decision is binding on all lower courts. Subsequent to this case, in Balfour Beatty v. Unite (2012) EWHC 267 (QB), the Court found against Balfour Beatty, taking account of the Serco case and the need to strike a balance between striving for democratic legitimacy and imposing unrealistic burdens on unions and their officers. The Committee notes the TUC ’ s observation that, while it greatly welcomes both decisions, it considers that they do not fully address the problems arising under the legislation that it has identified and that the legislation continues to impose intolerable demands on trade unions. The Committee notes these developments with interest and requests the Government to provide its comments on the concerns raised by the TUC. ” [2] 2. Concerning secondary action 30. The Committee of Experts has taken the following view ( see “ Giving globalization a human face ”, § 125) : “With regard to so-called ‘ sympathy ’ strikes, the Committee considers that a general prohibition of this form of strike action could lead to abuse, particularly in the context of globalization characterized by increasing interdependence and the internationalization of production, and that workers should be able to take such action, provided that the initial strike they are supporting is itself lawful.” 31. The Committee on Freedom of Association also considers this form of industrial action to be protected by international labour law ( see “ Freedom of Association ”, Digest of the decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO, Fifth (revised) edition, International Labour Office, 2006) : “ 534. A general prohibition of sympathy strikes could lead to abuse and workers should be able to take such action provided the initial strike they are supporting is itself lawful. ... 538. A ban on strike action not linked to a collective dispute to which the employee or union is a party is contrary to the principles of freedom of association. ” 32. In its consideration of the United Kingdom ’ s observance of Convention No. 87, the Committee of Experts has repeatedly criticised the fact that secondary strikes are illegal. The initial criticism was included in its 1989 [3] observation concerning the United Kingdom: “The Committee notes that the common law renders virtually all forms of strikes or other industrial action unlawful as a matter of civil law. This means that workers and unions who engage in such action are liable to be sued for damages by employers (or other parties) who suffer loss as a consequence, and (more importantly in practical terms) may be restrained from committing unlawful acts by means of injunctions (issued on both an interlocutory and a permanent basis). It appears to the Committee that unrestricted access to such remedies would deny workers the right to take strikes or other industrial action in order to protect and to promote their economic and social interests. It is most important, therefore, that workers and unions should have some measure of protection against civil liability. There has been legislative recognition of this imperative since 1906 in the form of a series of ‘ immunities ’ (or, more accurately, ‘ protections ’ ) against tort action for trade unions and their members and officials. The current version of the ‘ immunities ’ is to be found in the Trade Union and Labour Relations Act 1974. The scope of these protections has been narrowed in a number of respects since 1980. The Committee notes, for example, that section 15 of the 1974 Act has been amended so as to limit the right to picket to a worker ’ s own place of work or, in the case of a trade union official, the place of work of the relevant membership, whilst section 17 of the 1980 Act removes protection from ‘ secondary action ’ in the sense of action directed against an employer who is not directly a party to a given trade dispute. In addition, the definition of ‘ trade dispute ’ in section 29 of the 1974 Act has been narrowed so as to encompass only disputes between workers and their own employer, rather than disputes between ‘ employers and workers ’ or ‘ workers and workers ’ as was formerly the case. Taken together, these changes appear to make it virtually impossible for workers and unions lawfully to engage in any form of boycott activity, or ‘ sympathetic ’ action against parties not directly involved in a given dispute. The Committee has never expressed any decided view on the use of boycotts as an exercise of the right to strike. However, it appears to the Committee that where a boycott relates directly to the social and economic interests of the workers involved in either or both of the original dispute and the secondary action, and where the original dispute and the secondary action are not unlawful in themselves, then that boycott should be regarded as a legitimate exercise of the right to strike. This is clearly consistent with the approach the Committee has adopted in relation to ‘ sympathy strikes ’ : It would appear that more frequent recourse is being had to this form of action (i.e. sympathy strikes) because of the structure or the concentration of industries or the distribution of work centres in different regions of the world. The Committee considers that a general prohibition of sympathy strikes could lead to abuse and that workers should be able to take such action provided the initial strike they are supporting is itself lawful.” 33. It appears that the Committee of Experts did not take a definitive position on the ban until its 1995 observation concerning the United Kingdom, when it observed as follows: “The Committee draws the Government ’ s attention to paragraph 168 of its 1994 General Survey on Freedom of Association and Collective Bargaining where it indicates that a general prohibition on sympathy strikes could lead to abuse and that workers should be able to take such action, provided the initial strike they are supporting is itself lawful. The lifting of immunity opens such industrial action to be actionable in tort and therefore would constitute a serious impediment to the workers ’ right to carry out sympathy strikes.” It has maintained this view since, stating in its most recent review of the situation (2012 observation, see Report of the Committee of Experts to the International Labour Conference, 102 nd Session, 2013, ILC.102/III(1A), pp. 195-96). ): “ Immunities in respect of civil liability for strikes and other industrial action (sections 223 and 224 of the TULRA). In its previous comments, the Committee had noted that according to the TUC, due to the decentralized nature of the industrial relations system, it was essential for workers to be able to take action against employers who are easily able to undermine union action by complex corporate structures, transferring work, or hiving off companies. The Committee generally raised the need to protect the right of workers to take industrial action in relation to matters which affect them even though, in certain cases, the direct employer may not be party to the dispute, and to participate in sympathy strikes provided the initial strike they are supporting is itself lawful. The Committee takes note of the Government indication that: (1) its position remains as set out in its report for 2006 ‑ 08, that the rationale has not changed and that it therefore has no plans to change the law in this area; and (2) this issue forms part of a matter brought before the ECHR by the National Union of Rail, Maritime and Transport Workers (RMT) and that the Court has yet to consider the case. The Committee recalls the previous concern it raised that the globalization of the economy and the delocalization of work centres may have a severe impact on the right of workers ’ organizations to organize their activities in a manner so as to defend effectively their members ’ interests should lawful industrial action be too restrictively defined. In these circumstances, the Committee once again requests the Government to review sections 223 and 224 of the TULRA, in full consultation with the social partners, and to provide further information in its next report on the outcome of these consultations. ” [4] B. European Social Charter 34. The right to strike is protected by Article 6, paragraph 4, of the European Social Charter, which the United Kingdom ratified on 11 July 1962. It provides as follows: “With a view to ensuring the effective exercise of the right to bargain collectively, the Contracting Parties undertake: ... [ to ] recognise: 4. the right of workers and employers to collective action in cases of conflicts of interest, including the right to strike, subject to obligations that might arise out of collective agreements previously entered into.” 1. Concerning notice requirements 35. The European Committee on Social Rights (ECSR) has examined the British rules on strike ballots and deemed them incompatible with the proper exercise of the right to strike. In its most recent assessment of the matter (Conclusions XIX-3, 2010) it stated: “The Committee considered in its previous conclusions ... that the requirement to give notice to an employer of a ballot on industrial action, in addition to the strike notice that must be issued before taking action, is excessive (even the simplified requirements introduced by the Employment Relations Act (ERA)2004). As there have been no changes to the situation, the Committee reiterates its finding that the situation is not in conformity with Article 6 § 4 of the Charter in this respect.” 2. Concerning secondary action 36. Like the ILO Committee of Experts, the ECSR has consistently criticised the situation in the United Kingdom. In its first consideration of the matter (Conclusions XIII-1, 1993) it stated: “Referring to the report, the Committee noted the Government ’ s observations concerning the limitations on the right to strike, imposed by the 1990 Employment Act in respect of Great Britain. In particular, it noted that while the Government emphasised the importance of protecting the right of employers to dismiss those engaged in a strike, it also emphasised that the legislation continues to: ( i ) allow special protection for peaceful pickets at their own place of work; (ii) provide statutory immunity to peaceful and lawful pickets; (iii) provide statutory immunity for lawful trade disputes. The Committee also noted the recent observations of the ILO Committee of Experts recommending that the legislation be amended to conform with the principle of freedom of association in accordance with ILO Convention No. 87 (Freedom of Association and Protection of the Right to Organise, 1948). Having regard to this information and having noted that there is no immunity afforded individuals in respect of: – secondary industrial action other than inducement in the course of peaceful picketing; – industrial action organised in support of employees dismissed while taking part in unofficial action; the Committee reiterated its previous negative conclusion for the reasons cited in the twelfth cycle of supervision.” (Conclusions XIII-I, reference period 1990-1991).” 37. In the ECSR ’ s most recent pronouncement on the matter (Conclusions XIX-3, 2010) it said: “In its previous conclusions ... the Committee found that lawful collective action was limited to disputes between workers and their employer, thus preventing a union from taking action against the de facto employer if this was not the immediate employer. It furthermore noted that British courts excluded collective action concerning a future employer and future terms and conditions of employment in the context of a transfer of part of a business (University College London NHS Trust v. UNISON). The Committee therefore considered that the scope for workers to defend their interests through lawful collective action was excessively circumscribed in the United Kingdom. Given that there have been no changes to the situation, the Committee reiterates its finding that the situation is not in conformity with Article 6 § 4 of the Charter in this respect.” C. Charter of Fundamental Rights of the European Union The relevant provisions are the following: Article 12 Freedom of assembly and of association “ 1. Everyone has the right to freedom of peaceful assembly and to freedom of association at all levels, in particular in political, trade union and civic matters, which implies the right of everyone to form and to join trade unions for the protection of his or her interests. ... ” Article 28 Right of collective bargaining and action “ Workers and employers, or their respective organisations, have, in accordance with Community law and national laws and practices, the right to negotiate and conclude collective agreements at the appropriate levels and, in cases of conflicts of interest, to take collective action to defend their interests, including strike action.” Article 28 appears in Title IV of the Charter. As regards the United Kingdom, reference must be made to Protocol (No 30) to the Treaty on the Functioning of the European Union. It provides, in so far as relevant: Article 1 “ ... 2. In particular, and for the avoidance of doubt, nothing in Title IV of the Charter creates justiciable rights applicable to Poland or the United Kingdom except in so far as Poland or the United Kingdom has provided for such rights in its national law.” IV. ELEMENTS OF COMPARATIVE LAW 38. The parties provided some elements of comparative law in relation to secondary strikes. Both referred to a comparative study on the regulation of industrial action in Europe ( Strike rules in the EU27 and beyond : A comparative overview [5], W. Warneck, European Trade Union Institute for Research, Education and Health and Safety (ETUI-REHS), 2007). According to this source, secondary action is protected or permitted, subject to varying restrictions and conditions, in the great majority of the member States of the European Union. The States that, like the United Kingdom, do not permit secondary action were identified as Austria, Luxembourg and the Netherlands. 39. In their initial submissions, the Government sought to draw support for the situation in the United Kingdom by reference to the situation in the following States: Spain, the Netherlands, Italy, Austria, Norway, Denmark and Germany. They contended that these illustrated a broad tendency in Europe to subject secondary action to much more restrictive conditions than primary industrial action. In reply to this the applicant union provided to the Court statements from labour - law experts in a number of European countries contradicting the Government ’ s remarks. The applicant union concluded that the United Kingdom is the most restrictive among the Contracting Parties to the Convention in this respect. The Government concluded that the material demonstrated that, notwithstanding the great variety of industrial - relations systems and traditions in Europe, most States distinguished between primary and secondary action, with greater restriction on the latter. The broad right claimed by the applicant union was not supported by any real European consensus. 40. The Court notes that comparative information is available from the monitoring mechanism of the European Social Charter [6]. As indicated above, this body has repeatedly criticised the situation in the United Kingdom, which appears to be the only State subject to criticism on this specific ground. The ECSR has also commented in recent years on the lawfulness of secondary action (sometimes using the term “sympathy” or “solidarity” action) in the following States: Bulgaria, Croatia, the Czech Republic, Denmark, Estonia, Finland, Germany, Malta, Norway, Portugal, Romania, the Slovak Republic, Spain and Sweden. With reference to the three other States identified in the Warneck study as not permitting secondary action, the Court notes that the ECSR has not criticised the situation in the Netherlands on this ground. Nor has it made any comment at all in relation to the situation in Austria or Luxembourg, neither State having accepted Article 6, paragraph 4, of the Social Charter. 41. Some further comparative information is available from the publications and legal databases of the ILO. For example, the Committee of Experts referred to the removal from the Turkish Constitution of the prohibition on solidarity strikes ( “ Giving globalization a human face ”, § 125). It has also referred, in its review of State implementation of Convention No. 87, to the lawfulness of sympathy strikes in Albania, Georgia and Latvia. The Committee on Freedom of Association has referred to solidarity strike action in Hungary (complaint no. 2775), and noted that Russian law does not expressly provide for, or for that matter prohibit, such action (complaint no. 2251). Additionally, the Court notes that in Swiss law strikes are permitted if they “relate to employment relations” (Article 28 § 3 of the Constitution). According to one constitutional commentary, a strike must actually be about working conditions, and not pursue corporatist or political objectives outside of the enterprise or branch ( Droit constitutionnel suisse, vol. II, Auer, Malinverni and Hottelier, p. 723). THE LAW ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION 42. The applicant union contended that the two situations described above, regarding the statutory requirements on strike-ballot notice and on secondary strike action, disclosed excessive restrictions on its freedom of association under Article 11 of the Convention, which reads as follows: “ 1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests. 2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.” 43. The Government contested that argument. 44. The Court will examine consecutively the two sets of facts presented by the applicant union and the distinct Convention issues to which each gives rise. A. Admissibility 1. Strike-ballot notice 45. Regarding the first complaint, notice of which was not given to the Government, the Court finds that it is inadmissible for the following reason. The facts of the practical example provided, as reported by the applicant union, indicate that, while the union experienced some delay in taking action to protect the interests of its members, it succeeded in holding a strike two months later. That action, by the applicant union ’ s own admission, induced EDF to improve its offer to union members, who accepted it and it took effect as a collective agreement shortly afterwards. That successful outcome cannot be disregarded. It would be artificial for the Court to consider the issuing of the injunction against the RMT in isolation from subsequent events. In sum, there is no basis here for the Court to find that the applicant union ’ s exercise of its rights under Article 11 of the Convention has been interfered with, over and above being required to comply with the procedural requirements set down in law, which it succeeded in doing. While those requirements have been the subject of criticism by other international bodies (see paragraphs 26-37 above), the Court can only examine complaints in light of their concrete facts. It considers that what the EDF situation discloses in reality is ultimately successful collective action by the applicant union on behalf of its members. This aspect of the application is therefore manifestly ill ‑ founded and so must be rejected as inadmissible pursuant to Article 35 §§ 3 (a) and 4 of the Convention. 2. Secondary strike action 46. In relation to the second aspect of the application, a first issue of admissibility arises out of the fact that the applicant union has complained of the same matter to the ILO Committee on Freedom of Association. This took place after the case had been lodged with the Court, the RMT stating in its application form its intention to apply to the Committee on Freedom of Association. By a letter of 6 June 2013, the applicant union informed the Court that it had “irrevocably withdrawn” that complaint. The Government submitted that maintaining two international complaints in parallel for several years and then withdrawing one of them so as to gain a tactical advantage before the Court should be considered an abuse of the right of application. They added that Article 35 § 2 (b) of the Convention ( see paragraph 48 below) should not be construed so as to limit its effect strictly to cases where the applicant has already submitted the matter to another international procedure. In their submission, such a literal reading would defeat the purpose of the provision, since it would allow an applicant to bring a case under the Convention, and then, the very next day, bring that same case before another international body. 47. The applicant union replied that the Government had been aware all along of the existence of the complaint to the Committee on Freedom of Association, having submitted its official reply to the ILO in July 2011. That reply had in fact referred to the existence of the present application before the Court, noting – correctly – that the RMT had given clear priority to the Convention proceedings. This was because the United Kingdom had simply ignored the criticism voiced by the relevant ILO bodies, whereas it would be bound to execute a judgment in the applicant union ’ s favour. The withdrawal of the complaint to the ILO, before any decision was taken by the Committee on Freedom of Association, meant that the prospect of a plurality of international proceedings relating to the same case had been dispelled. 48. Article 35 § 2 (b) of the Convention provides: “2. The Court shall not deal with any application submitted under Article 34 that ... (b) is substantially the same as a matter that has already been examined by the Court or has already been submitted to another procedure of international investigation or settlement and contains no relevant new information.” As established in the Court ’ s case-law, this provision is not limited to situations where an applicant has already applied to another international body regarding the same matter. The Court has held that it is not the date of such a step that is decisive, but whether a decision on the merits has already been taken by the time the Court examines the case ( see Peraldi v. France ( dec. ), no. 2096/05, 7 April 2009). That has not occurred in the present case (contrast POA and Others v. United Kingdom ( dec. ), no. 59253/11, 21 May 2013, where the applicant trade union had already submitted an identical complaint to the Committee on Freedom of Association, which had issued its decision on the merits). Furthermore, the Court does not consider that the applicant union has abused the right of application. It did not conceal from the Court at the outset its intention to utilise another international procedure ( contrast Cereceda Martin and Others v. Spain, no. 16358/90, Commission decision of 12 October 1992, Decisions and Reports 73, p. 120, at p. 133 ). Its decision to ultimately withdraw that complaint as a measure of precaution cannot be regarded as abusive within the meaning of Article 35 § 3 (a) of the Convention. The Court therefore rejects the Government ’ s preliminary objection under this head. 49. The Government further submitted that the complaint regarding secondary strike action should be rejected as manifestly ill-founded. They considered that there had been no violation of, or even interference with, the applicant union ’ s right of freedom of association since Article 11 did not confer any right to take secondary action. Instead, it was plain from the very wording of that provision that it contemplated collective action by workers to protect their own interests. Sympathy strikes, which were no more than a show of solidarity with another group of workers, lacked the requisite nexus between collective action and the direct interests of the persons taking part in it. It did not appear from the facts adduced that the situation of the RMT members employed by Hydrex had any real bearing on the situation of their union colleagues employed by Jarvis. Had any similar threat to the latter ’ s interests materialised, it would have been open to them to take strike action, just as the Hydrex members had done. 50. The applicant union rejected the Government ’ s reading of Article 11 § 1 as excessively narrow. 51. The Court considers that the Government ’ s preliminary objection under this second head raises an issue of interpretation of the Convention that does not lend itself appropriately to being settled at the stage of the examination of admissibility of the application. It therefore joins the objection to the merits of the case for examination below. 52. As it is not inadmissible on any other ground, the part of the application relating to secondary action must be declared admissible. B. Merits 1. The parties ’ submissions (a) The applicant union 53. The applicant union argued that the ban on secondary action had seriously limited its ability to protect its Hydrex members effectively against a drastic cut to their terms and conditions of employment. Had it been possible to organise a sympathy strike at Jarvis, it was highly probable that Hydrex would have desisted from changing matters for the worse. With so few members employed by Hydrex, the effect of the strike had been negligible. The very limited possibility of lawful picketing had made no difference. The revised offer made by management, despite being presented in a positive light by the union leadership, had been unanimously rejected by those polled as totally inadequate. The applicant union stated that a strike by its Jarvis members would have been motivated not just by solidarity with fellow union members who had been their former colleagues, but also by concern to preserve their own terms and conditions. Given the highly competitive environment in which they were employed, a decision by one company to reduce its staffing costs could well trigger similar cuts in rival companies. As the Hydrex situation illustrated, it was easy for a company to terminate the employment of workers and then rehire them on less favourable terms. The ban on secondary action had the effect of undermining trade - union action on behalf of all its members in a given sector, to the detriment of all such workers. From 1980 onwards, there had been a significant and steady decline in the role of collective agreements in the British economy, which made it all the more vital to permit trade unions to act effectively on their members ’ behalf, protecting those in positions of greater weakness. In the applicant union ’ s view it was only in the period before 1980 that the right to take secondary strike action had been adequately protected in domestic law. The government of the day had not considered it necessary to restrict it. The clear object of the 1980 and 1992 legislation had been to undermine the role and influence of trade unions, leaving workers in a weakened position. The Government ’ s claims that strike action had damaged the economy in the 1970s and 1980s lacked substantiation, and were moreover exaggerated and inaccurate. Despite the lack of any real evidence, trade unions had been unjustly blamed for Britain ’ s economic woes for over thirty years, and were for this reason subject to very restrictive legislation. 54. Replying to the Government ’ s argument that secondary action, by its nature, had the effect of embroiling other employers in industrial disputes to which they were not party and over which they had no control, the applicant union submitted that such considerations were irrelevant to the facts of this case. It would only have called out the Jarvis workforce, which would have been sufficient to induce Hydrex to leave existing terms and conditions intact. In any event, the applicant union rejected as generalisations the Government ’ s arguments regarding the disruptive effects of secondary strikes and the risks these posed to the Convention rights of third parties (interference with businesses, threats to livelihoods, and even – in extreme situations – to life and health). Sufficient safeguards existed elsewhere in the law, including the criminal law. There was thus no justification for a complete ban on secondary action. A less restrictive regime could surely be devised, as required by the principle of proportionality. The possibility of organising peaceful pickets made no real difference, as shown by the facts of this case; it did not mitigate the disproportionate effects of the ban on secondary action. 55. Citing several of this Court ’ s judgments and decisions in trade - union cases, the applicant union argued that the taking of strike action must now be regarded in its own right as an essential element of freedom of association that States must respect. Alternatively, the Court having identified collective bargaining as an essential element of trade - union rights, it must logically follow that the right to strike was equally essential, since without the threat of industrial action, collective bargaining would be deprived of any effectiveness and be little more than “collective begging”. The ban on secondary action thus impaired the essence of freedom of association. This could be accepted only upon proof of some truly compelling justification. The State must meet a stringent test of necessity, with only a limited margin of appreciation, subject to the very rigorous scrutiny of the Court. 56. The applicant union urged the Court to reject any narrow concept of trade - union freedom of association that would be limited to the protection of the strictly personal interests of individual workers. Such an interpretation would impoverish the substance of Article 11. In the many cases it had decided involving strikes, the Court had never attached any significance to what was at stake for the workers in the dispute. It was entirely legitimate for unions to pursue broader, common objectives. Trade unionism was fundamentally about solidarity among union members and among workers more generally, and the wording of Article 11 of the Convention should be construed in keeping with this. Workers should be able to take industrial action to protect those who may be prevented from doing so, or who, on their own, lack the collective strength to defend their interests at work. This broad concept of freedom of association was espoused by the two most eminent international bodies in the field of trade - union rights, the ILO Committee of Experts and the ECSR. Both had repeatedly criticised the United Kingdom for its ban on secondary action, which they deemed to be incompatible with the relevant international legal standards. These had been interpreted to mean that the only acceptable condition that could be attached to secondary action was that the primary dispute itself be lawful. The applicant union urged the Court to adopt the same position. If that were overbroad, a criterion of proximity might be envisaged, that is to say, a requirement of a link of some sort between workers engaged in primary action and those striking in sympathy with them. Such a link was present here, since the group of workers concerned had originally been Jarvis employees and continued to perform the same work at the same sites after the transfer. A worsening in their terms and conditions could have had negative consequences for all workers in that sector. In the modern economy, the workforce was becoming increasingly fragmented through the transfer of undertakings or part of them, the creation of complex corporate structures, agency work, privatisation, the contracting-out of services leading to further sub-contracting, non-genuine self-employment, and so forth. This led to a situation in which persons performing the same job at the same place of work could have different employers, meaning that they could not legally support one another in time of industrial conflict. 57. With its outright prohibition on secondary action, the United Kingdom was part of a very small minority of European countries adopting such an extreme position. The approach adopted by the great majority of European States, notwithstanding the differences between them in the field of industrial relations generally, was a permissive one. This represented, so the applicant union submitted, the consensus in Europe on the issue. (b) The Government 58. The Government did not accept the applicant union ’ s account of the Hydrex situation. They noted that, as required by domestic law, the group of ex-Jarvis employees had continued to enjoy their previous terms and conditions of employment after the transfer, and this had continued for a period of two years. At that point, as shown by the documents submitted by the applicant union, the company ’ s financial difficulties led it to propose new, less advantageous contracts to the persons concerned. The applicant union defended their interests by making representations and ultimately through strike action that led to an improved offer. While that offer had been rejected, and the applicant union now described it as inadequate, it had in fact been endorsed at the time by the RMT General Secretary, who had considered the strike a success and urged union members to vote in favour of acceptance. 59. As for the RMT members employed by the Jarvis group, the Government noted that, contrary to the applicant union ’ s speculations, there was no evidence of any move by the employer to reduce their terms and conditions as Hydrex had done. The two companies were unrelated. Had there been any move to do so, it would have been open to the applicant union to organise a strike by Jarvis employees in defence of their interests. 60. The Government contended that the right to strike was adequately protected in domestic law. As long as industrial action was organised in compliance with the relevant statutory provisions, the individual worker was protected against dismissal and the trade union enjoyed immunity in tort. The domestic courts had held that the statutory regime was compatible with Article 11, as interpreted by this Court ( see Metrobus Ltd, cited in paragraph 11 above). The Government clarified that Parliament had taken care to ensure that the general ban on secondary action did not curtail primary action – secondary action would be lawful if it also constituted primary action in relation to another dispute (section 224(5) of the 1992 Act). Moreover, persons taking part in industrial action were permitted to mount a peaceful picket at or near their place of work with a view to peacefully persuading others to withdraw their labour. 61. According to the Government, the present statutory framework came about as a reaction to the widespread disruptions caused to the British economy by widespread secondary action in the 1970s and 1980s. Prior to the enactment of the Employment Act 1980, trade unions had enjoyed a very broad power to organise secondary action, with highly detrimental consequences for businesses and their workforces, as well as for the general public. A dispute in one part of the economy could rapidly spill over into others, embroiling third parties in it who had no stake in the conflict and no real means of resolving it. Just how permissive the legislation in force at that time was became fully apparent in the McShane case (see paragraph 22 above). The government of the day had determined that this should be restricted, and the parliamentary debates contained many actual examples of the damage and disruption wrought by unrestricted secondary strikes. Ten years later, the government considered that even in its more restricted form secondary action had the potential to damage the economy, notably by deterring multinational companies from developing their operations in the United Kingdom. Parliament had accordingly introduced the current ban. Although the Labour Party, then in opposition, had opposed the move, it had never sought to reverse it during its thirteen -year tenure in government. Nor was the current coalition government minded to revisit the issue. This indicated the very broad political acceptance in the United Kingdom of the current balance struck regarding the right to strike. 62. The Government accepted that, in light of the recent case-law of this Court, the right under Article 11 to join a trade union normally implied the ability to strike. But this was by no means an absolute right – it could be subject to conditions and restrictions in accordance with Article 11 § 2 that were within the State ’ s margin of appreciation. Nor did the Government consider secondary action an essential element of freedom of association, finding no support for such a proposition in the relevant case-law of the Court, none of which concerned secondary action. 63. Rather, their reading of that case-law was that there had to be a nexus between the employees ’ interests and the action taken by their trade union on their behalf, be it collective bargaining or strike action. This was absent in the Hydrex situation. Secondary action by Jarvis employees in support of their former colleagues would have been on the basis of solidarity only – such action would not have had any real connection to their own interests via-à-vis Jarvis, with whom they had no dispute. Accordingly, the restriction on secondary action did not impinge on any essential element of freedom of association. There was thus no interference with the right set out in Article 11 § 1. 64. In the view of the Government, the manner in which secondary action was regulated by law was wholly within the United Kingdom ’ s margin of appreciation. As the Court had recognised in its case-law, the margin in this area must be a wide one in light of the sensitive social and political considerations involved and the very significant differences between the national industrial - relations frameworks in Europe. In any event, the situation should be examined in light of Article 11 as a whole, which called for a balancing exercise between the effects of the restriction on the applicant union ’ s rights and the potential effects of secondary action on third parties. Regarding the former element, the Government pointed out that the ban on secondary action did not interfere with the ability of a trade union to take primary action in defence of its members ’ own interests. Against that must be set the far-reaching and uncontrollable effects that secondary action could have on the rights and freedoms of others, including their rights under the Convention, specifically under Article 1 of Protocol No. 1 and, it could not be excluded, under Article 2. Where the balancing exercise involved competing Convention rights, the case-law of the Court allowed a broad margin of appreciation for the national authorities. In the view of the Government, the balance struck in the United Kingdom was a defensible one. 65. An additional consideration was the highly decentralised industrial - relations structure in the United Kingdom, which stood in contrast to the situation in many other European States. The Government considered that this had amplified the disruptive effect of secondary action in the 1970s, and would do so again were the Court to find the situation incompatible with the requirements of the Convention. It should also be borne in mind that – again in contrast to other national systems in Europe – trade unions already had broad freedom to take strike action. In the British system there was no concept of a “peace clause”, that is a binding undertaking not to take industrial action during the currency of a collective agreement. Nor was there any rule of proportionality to limit the intensity or extent of a strike, which was entirely a matter for trade unions to determine. Responding to the applicant union ’ s point about the decline of collective bargaining over the past thirty years, the Government indicated its neutrality on the issue – whether workers and employers wished to engage collectively or otherwise was a matter for them to decide. The Government disputed that the decline was due to the ban on secondary action or any other restriction referred to by the applicant union. There were other factors at work, such as the privatisation of many former public enterprises whose workforces had traditionally been highly unionised, and the marked development of labour law, conferring many more rights on workers that could be enforced through the courts rather than through the intervention of trade unions. 66. The restriction had been in place so long that, in the Government ’ s view, management and labour had adapted to it, even if on the trade - union side there were emerging signs of an increasingly confrontational attitude towards the Government ’ s economic strategy in the current difficult economic conditions. The country ’ s recovery would be imperilled if the applicant union succeeded and the Government were required to repeal the ban on secondary action. 67. Outside of the rules on strike action, it remained open to trade unions to publicise their grievances by exercising the broad right to freedom of assembly. The Government gave the example of demonstrations staged by electricians in a number of public places to inform the public of an ongoing industrial dispute. 68. The Government rejected the applicant union ’ s suggestion that the outright ban on secondary action might be replaced with a restriction based on some concept of proximity or remoteness. These were inherently vague concepts and any rule formulated in such terms would inevitably generate legal uncertainty and so could be expected to give rise to litigation. In reality, what the applicant union sought was the right to organise strike action purely on the ground of solidarity between workers in different companies, the only condition being that the primary strike be lawful. This was a plea for no restriction at all on secondary action, eliminating any balancing exercise. No such indiscriminate right could be derived from Article 11. While the applicant union asserted that the Hydrex situation did not present the risk of a broad overspill into other sectors, this was not a relevant point – Parliament had decided against permitting any case-by-case consideration but had preferred a clear and uniform rule. Accordingly, the ban was either in conformity with the Convention or it was not. In the latter eventuality, the consequence would be to open up a very broad right to take secondary action, with all of the potential ramifications of this for society. 69. The above analysis was not, in the Government ’ s view, affected by the provisions of other international texts referred to by the applicant union. Regarding Article 6 § 4 of the Social Charter, the Government considered that the ECSR regarded the right to strike as integral to the process of collective bargaining between trade unions and employers in cases of conflicts of interest between them. This corresponded to primary industrial action, where workers ’ interests were directly engaged, not to secondary. The Government further observed that the ECSR was not a judicial or quasi-judicial organ, but simply an independent body that submitted its conclusions to the Committee of Ministers annually. It was the latter that had the power to adopt recommendations to States in relation to any instance of non-compliance with the Charter. As far as the ban on secondary action was concerned, the Committee of Ministers had never taken a stance. In any event, the basis for the ECSR ’ s critique of the United Kingdom in this respect was that the ban could have the effect of preventing workers from striking against the “real” or de facto employer, where this is a distinct entity from the direct employer. This was also the basis for the criticism voiced by the ILO Committee of Experts, but it had no relevance to the Hydrex situation, which formed the factual basis for the Court ’ s examination of the issue. In any event, that Committee was not a judicial or quasi-judicial body either, and its interpretation of ILO Conventions was not definitive. Rather, its role was to provide impartial and technical evaluation of the state of application of international labour standards. In fact, the question of a right to strike was currently the cause of sharp controversy within the ILO, as part of which the status of the interpretations given by the Committee of Experts had been called into question. In addition, the Government perceived a divergence of view between the Committee of Experts and the Committee on Freedom of Association, the latter regarding the right to strike as applying only to the defence of one ’ s economic interests. It was noteworthy that the ILO Governing Body had refrained from taking any position on the situation. The Government thus did not accept that the United Kingdom was in breach of its obligations under Convention No. 87. 70. Commenting on the comparative information before the Court, the Government noted that the United Kingdom was not alone in banning or significantly restricting secondary action. Given the great diversity of the different industrial - relations systems in Europe, any superficial comparison on this precise point would be of limited assistance. Contrary to what the applicant union asserted, that diversity pleaded in favour of a wide margin of appreciation. (c) The third parties ( i ) ETUC/TUC 71. The two organisations stated their view that the right to strike is absolutely essential to the functioning of trade unionism in free societies, and that a total ban on secondary action is unacceptable. They referred to a series of international treaties that expressly recognise the right to strike, or have been authoritatively interpreted as protecting that right. In the jurisprudence of the ILO supervisory bodies, the right to strike was widely applied and strongly protected. There could be restrictions, but these must not be such as to result in practice in an excessive limitation of the right to strike. Sympathy strikes had to be permitted. This was also clearly established in the jurisprudence of the ECSR. The complete ban on secondary action meant that workers in dispute could not in any circumstances call on members of their own union for support, or of any other trade union with which their own was associated at a higher level ( for example, a federation or confederation). This diminished the very purpose of joining a trade union, and undermined the purpose of this dimension of Article 11 of the Convention, which reflected the principle that workers should be free to combine for mutual support in times of crisis. The ban was a relatively recent innovation, coming in more than eight decades after the foundational statute in British industrial relations, the Trade Disputes Act of 1906. The Government had failed to justify the restriction before the ILO Committee of Experts. In particular, that Committee had not accepted the Government ’ s argument that the ban was made necessary by the decentralised nature of the British system of industrial relations. On the contrary, the Committee considered that this made it more important for workers to be able to take action against employers who are easily able to undermine union action by complex corporate structures, by transferring work or by hiving off companies. Workers in the United Kingdom were forbidden to take action in support of colleagues employed by another employer forming part of the same group of companies, even though they stood to be affected by the outcome of the dispute. That could not be right. The two organisations expressed their dismay that the Government was ignoring the need to amend the law and refusing to bring it up to the level of minimum international standards. The centre of gravity among European States appeared to lie somewhere between the total prohibition of such action and no restriction at all. The total ban in force in the United Kingdom was an unjustifiable restraint on the right to freedom of association, which could not be justified in all circumstances to protect the rights and freedoms of others. (ii) Liberty 72. Liberty considered that the ban on secondary action was an unjustified interference with the rights of workers and their trade unions. In many situations, workers were not in fact able to exercise their right under Article 11 to take industrial action; for example, those employed in very small establishments, or working for entities where terms and conditions are effectively determined by a third party such as a client, or those with insecure employment status. The traditional set-up in which all the members of the same workforce had the same employer no longer corresponded to the reality of a large and growing category of workers. It had been estimated that over three million jobs were now outsourced in the British economy, a great many of these from the public sector, where union density had traditionally been highest. This fragmentation of the traditional labour market had implications for labour law generally, and made it increasingly difficult for trade unions to continue to defend the interests of their members, who were increasingly dispersed among different economic operators. In this context, the effect of the ban on secondary strikes was to greatly reduce the value of trade - union membership, as it prevented the union from mobilising broadly in solidarity with and so as to protect the interests of members in dispute with their direct employer. The ban made it easy for companies to undercut the influence of trade unions by reconfiguring their organisations. It was clearly established in domestic case-law that the corporate veil could not be lifted in such circumstances. This deprived trade unions of the possibility of taking effective action against those with real decision-making power or control. Before 1980, the scope for secondary strikes was very broad, as illustrated by the House of Lords in N.W.L. Ltd v. Woods ([1979] 1 WLR 1294), which recognised the lawfulness of industrial action by dock workers taken in solidarity with foreign seafarers working for very little pay on flagged-out vessels. The ban denied some workers their only source of effective union support in the form of financial pressure exerted on the employer ’ s commercial relationships. It also hindered freedom of association in small firms ( fewer than twenty-one employees), which were excluded from the statutory procedure for recognising trade unions. If such an employer refused to recognise a trade union on a voluntary basis, the ban on secondary action made it impossible for fellow members in other workplaces to take industrial action so as to induce the employer to accept trade - union representation. 73. Liberty argued that this Court had consistently protected the substance of workers ’ freedom of association, and had never accorded any significance to whether a strike was of the primary or any other type. While the right to take secondary action could be restricted in accordance with the terms of Article 11 § 2, and balanced against competing rights and freedoms, this could not go so far as to impair the very essence of the right. 74. The Government replied to Liberty ’ s observations, observing that the latter addressed broader, background issues that were not relevant to the facts of the present case. While accepting that the structure of the labour market had evolved over the past two decades, the Government disagreed that this had generally hindered the enjoyment by the workers concerned of the benefits of trade - union rights. Practice actually showed that trade unions were capable of acting effectively in such circumstances – the three examples referred to by Liberty were in fact instances of the successful resolution of an industrial dispute via trade - union involvement (the three examples were: one involving airline catering staff, one concerning bus drivers in London during the 2012 Olympics, and one involving fuel lorry drivers). The charge that workers were prevented from taking action against the party that really determines their terms and conditions was no more than a hypothesis – no actual examples had been given. Nor had there been any decline in the number of days lost to strike action each year for the past twenty years, which tended to refute Liberty ’ s view that domestic law had increasingly restricted trade - union freedom. In this respect, the United Kingdom was close to the European Union and Organisation for Economic Co-operation and Development average. As to the assertion that the threshold of twenty-one employees represented a loophole that employers could easily exploit in order to avoid having to recognise a trade union, the Government did not see its relevance to the facts of the case. Even so, there were safeguards in place to prevent employers from circumventing their statutory duty. Only genuine small firms were excluded, and that was for valid policy reasons. Finally, the Government submitted that there was no explicit support in the Court ’ s case-law for the proposition that the right to take secondary action is an essential element of freedom of association, or that the ban could not be justified under Article 11 § 2. 2. The Court ’ s assessment (a) Applicability of Article 11 75. The Court must first determine whether, as the applicant union argued, secondary action comes within the scope of Article 11 of the Convention or, as the Government argued, it does not. The question is a novel one, not having arisen directly in any previous case. 76. What the Government propose is a literal reading of the second clause of the first paragraph of Article 11. Although it is possible to derive such a meaning from the language of the text taken on its own, the Court would observe that, as provided in Article 31 § 1 of the Vienna Convention on the Law of Treaties, the provisions of a treaty are to be interpreted in accordance with their ordinary meaning, in their context and in the light of the treaty ’ s object and purpose. Furthermore, it has often stated that the Convention cannot be interpreted in a vacuum but must be interpreted in harmony with the general principles of international law. Account should be taken, as indicated in Article 31 § 3 (c) of the Vienna Convention of “any relevant rules of international law applicable in relations between the parties”, and in particular the rules concerning the international protection of human rights (see X v. Latvia [GC], no. 27853/09, § 92, ECHR 2013, with further references therein). In this regard, it is clear from the passages set out above ( see paragraphs 26-37) that secondary action is recognised and protected as part of trade - union freedom under ILO Convention No. 87 and the European Social Charter. Although the Government have put a narrower construction on the positions adopted by the supervisory bodies that operate under these two instruments, these bodies have criticised the United Kingdom ’ s ban on secondary action because of a perceived risk of abuse by employers, and have illustrated this with some examples. The Government further queried the authority, for the purposes of the Convention, to be attributed to the interpretative pronouncements of the expert bodies tasked with supervising compliance with these specialised international standards. The Court will consider this later in its analysis. For now it suffices to refer to the following passage from the judgment in Demir and Baykara v.Turkey ( [GC], no. 34503/97, § 85, ECHR 2008 ): “The Court, in defining the meaning of terms and notions in the text of the Convention, can and must take into account elements of international law other than the Convention, the interpretation of such elements by competent organs, and the practice of European States reflecting their common values. ... ” It would be inconsistent with this method for the Court to adopt in relation to Article 11 an interpretation of the scope of freedom of association of trade unions that is much narrower than that which prevails in international law. In addition, such an understanding of trade - union freedom finds further support in the practice of many European States that have long accepted secondary strikes as a lawful form of trade - union action. 77. It may well be that, by its nature, secondary industrial action constitutes an accessory rather than a core aspect of trade - union freedom, a point to which the Court will revert in the next stage of its analysis. Nonetheless, the taking of secondary industrial action by a trade union, including strike action, against one employer in order to further a dispute in which the union ’ s members are engaged with another employer must be regarded as part of trade - union activity covered by Article 11. 78. The Court therefore concludes that the applicant union ’ s wish to organise secondary action in support of the Hydrex employees must be seen as a wish to exercise, free of a restriction imposed by national law, its right to freedom of association within the meaning of Article 11 § 1 of the Convention. It follows that the statutory ban on secondary action as it operated in the example relied on by the applicant union constitutes an interference with its rights under this provision. To be compatible with paragraph 2 of Article 11, such interference must be shown to be “prescribed by law”, to pursue a legitimate aim, and to be “necessary in a democratic society” to achieve those aims. (b) Lawfulness and legitimacy of the interference 79. There was no dispute between the parties that the interference was prescribed by law. The Court agrees. 80. As to the aim of the interference, the applicant union argued that it found no legitimation in Article 11 § 2. It clearly did not concern national security or public safety, the prevention of disorder or crime, or the protection of health or morals. As for the remaining aim recognised as legitimate, namely the “protection of the rights and freedoms of others”, the applicant union ’ s argument was that it would be illogical to restrict the right to strike on account of the impact of such action on the employer. The very purpose of strike action is to have a strong impact on the employer ’ s position, to induce the employer to meet the demands of labour. It would be erroneous to allow this to serve as a justification for curbing the right to strike. The applicant union therefore invited the Court to reconsider the reasoning followed in this regard in UNISON v. the United Kingdom ( ( dec. ), no. 53574/99, ECHR 2002 ‑ I), in which the Court had accepted that the restriction on strike action concerned the “rights of others”, referring to the employer. The economic interests of an employer should not be permitted to take precedence over the human rights of employees. Such reasoning contradicted the approach of the ECSR, for example, which did not accept any principle of proportionality between the taking of strike action and the consequences of this on the employer ’ s interests. The applicant union further argued that the UNISON decision sat ill with the earlier judgment of the Court in Gustafsson v. Sweden (25 April 1996, Reports of Judgments and Decisions 1996 ‑ II). There the Court had not entertained the applicant ’ s complaint that the trade - union boycott of his business was an interference with his rights under Article 1 of Protocol No. 1. Nor had it accepted that the impact on his business, although it caused considerable economic damage, gave rise to any positive obligation on the State to come to his aid. The Court should instead take a stringent approach as it had done in two cases involving sanctions against public-sector employees who participated in a one-day strike ( Karaçay v. Turkey, no. 6615/03, 27 March 2007 and Kaya and Seyhan v. Turkey, no. 30946/04, 15 September 2009). In each case the Court had not been persuaded that the interferences in question pursued legitimate aims, although it ultimately had left that point open in view of its finding that the interferences complained of were not “necessary in a democratic society”. 81. The Government contended that the ban sought to protect the rights and freedoms of others, above all of persons not connected to the industrial dispute. In light of the potentially far-reaching and uncontrollable effects that secondary action could have on third parties, protecting the latter was clearly a legitimate objective that Parliament had pursued when it introduced the ban. The Government added that it could be readily envisaged how secondary action could threaten the enjoyment of rights protected by the Convention, such as the right to make one ’ s living. 82. The Court considers that the present case is distinguishable from the decision in UNISON, cited above. The latter concerned primary strike action, the complaint being that the applicant trade union had been prevented from taking industrial action in defence of its members ’ future interests, in the context of the impending privatisation of hospital services. During the domestic proceedings the Court of Appeal held that the impact of such a strike on members of the public was irrelevant to the legal issues arising. This Court took the same view, and for this reason the aim of “protection of the rights and freedoms of others” was taken in the circumstances as referring just to the employer ’ s rights. The ground for distinguishing the present case is the fact that it concerns secondary action. As the Government have argued, by its nature secondary action may well have much broader ramifications than primary action. It has the potential to impinge upon the rights of persons not party to the industrial dispute, to cause broad disruption within the economy and to affect the delivery of services to the public. Accordingly, the Court is satisfied that in banning secondary action, Parliament pursued the legitimate aim of protecting the rights and freedoms of others, not limited to the employer side in an industrial dispute. (c) Necessity in a democratic society 83. It remains to be determined whether the statutory ban on secondary industrial action, in as much as it affected the ability of the applicant union to protect the interests of its Hydrex members, can be regarded as being “necessary in a democratic society”. To be so considered, it must be shown that the interference complained of corresponded to a “pressing social need”, that the reasons given by the national authorities to justify it were relevant and sufficient and that it was proportionate to the legitimate aim pursued. 84. The Court will first consider the applicant union ’ s argument that the right to take strike action must be regarded as an essential element of trade - union freedom under Article 11, so that to restrict it would be to impair the very essence of freedom of association. It observes that it has already decided a number of cases in which restrictions on industrial action were found to have given rise to violations of Article 11 (see, for example, Karaçay, cited above; Dilek and Others v. Turkey, nos. 74611/01, 26876/02 and 27628/02, 17 July 2007; Urcan and Others v. Turkey, nos. 23018/04 and 10 others, 17 July 2008; and Enerji Yapı-Yol Sen v. Turkey, no. 68959/01, 21 April 2009). The applicant union placed great emphasis on the last of these judgments, in which the term “indispensable corollary” was used in relation to the right to strike, linking it to the right to organise ( see Enerji Yapı-Yol Sen, cited above, § 24). It should, however, be noted that the judgment was here adverting to the position adopted by the supervisory bodies of the ILO rather than evolving the interpretation of Article 11 by conferring a privileged status on the right to strike. More generally, what the above-mentioned cases illustrate is that strike action is clearly protected by Article 11. The Court does not therefore discern any need in the present case to determine whether the taking of industrial action should now be accorded the status of an essential element of the Article 11 guarantee. 85. What the circumstances of this case show is that the applicant union in fact exercised two of the elements of freedom of association that have been identified as essential, namely, the right for a trade union to seek to persuade the employer to hear what it has to say on behalf of its members, and the right to engage in collective bargaining. The strike by its Hydrex members was part of that exercise, and while it did not achieve its aim, it was not in vain either since it led the company to revise its offer, which the applicant union then commended to its members. Although the Government criticised the applicant union for supporting the revised offer at the time and then reversing its stance in the present proceedings, the Court recognises that the union was bound to respect its members ’ negative vote. Yet the fact that the process of collective bargaining and industrial action, including strike action against the employer of the union members who were the subject of the dispute, did not lead to the outcome desired by the applicant union and its members does not mean that the exercise of their Article 11 rights was illusory. The right to collective bargaining has not been interpreted as including a “right” to a collective agreement (see, in this respect, Demir and Baykara, cited above, § 158, where the Court observed that the absence of any obligation on the authorities to actually enter into a collective agreement was not part of the case). Nor does the right to strike imply a right to prevail. As the Court has often stated, what the Convention requires is that under national law trade unions should be enabled, in conditions not at variance with Article 11, to strive for the protection of their members ’ interests ( ibid., § 141, and, more recently Sindicatul “ Păstorul cel Bun” v. Romania [GC], no. 2330/09, § 34, ECHR 2013). This the applicant union and its members involved in the dispute were largely able to do in the present case. 86. In previous trade - union cases, the Court has stated that regard must be had to the fair balance to be struck between the competing interests of the individual and of the community as a whole. Since achieving a proper balance between the interests of labour and management involves sensitive social and political issues, the Contracting States must be afforded a margin of appreciation as to how trade-union freedom and protection of the occupational interests of union members may be secured. In its most recent restatement of this point the Grand Chamber, referring to the high degree of divergence it observed between the domestic systems in this field, considered that the margin should be a wide one ( see Sindicatul “ Păstorul cel Bun”, cited above, § 133 ). The applicant union relied heavily on Demir and Baykara (cited above, § 119 ) in which the Court considered that the respondent State should be allowed only a limited margin. The Court would point out, however, that the passage in question appears in the part of the judgment examining a very far-reaching interference with freedom of association, one that intruded into its inner core, namely the dissolution of a trade union. It is not to be understood as narrowing decisively and definitively the domestic authorities ’ margin of appreciation in relation to regulating, through normal democratic processes, the exercise of trade - union freedom within the social and economic framework of the country concerned. The breadth of the margin will still depend on the factors that the Court in its case-law has identified as relevant, including the nature and extent of the restriction on the trade - union right in issue, the object pursued by the contested restriction, and the competing rights and interests of other individuals in society who are liable to suffer as a result of the unrestricted exercise of that right. The degree of common ground between the member States of the Council of Europe in relation to the issue arising in the case may also be relevant, as may any international consensus reflected in the apposite international instruments ( see Demir and Baykara, cited above, § 85). 87. If a legislative restriction strikes at the core of trade - union activity, a lesser margin of appreciation is to be recognised to the national legislature and more is required to justify the proportionality of the resultant interference, in the general interest, with the exercise of trade - union freedom. Conversely, if it is not the core but a secondary or accessory aspect of trade - union activity that is affected, the margin is wider and the interference is, by its nature, more likely to be proportionate as far as its consequences for the exercise of trade - union freedom are concerned. 88. As to the nature and extent of the interference suffered in the present case by the applicant union in the exercise of its trade - union freedom, the Court considers that it was not as invasive as the applicant union would have it. What the facts of the case reveal is that it held a strike, albeit on a limited scale and with limited results. It was its wish to escalate the strike, through the threatened or actual involvement of hundreds of its members at Jarvis, another, separate, company not at all involved in the trade dispute in question, that was frustrated. The Court has noted the applicant union ’ s conviction that secondary action would have won the day. Inevitably, that can only be a matter of speculation – including as to the result of any ballot on the subject – since that course of action was clearly ruled out. It cannot be said that the effect of the ban on secondary action struck at the very substance of the applicant union ’ s freedom of association. On this ground the case is to be distinguished from those referred to in paragraph 84 above, which all concerned restrictions on “primary” or direct industrial action by public-sector employees; and the margin of appreciation to be recognised to the national authorities is the wider one available in relation to the regulation, in the public interest, of the secondary aspects of trade - union activity. 89. As for the object of the interference in issue in the present case, the extracts from the debates in Parliament preceding the passage of the Employment Act 1980 make clear the legislative intention to strike a new balance in industrial relations, in the interests of the broader economy, by curbing what was a very broad right to take secondary action. A decade later, the government of the day considered that even in its more limited form secondary action posed a threat to the economy and to inward investment in the country ’ s economic activity. As a matter of policy it considered that restricting industrial action to primary strikes would achieve a more acceptable balance within the British economy. The Government have reiterated that position in the present proceedings. That assessment was sharply contested at the time by the opposition in Parliament, and is rejected by the applicant union as grounded in animus towards trade unions rather than any clear evidence of direct damage to the economy. Yet the subject matter in this case is certainly related to the social and economic strategy of the respondent State. In this regard the Court has usually allowed a wide margin of appreciation since, by virtue of their direct knowledge of their society and its needs, the national authorities, and in particular the democratically elected Parliaments, are in principle better placed than the international judge to appreciate what is in the public interest on social or economic grounds and which legislative measures are best suited for the conditions in their country in order to implement the chosen social, economic or industrial policy (see, among many authorities, Stummer v. Austria [GC], no. 37452/02, § 89, ECHR 2011 ). 90. There are, it is true, factors going in another direction as regards the range of permissible choices available to the United Kingdom legislature. 91. The first of these is the extent to which it can be said that there is common ground among European States as regards secondary action. The comparative information adduced before the Court reveals a spectrum of national positions, ranging from a broadly permissive stance in countries such as Greece, Finland, Norway and Sweden, to those that do not recognise or permit it. The other States mentioned above ( see paragraphs 38-41) are located between these two outer points. The Government played down the significance of the comparative perspective, emphasising the deep structural and cultural differences among European States in the field of industrial relations. The Court acknowledges that diversity, which it has recognised in other cases concerning the rights of trade unions ( see, for example, Sindicatul “ Păstorul cel Bun”, cited above, § 133, and Sørensen and Rasmussen v. Denmark [GC], nos. 52562/99 and 52620/99, § 58, ECHR 2006 ‑ I). It is nevertheless clear that, with its outright ban on secondary action, the respondent State stands at one end of the comparative spectrum, being one of a small group of European States to adopt such a categorical stance on the matter. The varied comparative picture, and the position of the United Kingdom within it, do not in themselves, however, mean that the domestic authorities have overstepped their legitimate margin of appreciation in regulating this aspect of trade - union activity. 92. Secondly, a prominent feature of this case is the wealth of international-law material. The United Kingdom banned secondary action more than two decades ago and throughout this time has been subject to critical comments by the ILO Committee of Experts and the ECSR. The applicant union prayed these materials in aid. The Government did not consider the particular criticisms made to be relevant to the factual situation denounced in the present case, or otherwise significant. The Court will now examine this point. 93. The Government disputed the relevance to this case of the two bodies ’ criticisms in light of the manner in which they were formulated, as they contemplated quite different potential situations to the one impugned by the applicant union (see paragraphs 33 and 37 above). 94. The Government did not regard the ECSR ’ s assessment as an authoritative source of law, since, despite the independence and expertise of its members, the ECSR did not possess judicial or quasi-judicial status. Its role was to report to the Committee of Ministers. The Court observes that the ECSR ’ s competence is stipulated in the Protocol amending the European Social Charter (also known as the “Turin Protocol”, Council of Europe Treaty Series No. 142), namely to “assess from a legal standpoint the compliance of national law and practice with the obligations arising from the Charter”. It is true that this Protocol has not come into force as several States Parties to the Charter, including the United Kingdom, have not ratified it. Yet the interpretative value of the ECSR appears to be generally accepted by States and by the Committee of Ministers. It is certainly accepted by the Court, which has repeatedly had regard to the ECSR ’ s interpretation of the Charter and its assessment of State compliance with its various provisions ( see, for example, Demir and Baykara, cited above; see also Tüm Haber Sen and Çınar v. Turkey, no. 28602/95, § 39, ECHR 2006 ‑ II, a trade - union case in which the Court described the ECSR as a “particularly qualified” body in this domain). 95. As for the absence of any recommendation by the Committee of Ministers to the United Kingdom in relation to this issue, the Court notes first of all that the role of the Committee of Ministers under the Turin Protocol is to address recommendations to States on a selective basis, guided by social, economic and other policy considerations. Its role is not to endorse the conclusions of the ECSR. Secondly, the Court notes that the Governmental Committee of the European Social Charter has taken a first step in the direction of a Committee of Ministers ’ recommendation on the issue of secondary action, by adopting a warning to the United Kingdom that “urged the Government to take all adequate steps to bring the situation into conformity with the Charter” (see its Report concerning Conclusions XIX-3 (2010), T- SG( 2012)1 _ final, at p. 59). 96. With respect to the ILO Committee of Experts, the Government made a similar observation – that body was not formally competent to give authoritative interpretations to ILO Conventions. It drew the Court ’ s attention to an ongoing disagreement within the ILO precisely regarding the legal status or even existence of a right to strike. The Committee of Experts had recently recognised the limits of its role, stating that “[its] opinions and recommendations are not binding within the ILO supervisory process and are not binding outside the ILO unless an international instrument expressly establishes them as such or the Supreme Court of a country so decides of its own volition” (from the foreword to “ Collective Bargaining in the Public Service: A way forward ”, a report of the ILO Committee of Experts to the 102nd session of the International Labour Conference, 2013). This text goes on to describe the Committee of Expert ’ s interpretations as “soft law”. The foreword concludes (§ 8): “As regards the interpretation of ILO Conventions and the role of the International Court of Justice in this area, the Committee has pointed out since 1990 that its terms of reference do not enable it to give definitive interpretations of Conventions, competence to do so being vested in the International Court of Justice by article 37 of the Constitution of the ILO. It has stated, nevertheless, that in order to carry out its function of determining whether the requirements of Conventions are being respected, the Committee has to consider the content and meaning of the provisions of Conventions, to determine their legal scope, and where appropriate to express its views on these matters. The Committee has consequently considered that, in so far as its views are not contradicted by the International Court of Justice, they should be considered as valid and generally recognized. The Committee considers the acceptance of these considerations to be indispensable to maintaining the principle of legality and, consequently, to the certainty of law required for the proper functioning of the International Labour Organization.” 97. The Court does not consider that this clarification requires it to reconsider this body ’ s role as a point of reference and guidance for the interpretation of certain provisions of the Convention (see, more generally, Demir and Baykara, cited above, §§ 65-86). While the Government referred to disagreements voiced at the 101 st International Labour Conference, 2012, it appears from the records of that meeting that the disagreement originated with and was confined to the employer group (Provisional Record of the 101 st Session of the International Labour Conference, No. 19 (Rev.), §§ 82 ‑ 90). The governments who took the floor during that discussion were reported as saying that the right to strike was “well established and widely accepted as a fundamental right”. The representative of the government of Norway added that her country fully accepted the Committee of Experts ’ interpretation that the right to strike was protected under Convention No. 87. In any event, the respondent Government accepted in the present proceedings that the right afforded under Article 11 to join a trade union normally implied the ability to strike (see paragraph 62 above). 98. The foregoing analysis of the interpretative opinions emitted by the competent bodies set up under the most relevant international instruments mirrors the conclusion reached on the comparative material before the Court, to wit that with its outright ban on secondary industrial action, the respondent State finds itself at the most restrictive end of a spectrum of national regulatory approaches on this point and is out of line with a discernible international trend calling for a less restrictive approach. The significance that such a conclusion may have for the Court ’ s assessment in a given case was explained in Demir and Baykara ( cited above, § 85) in the following terms : “ ... The consensus emerging from specialised international instruments and from the practice of Contracting States may constitute a relevant consideration for the Court when it interprets the provisions of the Convention in specific cases.” The Grand Chamber ’ s statement reflects the distinct character of the Court ’ s review compared with that of the supervisory procedures of the ILO and the European Social Charter. The specialised international monitoring bodies operating under those procedures have a different standpoint, shown in the more general terms used to analyse the ban on secondary action (see paragraphs 33 and 37 above). In contrast, it is not the Court ’ s task to review the relevant domestic law in the abstract, but to determine whether the manner in which it actually affected the applicant infringed the latter ’ s rights under Article 11 of the Convention (see Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, § 116, ECHR 2012; see also Kart v. Turkey [GC], no. 8917/05, §§ 85-87, ECHR 2009 ). The applicant union as well as the third parties dwelt on the possible effect of the ban in various hypothetical scenarios, which could go as far as to exclude any form of industrial action at all if the workers directly concerned were not in a position to take primary action, thereby, unlike in the present case, striking at the very substance of trade - union freedom. They also considered that the ban could make it easy for employers to exploit the law to their advantage through resort to various legal stratagems, such as delocalising work centres, outsourcing work to other companies and adopting complex corporate structures in order to transfer work to separate legal entities or to hive off companies. In short, trade unions could find themselves severely hampered in the performance of their legitimate, normal activities in protecting their members ’ interests. These alleged, far-reaching negative effects of the statutory ban do not, however, arise in the situation at Hydrex. The Court ’ s review is bounded by the facts submitted for examination in the case. This being so, the Court considers that the negative assessments made by the relevant monitoring bodies of the ILO and European Social Charter are not of such persuasive weight for determining whether the operation of the statutory ban on secondary strikes in circumstances such as those complained of in the present case remained within the range of permissible options open to the national authorities under Article 11 of the Convention. 99. The domestic authorities ’ power of appreciation is not unlimited, however, but goes hand in hand with European supervision, it being the Court ’ s task to give a final ruling on whether a particular restriction is reconcilable with freedom of association as protected by Article 11 ( see Vörður Ólafsson v. Iceland, no. 20161/06, § 76, ECHR 2010 ). The Government have argued that the “pressing social need” for maintaining the statutory ban on secondary strikes is to shield the domestic economy from the disruptive effects of such industrial action, which, if permitted, would pose a risk to the country ’ s economic recovery. In the sphere of social and economic policy, which must be taken to include a country ’ s industrial - relations policy, the Court will generally respect the legislature ’ s policy choice unless it is “manifestly without reasonable foundation” ( see Carson and Others v. the United Kingdom [GC], no. 42184/05, § 61, ECHR 2010). Moreover, the Court has recognised the “special weight” to be accorded to the role of the domestic policy-maker in matters of general policy on which opinions within a democratic society may reasonably differ widely (see, in the context of Article 10 of the Convention, MGN Limited v. the United Kingdom, no. 39401/04, § 200, 18 January 2011, referring in turn to Hatton and Others v. the United Kingdom [GC], no. 36022/97, § 97, ECHR 2003 ‑ VIII, where the Court adverted to the “direct democratic legitimation” that the legislature enjoys). The ban on secondary action has remained intact for over twenty years, notwithstanding two changes of government during that time. This denotes a democratic consensus in support of it, and an acceptance of the reasons for it, which span a broad spectrum of political opinion in the United Kingdom. These considerations lead the Court to conclude that in their assessment of how the broader public interest is best served in their country in the often charged political, social and economic context of industrial relations, the domestic legislative authorities relied on reasons that were both relevant and sufficient for the purposes of Article 11. 100. The Court must also examine whether or not the contested restriction offended the principle of proportionality. The applicant union argued that it did, given its absolute character, which completely excluded any balancing of the competing rights and interests at stake and prohibited any differentiation between situations. The Government defended the legislature ’ s decision to eschew case-by-case consideration in favour of a uniform rule, and contended that any less restrictive approach would be impracticable and ineffective. In their submission, the inevitable variations in the potentially numerous individual cases such as the present one are not such as to disturb the overall balance struck by Parliament. 101. The Court observes that the general character of a law justifying an interference is not inherently offensive to the principle of proportionality. As it has recently stated, a State may, consistently with the Convention, adopt general legislative measures applying to predefined situations without providing for individualised assessments with regard to the individual, necessarily differing and perhaps complex circumstances of each single case governed by the legislation (see Animal Defenders International v. the United Kingdom [GC], no. 48876/08, § 107, ECHR 2013, with many further references concerning different provisions of the Convention and Protocol No. 1 ). That does not mean the specific facts of the individual case are without significance for the Court ’ s analysis of proportionality. Indeed, they evidence the impact in practice of the general measure and are thus material to its proportionality ( ibid., § 108). As already stated, the interference with the applicant union ’ s freedom of association in the set of facts at Hydrex relied on by it cannot objectively be regarded as especially far reaching. 102. The risks attendant upon any relaxation of the ban constitute a relevant consideration, which is primarily for the State to assess ( ibid. , § 108). In this respect, the applicant union has argued that it would have limited its action to a secondary strike at Jarvis, with no further spill-over effects. That can only be a matter of speculation however. As the materials in the case file show, the very reason that caused Parliament to curb the broad scope for secondary action was its capacity, pre-1980, to spread far and fast beyond the original industrial dispute. It is to that situation that, according to the applicant union, the United Kingdom should return if it is to conform to the requirements of Article 11. 103. As has been recognised in the case-law, it is legitimate for the authorities to be guided by considerations of feasibility, as well as of the practical difficulties – which, for some legislative schemes, may well be large-scale – to which an individuated approach could give rise, such as uncertainty, endless litigation, disproportionate public expenditure to the detriment of the taxpayer and possibly arbitrariness ( ibid. ). In this regard it is relevant to note that for a period of ten years, 1980-90, the United Kingdom found it possible to operate with a lighter restriction on secondary action (see paragraphs 23-24 above). The Government have not argued that this legislative regime was attended by the difficulties referred to above, or that this was why the ban was introduced. The applicant union did not comment in detail on the legal position during that period. It took the view that the question of its compatibility with the Convention was “of entirely academic interest”, though added that were the point relevant it would argue such a restriction would not be acceptable. The Court observes that, although the legislative history of the United Kingdom points to the existence of conceivable alternatives to the ban, that is not determinative of the matter. For the question is not whether less restrictive rules should have been adopted or whether the State can establish that, without the prohibition, the legitimate aim would not be achieved. It is rather whether, in adopting the general measure it did, the legislature acted within the margin of appreciation afforded to it ( see Animal Defenders, cited above, § 110) – which, for the reasons developed above, the Court has found to be a broad one – and whether, overall, a fair balance was struck. Although the applicant union has adduced cogent arguments of trade - union solidarity and efficacy, these have not persuaded the Court that the United Kingdom Parliament lacked sufficient policy and factual reasons to consider the impugned ban on secondary industrial action as being “ necessary in a democratic society”. 104. The foregoing considerations lead the Court to conclude that the facts of the specific situation challenged in the present case do not disclose an unjustified interference with the applicant union ’ s right to freedom of association, the essential elements of which it was able to exercise, in representing its members, in negotiating with the employer on behalf of its members who were in dispute with the employer and in organising a strike of those members at their place of work (see paragraphs 15-16 above). In this legislative policy area of recognised sensitivity, the respondent State enjoys a margin of appreciation broad enough to encompass the existing statutory ban on secondary action, there being no basis in the circumstances of this case to consider the operation of that ban in relation to the impugned facts at Hydrex as entailing a disproportionate restriction on the applicant union ’ s right under Article 11. 105. Accordingly, no violation of Article 11 of the Convention can be held to have occurred on the facts of the present case. 106. In closing, the Court would stress that its jurisdiction is limited to the Convention. It has no competence to assess the respondent State ’ s compliance with the relevant standards of the ILO or the European Social Charter, the latter containing a more specific and exacting norm regarding industrial action. Nor should the conclusion reached in this case be understood as calling into question the analysis effected on the basis of those standards and their purposes by the ILO Committee of Experts and by the ECSR. | The Court held that there had been no violation of Article 11 of the Convention, finding that there was nothing in the facts raised by the applicant union to show that the general prohibition on secondary strikes had had a disproportionate effect on their rights under Article 11. The United Kingdom had therefore remained within its margin. |
272 | (Suspected) terrorists | II. RELEVANT DOMESTIC LAW AND PRACTICE A. Introduction 15. For the past 20 years the population of Northern Ireland, which totals 1.5 million people, has been subjected to a campaign of terrorism (see the Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, pp. 9-31, §§ 11-77, and the Brogan and Others judgment of 29 November 1988, Series A no. 145-B, p. 21, § 25). More than 2,750 people, including almost 800 members of the security forces, have been killed and 31,900 more have been maimed or injured. The campaign of terror has extended to the rest of the United Kingdom and to the mainland of Europe. Special legislation has been introduced in an attempt to deal with this situation in Northern Ireland. Thus, the 1978 Act and its predecessors, the Northern Ireland (Emergency Provisions) Act 1973 ("the 1973 Act") and the Northern Ireland (Emergency Provisions) (Amendment) Act 1975 ("the 1975 Act"), were enacted to enable the security forces to deal more effectively with the threat of terrorism. B. Section 11 of the 1978 Act 16. Section 11 of the 1978 Act conferred, inter alia, a power of arrest. The relevant parts of section 11, which was repealed in 1987, provided as follows: "1. Any constable may arrest without warrant any person whom he suspects of being a terrorist. ... 3. A person arrested under this section shall not be detained in right of the arrest for more than seventy-two hours after his arrest, and section 132 of the Magistrates ’ Courts Act (Northern Ireland) 1964 and section 50(3) of the Children and Young Persons Act (Northern Ireland) 1968 (requirement to bring arrested person before a magistrates ’ court not later than forty-eight hours after his arrest) shall not apply to any such person." Sub-section (2) gave a power to enter and search premises where a suspected terrorist was or was suspected of being. Under sub-section (4) persons arrested under section 11 could be photographed and their finger prints and palm prints taken by a constable. 17. Section 31 (1) of the 1978 Act defines "terrorist" and "terrorism". A terrorist is "a person who is or has been concerned in the commission or attempted commission of any act of terrorism or in directing, organising or training persons for the purpose of terrorism". Terrorism is defined as "the use of violence for political ends and includes any use of violence for the purpose of putting the public or any section of the public in fear". Under section 21 of, and Schedule 2 to, the 1978 Act, certain organisations - one of which is the IRA, the Provisional IRA included - are proscribed organisations. It is an offence to belong to or profess to belong to such an organisation, to solicit or incite support for any such organisation, knowingly to make or receive any contribution to it, to solicit or invite a person to become a member or to carry out on its behalf orders or directions or requests by a member of the organisation. 18. The powers of arrest and detention under section 11 of the 1978 Act were originally an integral part of the scheme of interim custody introduced by the 1973 Act to replace internment (see the Ireland v. the United Kingdom judgment previously cited, Series A no. 25, pp. 38-39, § 88). By 1980 this scheme (as re-enacted in the 1975 and 1978 Acts) had been repealed with the exception of section 11 and the power was thereafter used as a free-standing power of arrest and detention for up to 72 hours. Since its enactment in 1973 the legislation conferring this power was subject to periodic renewal by Parliament. Thus, under the 1978 Act (section 33) the relevant provisions became renewable, and were renewed, every six months until their repeal in 1987. 19. In 1983 the Secretary of State for Northern Ireland invited Sir George Baker, a retired senior member of the judiciary, to examine the operation of the 1978 Act to determine whether its provisions struck the right balance between maintaining as fully as possible the liberties of the individual whilst conferring on the security forces and courts adequate powers to protect the public from terrorist crime. There followed a number of recommendations in a report which was published in April 1984 (Command Paper, Cmnd. 9222). In his report Sir George Baker made the following remarks: "263. Generally I find it unhelpful in making recommendations in 1984 to go back further than 1973 but to understand the arrest and detention sections of the [1978 Act] it is useful to note that Regulation 10 of the Special Powers Act (Northern Ireland) 1922 provided: ‘ Any Officer of the RUC for the preservation of the peace and maintenance of order, may authorise the arrest without warrant and detention for a period of not more than 48 hours of any person for the purpose of interrogation. ’ (My emphasis). This general power of arrest for questioning did not disappear entirely when the Special Powers Act was repealed by Westminster. It was re-worded and to some extent re-enacted in the [1978 Act] and PTA [the Prevention of Terrorism (Temporary Provisions) Acts 1974 and 1976]. But nowhere in these acts do the words ‘ for the purpose of interrogation ’ appear. That is left to be inferred. There is widespread criticism of the alleged illegal use of arrest for ‘ information gathering ’ or low grade intelligence and harassment. It might be better if the power of the RUC were expressly spelled out in the Act linked of course to appropriate controls. That the police have such a power under the PTA was accepted by Lawton LJ in the English Court of Appeal (Criminal Division) in R. v. Houghton (1987) Criminal Appeal Reports 197. 264. In contrast to the provisions of the [1978 Act] which deal with the trial of terrorist offences and do not require derogation from Article 6 (art. 6) of the European Convention, those which deal with the powers of arrest appear to contravene the minimum requirements of Article 5 (art. 5). Consequently the United Kingdom entered a notice of derogation under Article 15 (art. 15). Article 5 § 1 (c) (art. 5-1-c) requires reasonable suspicion of having committed an offence and arrest for the purpose of bringing the offender before a competent court. Section 11 [of the 1978 Act] requires neither, nor is an offence necessary. ... Any action which can be taken to avoid the United Kingdom having to rely on the notice of derogation to excuse breaches of the Convention is desirable. ... Suspicion or reasonable suspicion 280. Only a lawyer or a legislator would suspect (or reasonably suspect?) a difference. But there is one because, say the judges, with whom I agree, Parliament by using the two phrases must have so intended. The test for Section 11 is a subjective one: did the arrestor suspect? If his suspicion is an honest genuine suspicion that the person being arrested is a terrorist, a court cannot enquire further into the exercise of the power. But where the requirement is reasonable suspicion it is for the court to judge the reasonableness of the suspicion. It is an objective standard. The facts which raise the suspicion may be looked at by the court to see if they are capable of constituting reasonable cause. Reasonable suspicion is itself a lower standard than evidence necessary to prove a prima facie case. Hearsay may justify reasonable suspicion but may be insufficient for a charge. 281. The only danger that I can foresee if the requirement of reasonableness is added to suspicion is that the facts raising the suspicion might have come from a confidential source which could not be disclosed in court in a civil action for wrongful arrest. Against this there is the requirement of reasonable suspicion in Section 12 PTA which the RUC have used more extensively in 1982 and 1983. The figures for arrests are: Under S.11 Under S.12 PTA [of the 1978 Act] 1982 1,902 828 1983 (to 1 October) 964 883 ... The criterion of whether to use one in preference to the other in any given case has been the length of time the person to be arrested may be held. ... 283. No evidence has been given to me to suggest that suspicion as against reasonable suspicion has been a factor in a decision to use Section 11 in preference to Section 12 and indeed some senior police officers have told me it would not influence them. I also understand that the police are now trained to treat arrest for terrorist offences as requiring similar suspicion as for all other offences. I therefore conclude that reasonable suspicion should be required when a constable arrests without warrant and this should be included in the new arrest powers which I propose in substitution for Section 11(1) and in Section 13(1). ... 285. There is no need to name a specific offence when arresting under section 11 or to inform the suspect of the grounds on which he is being arrested as would be required by the common law, which is that ‘ a citizen is entitled to know on what charge or suspicion of what crime he is seized ’. It is sufficient to say that the arrest is under the section on the grounds that he is suspected of being a terrorist. ..." 20. The exercise of the power of arrest in section 11 (1) has been considered by the House of Lords in the case of McKee v. Chief Constable for Northern Ireland [1985] 1 All England Law Reports 1-4. In that case the House of Lords held that the proper exercise of the power of arrest in section 11 depended upon the state of mind of the arresting officer. It was necessary that the arresting officer suspected the person he was arresting to be a terrorist; otherwise the arrest was unlawful. He could form that suspicion on the basis of information given to him by his superior officer, but he could not arrest under section 11 on the instructions of a superior officer who held the necessary suspicion unless the arresting officer himself held that suspicion. Lord Roskill, with whom the other Law Lords agreed, stated that the suspicion need not be a reasonable suspicion but it had to be honestly held. The requirement of a suspicion in the mind of a constable was a subjective test. That being so, the courts could only enquire as to the bona fides of the existence of the suspicion. The only issues were whether the constable had a suspicion and whether it was honestly held. 21. In addition, an arrest without warrant is subject to the common law rules laid down by the House of Lords in the case of Christie v. Leachinsky [1947] Appeal Cases 573 at 587 and 600. The person arrested must in ordinary circumstances be informed of the true grounds for his arrest, in a language which he understands, at the time he is taken into custody, or, if special circumstances exist to excuse this, as soon thereafter as it is reasonably practicable to inform him. A person is validly arrested under section 11 (1) of the 1978 Act if he is informed that he is being arrested under this provision as a suspected terrorist (in re McElduff [1972] Northern Ireland Reports 1 and McKee v. Chief Constable, loc. cit.). 22. Section 11 (1) of the 1978 Act was replaced by section 6 of the Northern Ireland (Emergency Provisions) Act 1987, which came into effect on 15 June 1987, subsequent to the facts of the present case. This new provision is confined to conferring a power of entry and search of premises for the purpose of arresting persons under section 12 of the Prevention of Terrorism (Temporary Provisions) Act 1984 (now section 14 of the Prevention of Terrorism (Temporary Provisions) Act 1989 - see the Brogan and Others judgment previously cited, Series A no. 145-B, p. 22, § 30). These latter provisions expressly limit powers of arrest without a warrant to cases in which there are "reasonable grounds" for suspicion. C. Remedies 23. A person who believed that his arrest or detention under section 11 was unlawful had two remedies, namely (a) an action for writ of habeas corpus, whereby a detained person may make an urgent application for his release from custody, and (b) a civil action claiming damages for false imprisonment (see the Brogan and Others judgment previously cited, Series A no. 145-B, p. 25, §§ 39-41). In either action the review of lawfulness would have encompassed procedural questions such as whether the arrested person has been properly informed of the true grounds for his arrest (Christie v. Leachinsky, loc. cit.); and whether the conditions for arrest under section 11 (1) had been complied with. As noted above, a court would not have enquired into the reasonableness of the suspicion grounding the arrest but rather whether the suspicion of the arresting officer was an honest one (McKee v. Chief Constable, loc. cit.). PROCEEDINGS BEFORE THE COMMISSION 24. Mr Fox and Ms Campbell lodged their applications (nos. 12244/86 and 12245/86) with the Commission on 16 June 1986, and Mr Hartley lodged his application (no. 12383/86) on 2 September 1986. All three claimed that their arrest and detention were not justified under Article 5 § 1 (art. 5-1) of the Convention and that there had also been breaches of paragraphs 2, 4 and 5 of Article 5 (art. 5-2, art. 5-4, art. 5-5). They further alleged that, contrary to Article 13 (art. 13), they had no effective remedy before a national authority in respect of their Convention complaints. On 11 December 1986 the Commission ordered the joinder of the three applications pursuant to Rule 29 of its Rules of Procedure, and on 10 May 1988 it declared the case admissible. 25. In its report adopted on 4 May 1989 (Article 31) (art. 31) the Commission expressed the opinion that in relation to each applicant there had been violation of paragraphs 1, 2 and 5 of Article 5 (art. 5-1, art. 5-2, art. 5-5) (by 7 votes to 5) but not of paragraph 4 (art. 5-4) (by 9 votes to 3). It also concluded (unanimously) that no separate issue arose under Article 13 (art. 13). The full text of the Commission ’ s opinion and of the separate opinions contained in the report is reproduced as an annex to this judgment [*]. FINAL SUBMISSIONS TO THE COURT 26. At the public hearing on 26 March 1990 the Government maintained in substance the concluding submission set out in their memorial, whereby they requested the Court "to decide and declare in respect of each of the three applicants: ( i ) that the facts disclose no breach of paragraphs 1, 2, 4 or 5 of Article 5 (art. 5-1, art. 5-2, art. 5-4, art. 5-5) of the Convention; (ii) that the facts disclose no breach of Article 13 (art. 13) of the Convention, alternatively that no separate issue arises under Article 13 (art. 13) of the Convention". 27. On the same occasion the applicants likewise maintained in substance the submission made at the close of their memorial, whereby they requested the Court "to decide and declare in respect of each of the three applicants: ( i ) that the facts disclose a breach of paragraphs 1, 2, 4 and 5 of Article 5 (art. 5-1, art. 5-2, art. 5-4, art. 5-5) of the Convention; (ii) that the facts disclose a breach of Article 13 (art. 13) of the Convention". AS TO THE LAW I. GENERAL APPROACH 28. The applicants ’ complaints are directed against their arrest and detention under criminal legislation enacted to deal with acts of terrorism connected with the affairs of Northern Ireland. Over the last twenty years, the campaign of terrorism waged in Northern Ireland has taken a heavy toll, especially in terms of human life and suffering (see paragraph 15 above). The Court has already recognised the need, inherent in the Convention system, for a proper balance between the defence of the institutions of democracy in the common interest and the protection of individual rights (see the Brogan and Others judgment of 29 November 1988, Series A no. 145-B, p. 27, § 48). Accordingly, when examining these complaints the Court will, as it did in the Brogan and Others judgment, take into account the special nature of terrorist crime and the exigencies of dealing with it, as far as is compatible with the applicable provisions of the Convention in the light of their particular wording and its overall object and purpose. II. ALLEGED BREACH OF ARTICLE 5 § 1 (art. 5-1) 29. The applicants alleged a breach of Article 5 § 1 (art. 5-1) of the Convention, which, in so far as relevant, provides: "Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence ...; ..." They did not dispute that their arrest was "lawful" under Northern Ireland law for the purposes of this provision and, in particular, "in accordance with a procedure prescribed by law". 30. They did, however, argue that they had not been arrested and detained on "reasonable" suspicion of having committed an offence. Section 11 (1) of the 1978 Act, provided that "any constable may arrest without warrant any person whom he suspects of being a terrorist" (see paragraphs 9, 13 and 16 above). In their submission, this section was itself in direct conflict with Article 5 § 1 (c) (art. 5-1-c) in that it did not contain any requirement of reasonableness. They further agreed with the Commission ’ s opinion that their arrests had not been shown on the facts to have been based on reasonable suspicion. In addition, they maintained that the purpose of their arrest was not to bring them before the "competent legal authority" but rather to gather information without necessarily intending to charge them with a criminal offence. Both the respondent Government and the Commission rejected this contention. 31. For an arrest to be lawful under section 11 (1) of the 1978 Act, as construed by the House of Lords in the case of McKee v. Chief Constable for Northern Ireland, the suspicion needed only to be honestly held (see paragraph 20 above). In his report to Parliament in 1984, the Right Honourable Sir George Baker highlighted the fact that the test for section 11 was a "subjective one". On the other hand, where the requirement was "reasonable suspicion" he considered that the test was "objective" and that it was "for the court to judge the reasonableness of the suspicion" (see paragraph 19 above). Article 5 § 1 (c) (art. 5-1-c) speaks of a "reasonable suspicion" rather than a genuine and bona fide suspicion. The Court ’ s task, however, is not to review the impugned legislation in abstracto but to examine its application in these particular cases. 32. The "reasonableness" of the suspicion on which an arrest must be based forms an essential part of the safeguard against arbitrary arrest and detention which is laid down in Article 5 § 1 (c) (art. 5-1-c). The Court agrees with the Commission and the Government that having a "reasonable suspicion" presupposes the existence of facts or information which would satisfy an objective observer that the person concerned may have committed the offence. What may be regarded as "reasonable" will however depend upon all the circumstances. In this respect, terrorist crime falls into a special category. Because of the attendant risk of loss of life and human suffering, the police are obliged to act with utmost urgency in following up all information, including information from secret sources. Further, the police may frequently have to arrest a suspected terrorist on the basis of information which is reliable but which cannot, without putting in jeopardy the source of the information, be revealed to the suspect or produced in court to support a charge. As the Government pointed out, in view of the difficulties inherent in the investigation and prosecution of terrorist-type offences in Northern Ireland, the "reasonableness" of the suspicion justifying such arrests cannot always be judged according to the same standards as are applied in dealing with conventional crime. Nevertheless, the exigencies of dealing with terrorist crime cannot justify stretching the notion of "reasonableness" to the point where the essence of the safeguard secured by Article 5 § 1 (c) (art. 5-1-c) is impaired (see, mutatis mutandis, the Brogan and Others judgment previously cited, Series A no. 145-B, pp. 32-33, § 59). 33. The majority of the Commission, with whom the applicants agreed, were of the opinion that "the Government [had] not provided any information which would allow the Commission to conclude that the suspicions against the applicants at the time of their arrest were ‘ reasonable ’ within the meaning of Article 5 § 1 (c) (art. 5-1-c) of the Convention or that their arrest was based on anything more than the ‘ honestly held suspicion ’ which was required under Northern Ireland law" (see paragraph 61 of the Commission ’ s report). The Government argued that they were unable to disclose the acutely sensitive material on which the suspicion against the three applicants was based because of the risk of disclosing the source of the material and thereby placing in danger the lives and safety of others. In support of their contention that there was nevertheless reasonable suspicion, they pointed to the facts that the first two applicants had previous convictions for serious acts of terrorism connected with the Provisional IRA (see paragraph 12 above) and that all three applicants were questioned during their detention about specific terrorist acts of which they were suspected (see paragraphs 10 and 14 above). In the Government ’ s submission these facts were sufficient to confirm that the arresting officer had a bona fide or genuine suspicion and they maintained that there was no difference in substance between a bona fide or genuine suspicion and a reasonable suspicion. The Government observed moreover that the applicants themselves did not contest that they were arrested and detained in connection with acts of terrorism (see paragraph 55 of the Commission ’ s report). The Government also stated that, although they could not disclose the information or identify the source of the information which led to the arrest of the applicants, there did exist in the case of the first and second applicants strong grounds for suggesting that at the time of their arrest the applicants were engaged in intelligence gathering and courier work for the Provisional IRA and that in the case of the third applicant there was available to the police material connecting him with the kidnapping attempt about which he was questioned. 34. Certainly Article 5 § 1 (c) (art. 5-1-c) of the Convention should not be applied in such a manner as to put disproportionate difficulties in the way of the police authorities of the Contracting States in taking effective measures to counter organised terrorism (see, mutatis mutandis, the Klass and Others judgment of 6 September 1978, Series A no. 28, pp. 27 and 30-31, §§ 58 and 68). It follows that the Contracting States cannot be asked to establish the reasonableness of the suspicion grounding the arrest of a suspected terrorist by disclosing the confidential sources of supporting information or even facts which would be susceptible of indicating such sources or their identity. Nevertheless the Court must be enabled to ascertain whether the essence of the safeguard afforded by Article 5 § 1 (c) (art. 5-1-c) has been secured. Consequently the respondent Government have to furnish at least some facts or information capable of satisfying the Court that the arrested person was reasonably suspected of having committed the alleged offence. This is all the more necessary where, as in the present case, the domestic law does not require reasonable suspicion, but sets a lower threshold by merely requiring honest suspicion. 35. The Court accepts that the arrest and detention of each of the present applicants was based on a bona fide suspicion that he or she was a terrorist, and that each of them, including Mr Hartley, was questioned during his or her detention about specific terrorist acts of which he or she was suspected. The fact that Mr Fox and Ms Campbell both have previous convictions for acts of terrorism connected with the IRA (see paragraph 12 above), although it could reinforce a suspicion linking them to the commission of terrorist-type offences, cannot form the sole basis of a suspicion justifying their arrest in 1986, some seven years later. The fact that all the applicants, during their detention, were questioned about specific terrorist acts, does no more than confirm that the arresting officers had a genuine suspicion that they had been involved in those acts, but it cannot satisfy an objective observer that the applicants may have committed these acts. The aforementioned elements on their own are insufficient to support the conclusion that there was "reasonable suspicion". The Government have not provided any further material on which the suspicion against the applicants was based. Their explanations therefore do not meet the minimum standard set by Article 5 § 1 (c) (art. 5-1-c) for judging the reasonableness of a suspicion for the arrest of an individual. 36. The Court accordingly holds that there has been a breach of Article 5 § 1 (art. 5-1). This being so, it is not considered necessary to go into the question of the purpose of the applicants ’ arrests (see paragraph 30 above). III. ALLEGED BREACH OF ARTICLE 5 § 2 (art. 5-2) 37. The applicants alleged a violation of Article 5 § 2 (art. 5-2), which reads: "Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him." The Commission upheld this claim which was rejected by the Government. 38. In the applicants ’ submission, Article 5 § 1 (c) (art. 5-1-c) refers to the grounds justifying the arrest and these are what should be communicated to detainees. They argued that suspected terrorism in itself is not necessarily an offence justifying an arrest under section 11. Accordingly, in breach of Article 5 § 2 (art. 5-2) they were not given at the time of their arrest adequate and understandable information of the substantive grounds for their arrest. In particular, they maintained that the national authorities ’ duty to "inform" the person is not complied with where, as in their cases, the person is left to deduce from the subsequent police interrogation the reasons for his or her arrest. 39. The Government submitted that the purpose of Article 5 § 2 (art. 5-2) is to enable an arrested person to judge the lawfulness of the arrest and take steps to challenge it if he sees fit. They argued that the information given need not be detailed and that it was enough that the arrested person should be informed promptly of the legal basis of his detention and of the "essential facts relevant under (domestic law) for the determination of the lawfulness of his detention". Applying these principles to the facts of the present case they contended that the requirements of Article 5 § 2 (art. 5-2) were clearly met. 40. Paragraph 2 of Article 5 (art. 5-2) contains the elementary safeguard that any person arrested should know why he is being deprived of his liberty. This provision is an integral part of the scheme of protection afforded by Article 5 (art. 5): by virtue of paragraph 2 (art. 5-2) any person arrested must be told, in simple, non-technical language that he can understand, the essential legal and factual grounds for his arrest, so as to be able, if he sees fit, to apply to a court to challenge its lawfulness in accordance with paragraph 4 (art. 5-4) (see the van der Leer judgment of 21 February 1990, Series A no. 170, p. 13, § 28). Whilst this information must be conveyed "promptly" (in French:" dans le plus court délai "), it need not be related in its entirety by the arresting officer at the very moment of the arrest. Whether the content and promptness of the information conveyed were sufficient is to be assessed in each case according to its special features. 41. On being taken into custody, Mr Fox, Ms Campbell and Mr Hartley were simply told by the arresting officer that they were being arrested under section 11 (1) of the 1978 Act on suspicion of being terrorists (see paragraphs 9 and 13 above). This bare indication of the legal basis for the arrest, taken on its own, is insufficient for the purposes of Article 5 § 2 (art. 5-2), as the Government conceded. However, following their arrest all of the applicants were interrogated by the police about their suspected involvement in specific criminal acts and their suspected membership of proscribed organisations (see paragraphs 9, 10, and 14 above). There is no ground to suppose that these interrogations were not such as to enable the applicants to understand why they had been arrested. The reasons why they were suspected of being terrorists were thereby brought to their attention during their interrogation. 42. Mr Fox and Ms Campbell were arrested at 3.40 p.m. on 5 February 1986 at Woodbourne RUC station and then separately questioned the same day between 8.15 p.m. and 10.00 p.m. at Castlereagh Police Office (see paragraph 9 above). Mr Hartley, for his part, was arrested at his home at 7.55 a.m. on 18 August 1986 and taken to Antrim Police Station where he was questioned between 11.05 a.m. and 12.15 p.m. (see paragraph 13 above). In the context of the present case these intervals of a few hours cannot be regarded as falling outside the constraints of time imposed by the notion of promptness in Article 5 § 2 (art. 5-2). 43. In conclusion there was therefore no breach of Article 5 § 2 (art. 5-2) in relation to any of the applicants. IV. ALLEGED BREACH OF ARTICLE 5 § 4 (art. 5-4) 44. The applicants contended that, as the Convention had not been incorporated into United Kingdom law, they had been unable to challenge the lawfulness of their detention before the domestic courts in accordance with Article 5 § 4 (art. 5-4), which provides: "Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful." The majority of the Commission concluded that there had been no such violation. They were of the opinion that the important safeguard contained in Article 5 § 4 (art. 5-4) became devoid of purpose where, as in the present case, the detainees were released before a speedy determination of the lawfulness of the detention could take place. The Government submitted that the courts, in an action for habeas corpus, can examine both the procedural legality of the detention and whether the person was genuinely suspected of being a terrorist. In the alternative, they followed the Commission ’ s view. In reply, the applicants adopted the reasoning of Mr Danelius in his dissenting opinion in the Commission ’ s report. He took the view that the entitlement set out in Article 5 § 4 (art. 5-4) was also valid for short periods of detention; and that neither an application for habeas corpus nor a claim for damages for false imprisonment could ever secure this entitlement as interpreted by the Court in its Brogan and Others judgment (loc. cit., pp. 34-35, § 65), since the existence of a reasonable suspicion was not a condition for the lawfulness of an arrest effected under section 11 (1) of the 1978 Act. 45. Mr Fox and Ms Campbell were detained for approximately 44 hours, Mr Hartley for approximately 30 hours (see paragraphs 10 and 14 above). Mr Hartley brought no proceedings in connection with his arrest or detention (see paragraph 14 above). On the other hand, on the day following their arrest both Mr Fox and Ms Campbell instituted proceedings for habeas corpus, but they were released before the applications came on for hearing before a judge (see paragraph 11 above). All three applicants were released speedily before any judicial control of their detention had taken place. It is not for the Court to rule in abstracto as to whether, had this not been so, the scope of the remedies available would or would not have satisfied the requirements of Article 5 § 4 (art. 5-4). Accordingly, the Court does not find it necessary to examine the merits of the applicants ’ complaint under Article 5 § 4 (art. 5-4). V. ALLEGED BREACH OF ARTICLE 5 § 5 (art. 5-5) 46. The applicants further alleged a breach of Article 5 § 5 (art. 5-5), which reads: "Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article (art. 5) shall have an enforceable right to compensation." Their arrest and detention have been held to be in breach of paragraph 1 of Article 5 (art. 5-1) (see paragraph 36 above). This violation could not give rise, either before or after the findings made by this Court in the present judgment, to an enforceable claim for compensation by the victims before the Northern Ireland courts (see the above-mentioned Brogan and Others judgment, Series A no. 145-B, p. 35, § 67). There has therefore been a violation of paragraph 5 of Article 5 (art. 5-5) in respect of all three applicants. VI. ALLEGED BREACH OF ARTICLE 13 (art. 13) 47. Finally, the applicants submitted that the facts of their cases also disclosed a breach of Article 13 (art. 13), which provides: "Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity." In the light of its findings in paragraphs 43 and 45 above, the Court does not deem it necessary to examine this complaint. VII. APPLICATION OF ARTICLE 50 (art. 50) 48. By virtue of Article 50 (art. 50), "If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party." The applicants did not submit any claim for pecuniary damage. They did, however, seek substantial compensation in such amount as the Court considered equitable for the non-pecuniary damage allegedly suffered by each of them, together with the sum of £37,500 in respect of their costs and expenses referable to the proceedings before the Convention institutions. They expressed their willingness to endeavour to agree the appropriate amounts with the Government and only to refer the matter to the Court for assessment in default of such agreement. The Government considered it more appropriate to reserve their submissions as to the compensation claim until the delivery of the Court ’ s judgment on the substantive issues. In these circumstances, therefore, the Court considers that the question of the application of Article 50 (art. 50) is not ready for decision and must be reserved. | The Court held that there had been a violation of Article 5 § 1 (right to liberty and security) of the Convention, finding that the evidence provided was insufficient to establish that there had been an objectively determined “reasonable suspicion” for the arrests. |
621 | Freedom of expression in the employment context | RELEVANT DOMESTIC LAW 20. Act no. XXII of 2012 on the Labour Code, in force at the material time, provided as follows: Article 3 “(5) In the employment relationship, employees shall not engage in any conduct which would jeopardise the legitimate economic interests of the employer, unless so authorised by a legal regulation. ...” 21. Article IX of the Fundamental Law provides as follows: “1. Everyone shall have the right to freedom of speech. ...” THE LAW ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 22. The applicant complained that the termination of his employment on account of articles published on a website had infringed his right to freedom of expression as protected by Article 10 of the Convention, which reads as follows: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” Admissibility 23. The Government argued that the constitutional complaint mechanism had provided an effective remedy against the contested dismissal decision. They submitted that the Constitutional Court had adjudicated the applicant ’ s case in line with the standards set out in the Court ’ s case-law. Thus, the applicant ’ s right to freedom of expression had not been violated. 24. The applicant disputed the assertion that the Constitutional Court had remedied the grievances complained of, since it had dismissed his constitutional complaint for lack of a link to a right protected by the Fundamental Law. In any event, in the applicant ’ s view, a constitutional complaint in general could not be regarded as an effective remedy, owing to the low percentage of complaints that were upheld. 25. The Court notes that it is not disputed by the parties that the applicant availed himself of the remedy referred to by the Government. Indeed, the applicant lodged a constitutional complaint which was examined on the merits (see paragraphs 18 and 19 above). Thus, the Court is bound to conclude that the applicant complied with the obligation to exhaust domestic remedies. 26. Inasmuch as the Government ’ s submissions may be understood to suggest that the applicant had lost his victim status, the Court notes that the Constitutional Court dismissed the applicant ’ s complaint on 26 June 2017, concluding that the applicant ’ s conduct and the articles published were not protected by Article IX (1) of the Fundamental Law enshrining the right to freedom of expression (see paragraph 21 above). Thus, the decision did not involve any acknowledgment of the violation alleged, nor did it afford the applicant adequate redress. 27. In these circumstances, the Court considers that the applicant may still claim to be a victim of a violation of Article 10 of the Convention. 28. The Court also notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. MeritsThe parties ’ submissions The parties ’ submissions The parties ’ submissions (a) The applicant 29. The applicant contended that the articles published on the website had raised issues of professional and public interest concerning changes to the personal income tax regulations affecting four million employees. This had, however, been done in a general manner and the articles had not contained confidential information from his employer. In the applicant ’ s view there was no direct connection between the published articles and his former employer ’ s activities either: the website had served as a discussion forum for general human resources knowledge, without disseminating specific information about his work at Bank O. Therefore, the blog entries had caused no detriment to his former employer. 30. According to the applicant, the domestic courts had paid no heed to his arguments that he had been exercising his right to freedom of expression in the public interest, and had limited their analysis to finding that he had breached his contractual obligations. 31. He maintained that he had acted in good faith, raising issues and opinions in a credible, truthful and genuine manner. 32. He also pointed out that he had suffered the most serious legal consequences, since he had been dismissed from his employment. (b) The Government 33. The Government disputed that the applicant ’ s dismissal on account of the knowledge-sharing website had constituted an infringement of his right to freedom of expression as guaranteed by Article 10 § 1 of the Convention. They took the view, relying on the decision of the Constitutional Court, that the applicant ’ s activity did not enjoy the protection afforded to the right to freedom of expression, since it had not contributed to a discussion on a public matter, but had related almost exclusively to a specific profession. 34. In any event the Constitutional Court had adjudicated the applicant ’ s case in line with the standards set out in the Court ’ s case-law. The Court ’ s assessment (a) General principles 35. The general principles developed in the Court ’ s case-law concerning freedom of expression have been summarised in Medžlis Islamske Zajednice Brčko and Others v. Bosnia and Herzegovina ([GC], no. 17224/11, §§ 5 ‑ 77, 27 June 2017). 36. The Court has held in a number of cases involving the freedom of expression of civil servants that Article 10 applies to the workplace in general (see, for example, Kudeshkina v. Russia, no. 29492/05, § 85, 26 February 2009). The Court has also held that the signalling by an employee in the public sector of illegal conduct or wrongdoing in the workplace should, in certain circumstances, enjoy protection (see Guja v. Moldova [GC], no. 14277/04, § 72, ECHR 2008). It however also held that comments which lay within the applicant ’ s sphere of employment in the civil service and which had been made pursuant to his official duties did not involve any statements or views in the context of a public debate and did not relate to freedom of expression (see Harabin v. Slovakia, no. 58688/11, §§ 151-153, 20 November 2012). 37. The Court has further found that Article 10 of the Convention also applies when the relations between employer and employee are governed, as in the case at hand, by private law, and that the State has a positive obligation to protect the right to freedom of expression even in the sphere of relations between individuals (see Heinisch v. Germany, no. 28274/08, § 44, ECHR 2011 (extracts), with further references). The responsibility of the authorities would be engaged if the facts complained of stemmed from a failure on their part to secure to the applicants the enjoyment of the right enshrined in Article 10 of the Convention. While the boundary between the State ’ s positive and negative obligations under the Convention does not lend itself to precise definition, the applicable principles are, nonetheless, similar. In both contexts regard must be had in particular to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole, subject in any event to the margin of appreciation enjoyed by the State (see Palomo Sánchez and Others v. Spain [GC], nos. 28955/06 and 3 others, §§ 60 and 62, ECHR 2011). The Court has also found that this margin of appreciation is essential in an area as fluctuating as that of commercial speech. It follows that, where commercial speech is concerned, the standards of scrutiny may be less severe (see, mutatis mutandis, Demuth v. Switzerland, no. 38743/97, §§ 41-42, ECHR 2002 ‑ IX, and markt intern Verlag GmbH and Klaus Beermann v. Germany, 20 November 1989, § 33, Series A no. 165); and the margin of appreciation afforded to the national authorities is broad (see Ashby Donald and Others v. France, no. 36769/08, § 39, 10 January 2013). 38. As the Court has previously observed, in order to be fruitful, labour relations must be based on mutual trust. Even if the requirement to act in good faith in the context of an employment contract does not imply an absolute duty of loyalty towards the employer or a duty of discretion to the point of subjecting the worker to the employer ’ s interests, certain manifestations of the right to freedom of expression that may be legitimate in other contexts are not legitimate in that of labour relations (see Palomo Sánchez and Others, cited above, § 76). (b) Application of the above principles in the present case 39. In the present case the measure complained of by the applicant, namely his dismissal, was not taken by a State authority but by a private bank and was upheld by the domestic courts (see paragraphs 12 and 17 above). In those circumstances, the Court finds that it is appropriate to examine the application in terms of the positive obligations of the respondent State under Article 10 of the Convention. The Court will therefore ascertain whether, in the present case, the Hungarian judicial authorities, in dismissing the applicant ’ s claims, adequately secured his right to freedom of expression as guaranteed by Article 10 in the context of labour relations and balanced it against the employer ’ s right to protection of its commercial interests. 40. In the absence of any wrongdoing which the applicant might have sought to uncover, the Court does not find it necessary to enquire into the kind of issues which have been central to its case-law on whistle-blowing (compare Guja, cited above, §§ 73-78), but considers the following elements to be relevant when examining the permissible scope of the restriction of free speech in the employment relationship in the present case: the nature of the speech in question, the motives of the author, the damage, if any, caused by the speech to the employer, and the severity of the sanction imposed. (i) The nature of the speech 41. In rejecting the applicant ’ s argument that his conduct had amounted to the exercise of his right to freedom of expression, the Constitutional Court attributed importance to the nature of the speech on the impugned website. It found that reporting on matters which an employee had learned in general in the course of his or her employment was protected by the Fundamental Law to the extent that those matters were of public interest. In the present case, however, according to the Constitutional Court, the applicant ’ s speech had concerned information of a professional nature acquired by virtue of his employment at Bank O. and had addressed issues relevant only to a specific profession and not to the public as whole. Therefore, the applicant ’ s conduct was not protected by the fundamental right of freedom of expression (see paragraph 19 above). 42. The Court observes the domestic courts noted that the applicant had contributed as a private individual to a website on human resources policies providing information and opinion on recent developments in the field. Not excluding that the published articles might contribute, as alleged by the applicant (see paragraph 29 above), to the ongoing debate on tax issues, those courts found that the website conveyed information of a commercial nature, inviting discussion on the business practices of the audience; and, moreover, that the contested articles were addressed to a limited circle of professionals and did not directly concern the public as a whole. 43. However, as the Court has previously found, such information cannot be excluded from the scope of Article 10 § 1, which does not apply solely to certain types of information or ideas or forms of expression (see markt intern Verlag GmbH and Klaus Beermann, cited above, § 26). In other words, workplace-related free speech does not only protect comments that demonstrably contribute to a debate on a public matter. The Court cannot therefore agree with the finding of the Constitutional Court that comments made by an employee do not fall within the scope of protection of the right to freedom of expression on the grounds that they are of a professional nature and do not disclose any “public link” which would enable to clearly characterise them as part of a discussion on matters of public interest (see paragraph 19 above). (ii) The motives of the author 44. When examining the applicant ’ s motives, the Court is mindful of the fact that an act motivated by a personal grievance or a personal antagonism or the expectation of personal advantage, including pecuniary gain, would not justify a particularly strong level of protection (see Kudeshkina, cited above, § 95). In the present case, however, the Courts notes that the domestic courts did not find that the applicant had acted in pursuit of purely private interests or aired a personal grievance. There is no reason to question the applicant ’ s submission (see paragraph 29 above) to the effect that the issues raised on the website pertained to a profession and were published with the intention of sharing knowledge with and among the audience. (iii) The damage caused by the speech to the employer 45. As regards the damage, if any, suffered by Bank O., it is certainly true that without some degree of control over its employees ’ conduct, it would have little prospect of providing services effectively or pursuing its business strategies. This consideration is even more relevant in a situation where the material published concerned the subject-matter of the applicant ’ s employment, and the speech arguably owed its existence to the author ’ s professional responsibilities and professional knowledge. 46. The case before the domestic courts involved a factual dispute regarding the question whether the articles published conveyed information and opinions directly reflecting policies within Bank O. or more general information on human resources management. The Court observes the conclusion drawn by the Kúria in this regard, which held that the information shared by the applicant was closely related to his employment tasks (see paragraph 17 above). 47. The standard applied by the domestic courts in assessing whether the dissemination of such information had been detrimental to Bank O. and could justify the applicant ’ s dismissal was that of potential damage to legitimate business interests and the possibility of divulging business secrets. Thus, for the Kúria, the mere fact that the applicant had featured as an expert on the website and had authored a contribution on human resources management reflecting knowledge acquired through his work was sufficient to conclude that he had acted to his employer ’ s detriment. 48. The Court accepts that, under Hungarian law, employers are entitled to a degree of deference in deciding which conduct could lead to the disruption of working relations even without such disruption being manifest. However, in the present case neither the applicant ’ s employer nor the Kúria made any attempt to demonstrate in what way the speech in question could have adversely affected the business interests of Bank O. (iv) The severity of the sanction imposed 49. The Court also notes that a rather severe sanction was imposed on the applicant, namely the termination of his employment without any assessment of the availability of a less severe measure. (v) Conclusion 50. In sum, while it was for the domestic authorities to carry out a proper assessment of proportionality, the Court reiterates that the enjoyment of the right to freedom of expression should be secured even in the relations between employer and employee (see the case-law cited in paragraph 37 above). In the present case, the Court cannot discern any meaningful balancing of the interests at issue by the domestic courts: as noted above, the Constitutional Court found that the applicant ’ s fundamental right was not engaged (see paragraph 19 above) and the Kúria did not attribute any relevance to free speech in the present case. The substantive outcome of the labour dispute was dictated purely by contractual considerations between the applicant and Bank O. (see paragraph 17 above) and voided the applicant ’ s reliance on freedom of expression of any effect. 51. In the light of the above considerations, the Court finds that in the present case the domestic authorities have failed to demonstrate convincingly that the rejection of the applicant ’ s challenge against his dismissal was based on a fair balance between the applicant ’ s right to freedom of expression, on the one hand, and his employer ’ s right to protect its legitimate business interests, on the other hand. They therefore did not discharge their positive obligations under Article 10 of the Convention. 52. There has therefore been a violation of this provision. APPLICATION OF ARTICLE 41 OF THE CONVENTION 53. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” Damage 54. The applicant claimed 29,478 euros (EUR) in respect of pecuniary damage. This sum comprises the compensation for lost income which would have been awarded to him had he been successful in the domestic proceedings. He also claimed EUR 10,000 in respect of non-pecuniary damage. 55. The Government contested these claims. 56. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. As to non-pecuniary damage, the Court finds it appropriate to award the full sum claimed, that is to say, EUR 10,000, plus any tax that may be chargeable on that amount. Costs and expenses 57. The applicant also claimed EUR 1,468 for the costs and expenses incurred before the domestic courts. This amount corresponds to the court fees at three levels of jurisdiction and the legal expenses paid to the respondent. He also claimed EUR 3,421 for cost and expenses incurred before the Court, comprising EUR 3,000 for his lawyer ’ s fees, equal to thirty hours of legal work at an hourly rate of EUR 100, EUR 375 for translation costs, EUR 24 for postal costs and EUR 22 for copies of judicial documents. 58. The Government contested these claims. 59. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the total sum of EUR 4,800 covering costs under all heads. Default interest 60. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 10 (freedom of expression) of the Convention, finding that the domestic courts had failed to carry out an adequate exercise to balance the applicant’s right to freedom of expression against the bank’s right to protect its legitimate business interests. In particular, the Court disagreed with domestic court findings that articles on topics that were of interest to a professional audience could not benefit from free speech protection simply because they were not part of a debate of general public interest. |
968 | Internet | II. RELEVANT DOMESTIC LAW AND PRACTICE A. Constitution of Ukraine of 28 June 1996 21. Relevant extracts from the Constitution read as follows: Article 32 “... Everyone is guaranteed judicial protection of the right to rectify incorrect information about himself or herself and members of his or her family, and of the right to demand that any type of information be rectified, and also the right to compensation for pecuniary and non-pecuniary damage inflicted by the collection, storage, use and dissemination of such incorrect information.” Article 34 “Everyone is guaranteed the right to freedom of thought and speech, and to the free expression of his or her views and beliefs. Everyone has the right to freely collect, store, use and disseminate information by oral, written or other means of his or her choice. The exercise of these rights may be restricted by law in the interests of national security, territorial indivisibility or public order, with the purpose of preventing disturbances or crime, protecting the health of the population, the reputation or rights of other persons, preventing the publication of information received confidentially, or maintaining the authority and impartiality of justice.” B. Civil Code of 19 63 (repealed with effect from 1 January 2004) 22. Relevant extracts from the Civil Code read as follows: Article 7. Protection of honour, dignity and reputation “A citizen or an organisation shall be entitled to demand in a court of law that material be retracted if it is not true or is set out untruthfully, degrades their honour and dignity or reputation, or causes damage to their interests, unless the person who disseminated the information proves that it is true ... A citizen or an organisation concerning whom material has been disseminated that is untrue and damages their interests, honour, dignity or reputation shall be entitled to request compensation for pecuniary and non-pecuniary damage as well as a retraction of such information ... ” C. Civil Code of 2003 (in force from 1 January 2004) 23. The provisions of the Civil Code of 2003 pertinent to the case read as follows: Article 16 Judicial protection of civil rights and interests 1. Everyone has the right to apply to a court of law for the protection of his or her ... rights and interests. 2. The means of protection of civil rights and interests may include : 1) recognition of the right; 2) declaration of nullity of an act; 3) cessation of actions violating the right; 4) restoration of the situation which existed prior to the violation; 5) specific performance of an obligation; 6) modification of legal relations; 7) discontinuance of legal relations; 8) compensation for [pecuniary] damage ...; 9) compensation for [ non-pecuniary ] damage; 10) declaration of unlawfulness of a decision or action or of inactivity of a State body; ... The court may give protection to the civil right or interest by other means envisaged by a contract or law. ... ” Article 277 Retraction of untrue information “1. A physical person whose non-pecuniary rights have been infringed as a result of dissemination of untrue information about him or her and / or members of his or her family shall have the right to reply and [the right to] the retraction of that information. ... 3. Negative information disseminated about a person shall be considered untrue if the person who disseminated it does not prove the contrary. 4. Untrue information shall be retracted by the person who disseminated it ... 5. If the untrue information is contained in a document which has been accepted (issued) by a legal entity, that document shall be recalled. 6. A physical person whose non-pecuniary rights have been infringed in printed or other mass media shall have the right to reply and also [the right to] the retraction of the untrue information in the same mass media, in the manner envisaged by law ... Untrue information shall be retracted irrespective of whether or not the person who disseminated it is guilty. 7. Untrue information shall be retracted in the same manner as it was disseminated. ” D. Information Act of 2 October 1992 24. Relevant extracts from the Information Act provided, as worded at the material time, as follows: Section 20. Mass media “Printed mass media are periodical prints (press) – newspapers, magazines, bulletins – and occasional prints with a set circulation. Audiovisual mass media are radio, television, cinema, audio, video recordings and so on. The procedure of establishing ... of particular media shall be determined by the laws concerning such media.” Section 47. Liability for infringement of the legislation on information “... Liability for infringement of the legislation on information shall be borne by persons responsible for the following infringements: ... dissemination of untrue information that defames the honour and dignity of a person ...” Section 4 9. Compensation for pecuniary and non-pecuniary damage “If physical or legal persons have suffered pecuniary or non-pecuniary damage caused by an offence committed by an entity engaged in informational activities, those responsible [for the offence] shall compensate [for the damage] voluntarily or pursuant to a court decision ... ” E. Printed Mass Media (Press) Act of 16 November 1992 25. Relevant extracts from the Press Act provide: Section 1. Printed mass media (press) in Ukraine “Printed mass media (press) in Ukraine, as referred to in this Act, are [defined as] periodical and continuing publications issued under a permanent name [at least] once a year pursuant to a certificate of State registration ... ” Section 7. Entities engaged in printed mass media activities “Entities engaged in printed mass media activities shall include [ their ] founders ( or co - founders ), editors ( or editors - in - chief ), editorial boards ... ” Section 2 1. Editorial board of the printed mass media “The editorial board ... shall prepare and issue printed mass media under the instructions of its founder (or co-founders). The editorial board shall act on the basis of its organisational charter and shall implement the programme of the printed mass media approved by its founder (or co ‑ founders). The editorial board ... shall acquire the status of a legal entity from the day of State registration, which shall be carried out in accordance with the legislation of Ukraine .” Section 2 1. Editor (editor-in-chief) of the printed mass media “The editor (or editor-in-chief) ... shall be the head of the editorial board, authorised by the founder (or co-founders). The editor (or editor-in-chief) ... shall manage the editorial board ’ s activities within his competence, as envisaged by its organisational charter, shall represent the editorial board in its relations with the founder (or co-founders), the publisher, authors, State organs, associations of citizens, and individual citizens, as well as before the courts and arbitration tribunals and shall be responsible for compliance with the [legislative] requirements as to the activities of the printed media, its editorial board ...” Section 26. State registration of the printed mass media “ ... All printed mass media in Ukraine shall be subject to State registration, irrespective of the area of its dissemination, circulation and the manner of its creation ...” Section 32. Publishing data “Every issue of printed mass media shall contain the following publishing data: ( 1) name of publication ... Distribution of [publications] without publishing data shall be prohibited.” Section 37. Retraction of information “Citizens, legal entities and State organs, and their legal representatives shall have the right to demand that the editorial board of the printed mass media publish a retraction of information disseminated about them which is untrue or defames their honour and dignity. If the editorial board does not have any evidence that the content published by it is true, it must, if requested by the claimant, publish a retraction of such information in the next issue of the printed mass media in question or publish the retraction on its own initiative ...” Section 41. Grounds for liability “ Editorial boards, founders, publishers, distributors, State organs, organisations and associations of citizens shall be liable for infringements of the legislation on the printed mass media. Infringements of Ukrainian legislation on the printed mass media are: 1) violations envisaged by section 47 of the Information Act ... For such an infringement the guilty party shall incur disciplinary, civil, administrative or criminal liability in accordance with the current legislation of Ukraine. The journalist ... editor (or editor-in-chief) or other persons with whose permission the material which violates this Act has been published shall bear the same liability for abuse of the freedom of the printed mass media as the authors of that material.” Section 42. Exemption from liability “ The editorial board and journalists are not liable for the publication of material that is untrue, defames the honour and dignity of citizens and organisations, infringes the rights and lawful interests of citizens, or constitutes abuse of the freedom of the printed mass media and the rights of journalists if 1) the information has been received from news agencies or from the founder (co ‑ founders ) [of the media source]; 2) the information is contained in a reply given in accordance with the Information Act to a request for access to official documents and to a request for written or oral information; 3) the information is a verbatim reproduction of official speeches of the officials of State organs, organisations and associations of citizens; 4) the information is a verbatim reproduction of material published by other printed mass media and contains a reference to [the latter]; 5) the information contains secrets that are specifically protected by law, where the journalist has not obtained this information unlawfully.” F. State Support of Mass Media and Social Protection of Journalists Act of 23 September 1997 26. Relevant extracts from the Act provide: Section 17. Liability for trespass or other actions against the life and health of a journalist and a journalist ’ s liability for non-pecuniary damage caused by him “... In the process of consideration by a court of a dispute concerning non-pecuniary damage between a journalist or mass media, as a defendant party, and a political party, electoral bloc, [or] an office holder (or office holders), as a claimant, the court may award compensation in respect of non-pecuniary damage only if the journalist or officials of the media [acted] intentionally. The court shall take into account the outcome of the use by the claimant of extrajudicial, in particular pre-trial, opportunities for retraction of untrue material, defending his honour and dignity and reputation, and settlement of the entire dispute. Having regard to the circumstances, the court may refuse compensation in respect of non-pecuniary damage. The intention of the journalist and/or official of the media means his or their stance with regard to dissemination of information where the journalist and/or official of the media are aware that the information is untrue and have anticipated its socially injurious consequences. The journalist and/or the mass media shall not incur liability for dissemination of untrue information if the court establishes that the journalist acted in good faith and checked the information.” G. Resolution of the Plenary Supreme Court of Ukraine of 27 February 2009 on judicial practice in cases concerning the protection of the honour and dignity of a physical person, and of the reputation of a physical person and legal entity 27. The relevant extracts from the Resolution of the Plenary Supreme Court read as follows: “26. Under Article 19 of the Constitution of Ukraine, the legal order in Ukraine is based on [the principle] according to which no one shall be forced to do what is not envisaged by the legislation. In turn, Article 34, paragraph 1, of the Constitution of Ukraine guarantees everyone the right to freedom of thought and speech, and to the free expression of his or her views and beliefs. A court has no power to oblige a respondent to apologise to a claimant ... as a forced apology is not envisaged by Articles 16 [and] 277 [of the Civil Code of 2003] as a means of judicial protection of honour, dignity, [and] business reputation [in case of] dissemination of untrue information.” H. Judicial practice of the Supreme Court in cases concerning the application of Articles 16 and 277 of the Civil Code of 2003 28. The Supreme Court confirmed the Plenary ’ s approach in a defamation case, having quashed the lower courts ’ decisions by which a respondent was ordered, inter alia, to apologise as legally unfounded. In particular, the relevant extract of the Supreme Court ’ s judgment (dated 17 June 2009) reads as follows: “ ... The court[s] are not entitled to oblige a respondent to apologise to a claimant in one form or another, as Articles 16 [and] 277 [of the Civil Code of 2003] do not provide for a forced apology as a means of judicial protection of honour, dignity, [and] business reputation [in case of] dissemination of untrue information; compulsion of a person to change his/her beliefs is an interference with the freedom of speech and expression guaranteed by the Constitution of Ukraine and Article 10 of the Convention ... ” II. Relevant COUNCIL OF EUROPE AND international material A. Recommendation CM/ Rec (2007)16 of the Committee of Ministers to member states on measures to promote the public service value of the Internet 29. At their 1010th meeting on 7 November 2007 the Ministers ’ Deputies considered essential aspects of the use of new information and communication technologies and services, in particular the Internet, in the context of protection and promotion of human rights and fundamental freedoms. They acknowledged the increasingly important role the Internet was playing in providing diverse sources of information to the public and people ’ s significant reliance on the Internet as a tool for communication. 30. It was noted however that the Internet could, on the one hand, significantly enhance the exercise of human rights and fundamental freedoms, such as the right to freedom of expression, while, on the other hand, the Internet might adversely affect other rights, freedoms and values, such as the respect for private life and secrecy of correspondence and for the dignity of human beings. 31. The Ministers ’ Deputies adopted recommendations to the Council of Europe ’ s member states with regard to the governance of the Internet. These included recommendation to elaborate a clear legal framework delineating the boundaries of the roles and responsibilities of all key stakeholders in the field of new information and communication technologies and to encourage the private sector to develop open and transparent self- and co-regulation on the basis of which key actors in this field could be held accountable. B. Joint Declaration by the UN Special Rapporteur on Freedom of Opinion and Expression, the OSCE Representative on Freedom of the Media and the OAS Special Rapporteur on Freedom of Expression, adopted on 21 December 2005 32. The growing importance of the Internet as a vehicle for facilitating in practice the free flow of information and ideas was also recognised in the Joint Declaration issued by Mr A. Ligabo, Mr M. Haraszti and Mr E. Bertoni. They stressed the need for strict application of international guarantees of freedom of expression to the Internet. In that context, it was stated that no one should be liable for content on the Internet of which they were not the author, unless they had either adopted that content as their own or refused to obey a court order to remove that content. THE LAW I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 33. The applicants complained that their right to freedom of expression had been violated in that the courts had allowed G. T. ’ s claim concerning content published in Pravoye Delo on 19 September 2003. They stated that the interference had neither been in accordance with the law nor necessary in a democratic society. The applicants relied on Article 10 of the Convention, which reads as follows: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” A. Admissibility 34. The Government submitted that the applicants could not claim to be victims of a violation of Article 10 of the Convention, as the interference with their right to freedom of expression had been based on the decisions of the domestic courts. The applicants did not complain under Article 6 § 1 of the Convention that the impugned court proceedings had been unfair, and there had been no irregularities in those proceedings and the Court had limited jurisdiction regarding the assessment of facts and the application of law by domestic courts. On these grounds, they invited the Court to declare the application incompatible ratione personae with the provisions of the Convention. 35. The applicants disagreed. 36. The Court considers that the Government ’ s objection is closely linked to the substance of the applicants ’ complaints under Article 10 of the Convention and that it must therefore be joined to the merits. 37. The Court further notes that the application is not manifestly ill ‑ founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. Submissions of the parties ( a ) The applicants 38. The applicants argued that the domestic legislation concerning the liability of the press for defamation lacked clarity and foreseeability and that the domestic courts had disregarded the relevant legislative guarantees against punishment for unverified statements made by journalists. They submitted that the courts had not taken into account the fact that they had not disseminated information about G. T., that the second applicant had not given his permission for the publication of the material, that they had sufficiently distanced themselves from the publication, and that G. T. had not used the opportunity of asking the editorial board for a retraction before bringing defamation proceedings in the courts. 39. The second applicant also contended that Ukrainian law did not provide for an obligation to apologise as a sanction for defamation. 40. The applicants further submitted that they had disseminated the material, which had already been published on the Internet, with a view to promoting further discussion of the important political issues raised in the material. They stated that the amount of compensation which they had been required to pay had been too high given the annual income of the newspaper, and had placed a disproportionate burden on them. In this context, they stated that they had had to discontinue publishing Pravoye Delo. ( b ) The Government 41. The Government submitted that the interference with the applicants ’ right to freedom of expression had been lawful in that it had been based on the clear, accessible and foreseeable provisions of the domestic law, namely, on Article 7 of the Civil Code of 1963, section 47 of the Information Act of 2 October 1992, and sections 1, 32 and 42 of the Printed Mass Media (Press) Act of 16 November 1992, as applied by the national courts in the applicants ’ case. 42. The Government further submitted that the interference had been aimed at protecting the honour, dignity and business reputation of a private person whose rights had been prejudiced by the publication at issue. According to them, this had been a legitimate aim within the meaning of Article 10 § 2 of the Convention, which the applicants did not deny. 43. The Government argued that the publication had contained serious factual allegations directed against a prominent public figure who had contributed to the development of sports in Ukraine. The applicants had failed to prove those allegations. The fact that they had reproduced the material obtained from a website had not been sufficient to relieve them of that obligation, as the legal status of information derived from the Internet had not been determined under the domestic law. Therefore, the Government stated that the interference had been necessary in the present case. 44. They also submitted that the applicants had not actually been required to pay the compensation awarded by the courts to the claimant, as they had settled the matter at the stage of enforcement of the judgment of 7 May 2004. According to the Government, it had not been proved by the applicants that they had discontinued publishing their newspaper because of the interference at issue. 45. Relying on the Court ’ s decision on admissibility in the case of Vitrenko and Others v. Ukraine ((dec.), no. 23510/02, 16 December 2008), the Government contended that the court ’ s order to apologise had not been contrary to the principles embodied in Article 10 of the Convention. 46. On the above grounds, the Government stated that the impugned interference had not been disproportionate. 2. The Court ’ s assessment (a) Whether there was an interference with the right to freedom of expression 47. The Court observes that the publication at issue involved defamatory statements of fact. According to the findings of the civil courts, it was stated that a public figure, the President of the Ukraine National Thai Boxing Federation, was a member of an organised criminal group and “a coordinator and sponsor of murders”. The applicants had failed to show that those statements were true and the courts ordered them to publish a retraction and apology and to compensate the person concerned for the non ‑ pecuniary damage caused by the publication. 48. The Court considers that the courts ’ decisions constituted an interference with the applicants ’ right to freedom of expression. 49. The Court reiterates that its task in exercising its supervisory function under Article 10 of the Convention is to look at the interference complained of in the light of the case as a whole and, in particular, to determine whether the reasons adduced by the national authorities to justify it are relevant and sufficient (see, among many other authorities, Fressoz and Roire v. France [GC], no. 29183/95, § 45, ECHR 1 999-I). This inevitably entails a review of the decisions taken by the courts at the domestic level, irrespective of whether any complaints have been raised concerning the courts ’ compliance with the procedural guarantees under Article 6 of the Convention. Therefore, the Court dismisses the Government ’ s objection as to the applicants ’ victim status. 50. The Court will now examine whether the interference was justified under Article 10 § 2 of the Convention. ( b ) Whether the interference was prescribed by law 51. The Court notes that the first and most important requirement of Article 10 of the Convention is that any interference by a public authority with the exercise of the freedom of expression should be lawful: the first sentence of the second paragraph essentially envisages that any restriction on expression must be “prescribed by law”. In order to comply with this requirement, interference does not merely have to have a basis in domestic law. The law itself must correspond to certain requirements of “quality”. In particular, a norm cannot be regarded as a “law” unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail (see, for example, Lindon, Otchakovsky -Laurens and July v. France [GC], nos. 21279/02 and 36448/02, § 41, ECHR 2007 ‑ XI ). 52. The degree of precision depends to a considerable extent on the content of the instrument at issue, the field it is designed to cover, and the number and status of those to whom it is addressed (see Groppera Radio AG and Others v. Switzerland, 28 March 1990, § 68, Series A no. 173 ). The notion of foreseeability applies not only to a course of conduct, of which an applicant should be reasonably able to foresee the consequences, but also to “formalities, conditions, restrictions or penalties ”, which may be attached to such conduct, if found to be in breach of the national laws (see, mutatis mutandis, Kafkaris v. Cyprus [GC], no. 21906/04, § 140, ECHR 2008 ‑ ...). 53. Turning to the circumstances of the present case, the Court observes that the applicants ’ submissions regarding the question of the lawfulness of the interference essentially concern two specific issues, namely, the alleged lack of clarity and foreseeability of the relevant legislative provisions concerning journalists ’ specific safeguards and the alleged absence of legal grounds for an obligation to apologise in cases of defamation. (i) Measures envisaged by Ukrainian law in cases of defamation 54. As regards the latter issue, the Court observes that Ukrainian law provides that, in cases of defamation, injured parties are entitled to demand a retraction of untrue and defamatory statements and compensation for damage. Both measures were applied in the applicants ’ case. However, in addition to those measures, the courts ordered the second applicant to publish an official apology in the newspaper. The Court observes that such a measure was not specifically provided for in the domestic law. 55. The Court has already dealt with a similar situation in a case against Russia. In that case it was prepared to accept that the interpretation by the domestic courts of the notions of retraction or rectification under the relevant legislation as possibly including an apology was not such as to render the impugned interference unlawful within the meaning of the Convention (see Kazakov v. Russia, no. 1758/02, § 24, 18 December 2008 ). 56. However, in contrast to the aforementioned case, the present case contains no evidence or, at the least, a persuasive argument that Ukrainian courts were inclined to give such a broad interpretation to the legal provisions concerning the measures applicable in cases of defamation or that that was their general approach in such cases. 57. The Court further observes that, despite the second applicant ’ s specific and pertinent complaints in that connection, the domestic courts failed to give any explanation for the obvious departure from the relevant domestic rules (see paragraph 17 above). The Government ’ s submissions in that regard did not clarify the issue either. 58. As can be seen from the relevant domestic judicial practice, though subsequent to the events at issue, imposition of an obligation to apologise in defamation cases may run counter to the constitutional guarantee of freedom of expression (see paragraphs 27-28 above). 59. In these circumstances, the Court finds that the court ’ s order to the second applicant to apologise was not prescribed by law and that accordingly there has been a violation of Article 10 of the Convention in that regard. (ii) Journalists ’ specific safeguards in Ukrainian law 60. The Court observes that the publication at issue was a verbatim reproduction of material downloaded from a publicly accessible internet newspaper. It contained a reference to the source of the material and comments by the editorial board, in which they formally distanced themselves from the content of the material. 61. Ukrainian law – specifically the Press Act – exempts journalists from civil liability for verbatim reproduction of material published in the press (see paragraph 2 5 above). The Court notes that this provision generally conforms to its approach to journalists ’ freedom to disseminate statements made by others (see, for instance, Jersild v. Denmark, 23 September 1994, § 35, Series A no. 298, and Thoma v. Luxembourg, no. 38432/97, § 62, ECHR 2001 ‑ III ). 62. However, according to the domestic courts, no such immunity existed for journalists reproducing material from internet sources not registered pursuant to the Press Act. In this connection, the Court observes that there existed no domestic regulations on State registration of internet media and that, according to the Government, the Press Act and other normative acts regulating media relations in Ukraine did not contain any provisions on the status of internet-based media or the use of information obtained from the Internet. 63. It is true that the Internet is an information and communication tool particularly distinct from the printed media, especially as regards the capacity to store and transmit information. The electronic network, serving billions of users worldwide, is not and potentially will never be subject to the same regulations and control. The risk of harm posed by content and communications on the Internet to the exercise and enjoyment of human rights and freedoms, particularly the right to respect for private life, is certainly higher than that posed by the press. Therefore, the policies governing reproduction of material from the printed media and the Internet may differ. The latter undeniably have to be adjusted according to the technology ’ s specific features in order to secure the protection and promotion of the rights and freedoms concerned. 64. Nevertheless, having regard to the role the Internet plays in the context of professional media activities (see paragraphs 29-32 above) and its importance for the exercise of the right to freedom of expression generally (see Times Newspapers Ltd v. United Kingdom (nos. 1 and 2), no. 3002/03 and 23676/03, § 27, 10 March 2009 ), the Court considers that the absence of a sufficient legal framework at the domestic level allowing journalists to use information obtained from the Internet without fear of incurring sanctions seriously hinders the exercise of the vital function of the press as a “public watchdog” (see, mutatis mutandis, Observer and Guardian v. the United Kingdom, 26 November 1991, § 59, Series A no. 216 ). In the Court ’ s view, the complete exclusion of such information from the field of application of the legislative guarantees of journalists ’ freedom may itself give rise to an unjustified interference with press freedom under Article 10 of the Convention. 65. The Court further observes that under Ukrainian law journalists cannot be required to pay compensation in defamation cases if they did not disseminate the untrue information intentionally, acted in good faith and verified the information, or if the injured party failed to use the available possibilities to settle the dispute before going to court (see paragraph 2 6 above). In the domestic proceedings, the applicants explicitly raised the defence of qualified privilege under the relevant legal provision. In particular, they argued that they had not acted with malicious intent to defame the claimant by publishing the material in question and that the public had an interest in receiving the information. Furthermore, they argued that by reproducing the material previously published on the Internet, their intention had been to promote debate and discussion on political matters of significant public interest. They also argued that the claimant had not taken any steps to settle the dispute with them despite the fact that in the same publication they had invited any person concerned to comment. Their plea was entirely ignored by the courts, however. 66. The Court therefore finds that, given the lack of adequate safeguards in the domestic law for journalists using information obtained from the Internet, the applicants could not foresee to the appropriate degree the consequences which the impugned publication might entail. This enables the Court to conclude that the requirement of lawfulness contained in the second paragraph of Article 10 of the Convention was not met. 67. In these circumstances, the Court does not consider it necessary to deal with the parties ’ remaining submissions concerning this provision or to examine the proportionality of the interference at issue. 68. Accordingly, there has been a violation of Article 10 of the Convention as regards this aspect of the case. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 69. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Submissions of the first applicant 70. The first applicant submitted that the appropriate just satisfaction in this case would be a finding of a violation of Article 10 of the Convention and an indication of general measures to be adopted by Ukraine to bring its legislation and judicial practice into compliance with “European standards of freedom of expression” as regards the use of “socially important information, available on the Internet, the credibility of which is open to question .” 71. The Government did not comment on this aspect of the case. 72. Having regard to the circumstances of the present case and the conclusions the Court has reached under Article 10 of the Convention (see paragraphs 64-68 above ), it does not consider it necessary to examine this case under Article 46 of the Convention with a view to indicating specific measures that might be taken in order to put an end to a violation found in the case (see, mutatis mutandis, Broniowski v. Poland [GC], no. 31443/96, § 19 4, ECHR 2004-V ). The Court also notes that there is no call to award the first applicant any sum for just satisfaction. B. Submissions of the second applicant 1. Damage 73. The second applicant claimed 7,000 euros (EUR) for non-pecuniary damage. 74. The Government contested the second applicant ’ s claim. 75. The Court considers that the second applicant suffered some distress and anxiety on account of the violations of his right to freedom of expression. Ruling on an equitable basis, as required by Article 41 of the Convention, it awards him EUR 6 ,000 in this connection. 2. Costs and expenses 76. The second applicant made no claim in respect of costs and expenses. Therefore, the Court makes no award under this head. 3. Default interest 77. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that the order to the editor-in-chief to apologise had not been done in accordance with the law, and had, therefore, been in violation of Article 10 (freedom of expression) of the Convention. It further held that there had been a violation of Article 10 because of the lack of adequate safeguards for journalists using information obtained from the Internet. Notably, “having regard to the role the Internet plays in the context of professional media activities ... and its importance for the exercise of the right to freedom of expression generally ..., the Court consider[ed] that the absence of a sufficient legal framework at the domestic level allowing journalists to use information obtained from the Internet without fear of incurring sanctions seriously hinders the exercise of the vital function of the press as a ‘public watchdog’ ...” (§ 64 of the judgment). |
791 | Conditions of detention | II. RELEVANT INTERNATIONAL AND DOMESTIC LAW A. International law 1. Convention on the Rights of Persons with Disabilities, adopted by the United Nations General Assembly on 13 December 2006 (Resolution A/RES/61/106) 78. The Convention entered into force on 3 May 2008, was signed by Latvia on 18 July 2009 and ratified on 1 March 2010. The relevant parts provide: Article 2 - Definitions “For the purposes of the present Convention: ... ‘Reasonable accommodation’ means necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms; ...” Article 14 - Liberty and security of the person “2. States Parties shall ensure that if persons with disabilities are deprived of their liberty through any process, they are, on an equal basis with others, entitled to guarantees in accordance with international human rights law and shall be treated in compliance with the objectives and principles of this Convention, including by provision of reasonable accommodation.” 79. In Interim Report of 28 July 2008 (A/63/175), the then UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Mr Manfred Nowak, noted as follows: “50. ... Persons with disabilities often find themselves in [situations of powerlessness], for instance when they are deprived of their liberty in prisons or other places ... In a given context, the particular disability of an individual may render him or her more likely to be in a dependant situation and make him or her an easier target of abuse ... ... 53. States have the further obligation to ensure that treatment or conditions in detention do not directly or indirectly discriminate against persons with disabilities. If such discriminatory treatment inflicts severe pain or suffering, it may constitute torture or other form of ill-treatment. ... 54. The Special Rapporteur notes that under article 14, paragraph 2, of the CRPD, States have the obligation to ensure that persons deprived of their liberty are entitled to ‘provision of reasonable accommodation’. This implies an obligation to make appropriate modifications in the procedures and physical facilities of detention centres ... to ensure that persons with disabilities enjoy the same rights and fundamental freedoms as others, when such adjustments do not impose disproportionate or undue burden. The denial or lack of reasonable accommodation for persons with disabilities may create detention ... conditions that amount to ill-treatment and torture.” 2. Council of Europe material 80. The relevant extracts from the 3rd General Report (CPT/Inf (93) 12; 4 June 1993) by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) read as follows: e. Humanitarian assistance “64. Certain specific categories of particularly vulnerable prisoners can be identified. Prison health care services should pay especial attention to their needs.” ... iv) prisoners unsuited for continued detention “70. Typical examples of this kind of prisoner are those who are the subject of a short ‑ term fatal prognosis, who are suffering from a serious disease which cannot be properly treated in prison conditions, who are severely handicapped or of advanced age. The continued detention of such persons in a prison environment can create an intolerable situation. In cases of this type, it lies with the prison doctor to draw up a report for the responsible authority, with a view to suitable alternative arrangements being made.” g. Professional competence “76. To ensure the presence of an adequate number of staff, nurses are frequently assisted by medical orderlies, some of whom are recruited from among the prison officers. At the various levels, the necessary experience should be passed on by the qualified staff and periodically updated. Sometimes prisoners themselves are allowed to act as medical orderlies. No doubt, such an approach can have the advantage of providing a certain number of prisoners with a useful job. Nevertheless, it should be seen as a last resort. Further, prisoners should never be involved in the distribution of medicines. 77. Finally, the CPT would suggest that the specific features of the provision of health care in a prison environment may justify the introduction of a recognised professional speciality, both for doctors and for nurses, on the basis of postgraduate training and regular in-service training.” 81. Recommendation no. R (98) 7 of the Committee of Ministers of 8 April 1998 concerning the ethical and organisational aspects of health care in prison, provides, in so far as relevant: THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF THE EVENTS OF 10 SEPTEMBER 2001 86. The applicant alleged that the police officers had ill-treated him on 10 September 2001. He also complained about the investigation into these events. The Court considers that this complaint falls to be examined under Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Admissibility 1. Parties’ submissions 87. The Government argued that the applicant had not exhausted the domestic remedies available to him under sections 220 and 222 of the former Code of Criminal Procedure. They pointed out that he had failed to complain about the decision of 27 November 2001 to a higher-ranking prosecutor; he could have done so either orally or in writing. In this connection, the Government noted that the applicant had been able to lodge a complaint with the doctor of the Prison Hospital around the same time, and moreover that he had been represented by counsel in the criminal proceedings, who could have lodged complaints on his behalf. In any event, the Government argued that the applicant had not complied with the six ‑ month time-limit, since he had lodged his application with the Court on 31 January 2003, whereas the final decision had been adopted on 27 November 2001. It was their view that the trial court could not be considered an effective remedy, considering the lapse of time of almost nine months between the moment the alleged violation took place and the moment the issue was raised before the trial court. The Government argued that even if the trial court had instituted criminal proceedings, they could only have sent the case materials to the prosecutor’s office for a repeated investigation. 88. The applicant admitted that he had not appealed against the decision to refuse the institution of criminal proceedings. He considered the remedy ineffective. Firstly, the decision had contained a reference to section 212 of the former Code of Criminal Procedure, which was incorrect since the relevant provision at that time had been section 112. The Government’s reliance on sections 220 and 222 of the former Code of Criminal Procedure was also misguided, since those sections referred only to challenging the actions of investigators and not to refusals to institute criminal proceedings at all. In any event, the applicant submitted that he had not been informed of his rights to complain about the decision. Secondly, at the time the decision had been adopted, the applicant had been in the Prison Hospital suffering from severe pain, and it had been extremely difficult for him to challenge the decision on account of the state of his health. Since the applicant did not consider this remedy effective, he had brought his complaints to the attention of the trial court within the criminal proceedings against him. Referring to the judgment of 4 June 2002, the applicant pointed out that the Jelgava Court had in fact examined his allegations of ill-treatment, but had found the police officers’ statements and the results of the forensic examination sufficient to reject them. The applicant pointed out that under section 257 of the former Code of Criminal Procedure, the trial court had the competence to institute criminal proceedings against third parties. It was therefore his view that the trial court had been the proper remedy in his case and that he had submitted his application within the requisite six-month time-limit. 2. The Court’s assessment 89. The Court considers that the Government’s preliminary objections are closely related to the merits of the applicant’s complaint. It will therefore examine them together with the merits of this complaint (see Timofejevi v. Latvia, no. 45393/04, 11 December 2012, § 84). 90. The Court notes that this complaint is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. Parties’ submissions (a) The applicant 91. The applicant maintained that he had been subjected to physical ill ‑ treatment by the police officers. He referred to the medical evidence obtained from the public and specialist hospitals, which confirmed that he had not only had a hyperextension injury, but also a contusion to the lower back and broken fixing screws that had held the metal implant supporting his spine in place. The applicant submitted that the forensic examination which had been carried out two months later, which allegedly “did not establish any bodily injuries”, could not be the basis for disregarding the medical evidence available. 92. Furthermore, although discharged from the specialist hospital the day after his admission, he had subsequently been admitted to the Prison Hospital for a total duration of 111 days within a four-and-a-half year period. Meanwhile, he had become paraplegic and he had been certified as being Category 1 disabled. That, together with the above-mentioned injury, was sufficient to establish that the alleged ill-treatment had taken place, and that the police officers’ conduct was sufficiently severe to fall within the scope of Article 3 of the Convention. 93. The applicant also argued that his conduct during the arrest had not warranted severe physical force by the police officers and that the force used on him had been disproportionate. The police officers had acted aggressively towards him as he had tried to escape. 94. The applicant submitted that the investigation into his complaint had been ineffective. To his knowledge, it had been limited to a questioning of the police officers, his confrontation with those officers, and the forensic examination. It remained unclear why the diagnoses of the public and specialist hospitals had been disregarded by the investigators and the forensic expert. He reiterated that their records had indicated that he had sustained bodily injuries. The applicant further noted that no witnesses had been questioned for the purposes of the investigation, which he had considered crucial in view of the fact that the medical evidence and the statements of the applicant and the police officers were all conflicting. (b) The Government 95. The Government contested that the applicant had been subjected to ill-treatment contrary to Article 3 of the Convention. They did not dispute the fact that on the day after his arrest, he had been taken to the specialist hospital in view of his complaints concerning lower back pain. The Government admitted that a hyperextension injury had been established, but noted that the applicant had a pre-existing spinal injury which had already been operated on. They pointed out that the doctors had not established any visible bodily injuries on the applicant’s body. The Government relied on the police officers’ statements, and argued that during his arrest the applicant had been aggressive and drunk. Having seen a gun in his pocket, the officers had pushed him to the ground, had pulled his arms backwards and had handcuffed him. The Government admitted that the applicant’s spine had been twisted backwards extensively and that that a certain degree of force must have been used on him. They acknowledged that the applicant’s pain might have been caused by the police officers’ conduct. 96. However, the Government were of the view that the police officers’ conduct had been proportionate, and that the use of force and handcuffs had not been excessive in the circumstances. They distinguished the case at hand from Rehbock v. Slovenia (no. 29462/95, ECHR 2000 ‑ XII), and noted that in the present case the applicant had been arrested in the course of a random operation that might have given rise to unexpected developments. They emphasised that the applicant had been carrying a gun and had been drunk, thus his behaviour had been unpredictable. They submitted that handcuffing as such did not raise an issue under Article 3, citing the case of Raninen v. Finland (16 December 1997, Reports of Judgments and Decisions 1997 ‑ VIII). Their conclusion was that the police officers had had recourse to force during the applicant’s arrest only to the extent that it had been made necessary by his conduct. 97. In addition, the Government alleged that immediately after the police officers had become aware of the fact that the applicant had had health problems, he had been pulled up from the ground and the handcuffs had been removed. 98. The Government also submitted that the alleged injuries had not caused serious suffering to the applicant as he had been discharged from the specialist hospital for outpatient treatment the following day. The Government concluded that it had not been proved “beyond reasonable doubt” that the applicant had been ill-treated and that the police officers’ conduct had attained a sufficient level of severity to fall within the scope of Article 3 of the Convention. 99. The Government argued that there had been an effective investigation into the applicant’s allegations of ill-treatment on 10 September 2001. They reiterated that the effectiveness of the investigation did not depend on a positive outcome for the applicant. The Government noted that, on the one hand, during his questioning on 11 September 2001, the applicant had complained that the police officers had used physical force and that he had sustained bodily injuries as a result. On the other hand, the police officers had denied this during their own questioning and also during their confrontation with the applicant. In the Government’s submission, a forensic examination had been the only way to verify the applicant’s allegations. Lastly, in view of the conclusion of the forensic expert that the applicant had not sustained any bodily injuries, the criminal proceedings had been terminated. 2. The Court’s assessment 100. The Court reiterates that where a person is injured while in detention or otherwise under the control of the police, any such injury will give rise to a strong presumption that the person was subjected to ill ‑ treatment (see Bursuc v. Romania, no. 42066/98, § 80, 12 October 2004; Matko v. Slovenia, no. 43393/98, § 99, 2 November 2006; Mrozowski v. Poland, no. 9258/04, § 26, 12 May 2009). Although the use of force during arrest, even if resulting in injury, may fall outside the scope of Article 3 if the use of force had been indispensable and resulted from the conduct of the applicant (see Klaas v. Germany, 22 September 1993, § 30, Series A no. 269), the Court also points out that where an individual, when taken into police custody, is in good health, but is found to be injured at the time of release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused, failing which a clear issue arises under Article 3 of the Convention (see Selmouni v. France [GC], no. 25803/94, § 87, ECHR 1999 ‑ V). 101. The Court further notes that in assessing evidence in a claim of a violation of Article 3 of the Convention, it adopts the standard of proof “beyond reasonable doubt”. Such proof may, however, follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Farbtuhs v. Latvia, no. 4672/02, § 54, 2 December 2004; Bazjaks v. Latvia, no. 71572/01, § 74, 19 October 2010; and Krivošejs v. Latvia, no. 45517/04, § 69, 17 January 2012). 102. Furthermore, where an individual makes a credible assertion that he has suffered treatment infringing Article 3 at the hands of the police or other similar agents of the State, that provision, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in ... [the] Convention”, requires by implication that there should be an effective official investigation (see Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000 ‑ IV). 103. An obligation to investigate “is not an obligation of result, but of means”: not every investigation should necessarily come to a conclusion which coincides with the applicant’s account of events. However, it should in principle be capable of leading to the establishment of the facts of the case and, if the allegations prove to be true, to the identification and punishment of those responsible (see Mikheyev v. Russia, no. 77617/01, § 107, 26 January 2006). 104. The investigation into allegations of ill-treatment must be thorough. That means that the authorities must make a serious attempt to find out what happened and should not rely on hasty or ill-founded conclusions to close their investigation or as the basis for their decisions (see Assenov and Others v. Bulgaria, 28 October 1998, § 103 et seq., Reports 1998 ‑ VIII). They must take all reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness accounts, forensic evidence and so on. Any deficiency in the investigation which undermines its ability to establish the cause of injuries or the identity of the persons responsible will risk falling foul of the applicable standard (see Mikheyev, cited above, § 108). 105. For an investigation to be effective, it may generally be regarded as necessary for the persons responsible for and carrying out the investigation to be independent from those implicated in the events (see Barbu Anghelescu v. Romania, no. 46430/99, § 66, 5 October 2004). This means not only a lack of hierarchical or institutional connection but also practical independence (see, for example, Ergi v. Turkey, 28 July 1998, §§ 83-84, Reports 1998 ‑ IV, where the public prosecutor investigating the death of a girl during an alleged clash showed a lack of independence through his heavy reliance on the information provided by the gendarmes implicated in the incident). 106. The investigation must also be effective in the sense that it is capable of leading to a determination of whether the force used by the police was or was not justified in the circumstances (see Kaya v. Turkey, 19 February 1998, § 87, Reports 1998-I). 107. The Court observes that the applicant was arrested following a car chase which ensued after the applicant had refused to stop on the police officers’ instructions. It is common ground between the parties that the officers used some physical force to pull the applicant out of his car, to push him to the ground and to handcuff him. However, the parties disagree as concerns the nature of injuries sustained by the applicant and whether or not they were caused by the officers’ actions. 108. The Government submitted that the applicant’s spine had been twisted backwards, but emphasised that he had had a prior spinal injury. Force that had been used on the applicant was proportionate in view of his conduct. The applicant, however, argued that the force used on him had been disproportionate. In addition to a hyperextension injury on his back, the applicant also had a contusion to the lower back and broken fixing screws that held the metal implant supporting his spine. He had become paraplegic as a result. The Court notes that the medical examination results referred to by the applicant were strictly limited to establishing his state of health, which at least in part mentioned his previous condition, but not to the circumstances surrounding his arrest. The forensic expert in the present case, in contrast with Mrozowski case (cited above, § 13), did not provide an answer to the question whether the injuries sustained by the applicant could have been inflicted by the police officers in the manner as described by the applicant. 109. The Court finds it impossible to establish, on the basis of the evidence before it, whether or not the applicant’s injuries were caused as alleged. However, for the reasons set out below, the Court notes that it cannot accept the Government’s argument that the investigation by the prosecuting authorities were effective in the present case and observes that the difficulty in determining whether there was a plausible explanation for the applicant’s injuries or whether there was any substance to his allegations of ill-treatment rests with the failure of the authorities to investigate his complaints effectively (see Veznedaroğlu v. Turkey, no. 32357/96, § 31, 11 April 2000; Petru Roşca v. Moldova, no. 2638/05, § 42, 6 October 2009; Popa v. Moldova, no. 29772/05, § 39, 21 September 2010; and Hristovi v. Bulgaria, no. 42697/05, § 83, 11 October 2011). The Court will now examine this matter further. 110. At the outset, the Court observes that it is not disputed by the parties that the State was under a procedural obligation, arising from Article 3 of the Convention, to carry out an effective investigation into the circumstances in which the applicant was arrested. 111. The Court notes that the authorities carried out an inquiry into the applicant’s allegations. It is not convinced, however, that the inquiry was sufficiently thorough and effective to meet the requirements of Article 3 of the Convention. 112. The Court observes at the outset that the Olaine police started the investigation soon after the events had taken place, admittedly at this point in connection with the criminal proceedings against the applicant. The Court notes that the Olaine police, as the competent investigating authority at that point in the criminal proceedings, was in charge of two investigations based on mutually contradictory allegations – in relation to the firearm charge against the applicant and in relation to his allegations of ill-treatment upon arrest implicating the traffic police officers who had discovered the firearm. The Court has found in a number of cases against Latvia that minimum standards of an independent investigation have not been respected where the police was charged with investigating allegations relating to its own officers (see Jasinskis v. Latvia, no. 45744/08, § 75, 21 December 2010; Timofejevi v. Latvia, no. 45393/04, § 98, 11 December 2012, and Vovruško v. Latvia, no. 11065/02, § 50, 11 December 2012). Bearing in mind that the Olaine police sent the case material to the prosecutor for bringing the firearm charge against the applicant on the 8 th day after the events and that they took no additional investigative steps after the prosecutor sent back the case material in relation to the allegations of ill-treatment for additional review on 5 November 2001, the Court considers it sufficient to note that the investigation by the Olaine police in this regard can hardly be considered showing the necessary diligence for the following reasons. 113. The Court considers that not all reasonable steps to secure the available evidence were taken. It is true that both traffic police officers were questioned on the day of the events, and that the following day an attempt was made to question the applicant, who owing to his state of health could not give evidence alleging that he had been ill-treated. However, there were discrepancies between police officer E.Š.’s statement and his own report about the arrest as to where exactly a bullet was found, either together with a gun in the applicant’s pocket or inside the car. The Olaine police did not look into this. It appears that this conflicting statement was not admitted as evidence in the applicant’s trial concerning the firearm charge. Further discrepancies were present in the forensic reports as concerns the place where the bullet was found. These discrepancies were not examined further, which undermines the thoroughness and reliability of the pre-trial investigation. It appears that the investigation by the Olaine police had consisted of a questioning of the police officers and the applicant, and some forensic examinations which did not yield any results. No medical examination of the applicant was ordered at this point. 114. It remains to be examined whether the above-mentioned shortcomings could, to a certain extent, be counterbalanced by an effective supervision of the investigation (see the above-cited Vovruško case, § 51). The Court refers in this connection to other cases against Latvia, where it has found various shortcomings in the exercise of the prosecutorial supervision at the material time (see Timofejevi, §§ 101 and 103, and Vovruško, §§ 52-53, cited above). In the case at hand, the Court notes that the prosecutor was the same person who brought the formal firearm charge against the applicant and issued the final bill of indictment in that regard (see paragraphs 37 and 45 above). The Court further notes that on two occasions, the same prosecutor rejected the applicant’s request to terminate the criminal proceedings against him on the basis that his guilt had been duly established (see paragraph 46 above). The Court considers that the prosecutor relied to a considerable extent on the statements of the police officers who had been implicated in the events, and fully accepted their denial of having assaulted the applicant, as evidenced by the scarcely reasoned decision to refuse the institution of proceedings. This is sufficient to cast doubt on the effectiveness of the prosecutor’s supervision of the investigation in the applicant’s case, particularly as she did not carry out any assessment of the statements given by the police officers and the applicant, and did not provide reasons why she considered the police officers’ statements more credible. Nor were her conclusions based on witness statements, proper forensic examination reports or other evidence. 115. The Court considers that the prosecutor did not proceed with securing further evidence with requisite expedition. It appears that the forensic examination concerning the applicant’s injuries was ordered one month after the applicant’s arrest, and in actual fact was not carried out until a month later. The Court considers the total delay of two months for ordering and carrying out a forensic examination of injuries sustained by the applicant unacceptable. Nor did the prosecutor ensure that the forensic expert examined the applicant in person (see, for an example of similar shortcomings in an investigation the above-cited Vovruško case, § 49), thereby making it impossible to discover any physical marks or injuries on the applicant’s body, if there had been any and that they could have remained visible two months after the events. The prosecutor also endorsed the forensic expert’s disregard of the first diagnosis made by doctors at the specialist hospital concerning the hyperextension injury because “they were not confirmed by visible bodily injuries”. The Court does not agree that only visible injuries on an individual’s body could serve as a proof of ill ‑ treatment. It further notes that the conclusions made by the specialist hospital (about the broken screws and dislodging of the metal implant) were based on an X-ray of the applicant, which the prosecutor appears to have omitted to take into consideration when examining the case. Moreover, it appears that the prosecutor failed to take any steps to obtain any eyewitness accounts, which could have shed some light on the disputed circumstances of the arrest, given that it had taken place next to an apartment building in a residential area. 116. Lastly, the Court considers that the prosecutor’s supervision of the investigation was deficient in that she did not ensure that any additional investigative activities were taken in response of her remittal of the case material back to the Olaine police on 5 November 2001. 117. In response to the Government’s argument that higher-ranking prosecutor’s supervision was required, the Court observes that it appears that the applicant was not notified of the procedure or time-limit for lodging a complaint against the decision of 27 November 2001. The prosecutor had an obligation under domestic law to explain these rights to the applicant, which she failed to do, thereby causing confusion as to the applicable procedures for complaint. The Government further argued that the applicant’s counsel could have lodged a complaint to a higher-ranking prosecutor on his behalf, if the applicant himself was not capable of doing so on account of his state of health. That counsel, however, appears to have been appointed only in the connection with the criminal proceedings against the applicant, and it remains unclear whether she had the authority to lodge any complaints relating to the criminal proceedings against the police officers. There is no information that she was actually informed about the refusal to institute the criminal proceedings against the police officers. 118. In any event, the Court considers that the applicant brought his allegations of ill-treatment to the attention of the domestic authorities during his trial. The Court reiterates that at the material time pursuant to section 109 of the former Code of Criminal Procedure a court had to accept any material concerning criminal offences and to institute or refuse to institute criminal proceedings, or forward that material to the competent authority (see paragraph 84 above). The Court has already noted that domestic courts had such competence and that that they could forward the complaint of ill-treatment by the police raised during the trial to the prosecutor’s office (see Timofejevi, cited above, § 104). Likewise, the Court has noted that where representations of ill-treatment were raised during the trial in the presence of a representative of the prosecutor’s office, the latter could not remain passive and had to ensure that an investigation was carried out (see Sorokins and Sorokina v. Latvia, no. 45476/04, §§ 98-99, 28 May 2013). The applicant in the present case pursued his complaint before the national courts, but they did not give any credence to his allegations. No official investigation was triggered. The Court therefore considers that the final decision in relation to the applicant’s complaint of ill-treatment was adopted on 2 December 2002, when the Senate of the Supreme Court dismissed the applicant’s appeal on points of law in the criminal proceedings against him, whereas his complaint to the Court was lodged on 31 January 2003. 119. The above-mentioned considerations are sufficient for the Court to conclude that the domestic authorities did not ensure an effective investigation into the applicant’s allegations of police ill-treatment on 10 September 2001 and the Court dismisses the Government’s preliminary objections. Accordingly, there has been a violation of Article 3 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF INADEQUATE MEDICAL ASSISTANCE AND THE UNSUITABILITY OF PRISON FACILITIES 120. The applicant complained under Article 3 of the Convention that, because of the lack of adequate medical assistance in the Prison Hospital and in Pārlielupe Prison, his state of health had deteriorated considerably, he had become paraplegic and had been certified as being Category 1 disabled, only being able to move in a wheelchair. 121. He also complained that the facilities in Pārlielupe and Valmiera Prisons had been unsuitable for him as he was wheelchair-bound. He submitted, in support of his allegations, that there had been no social care or assistance in prison to help him with everyday life. A. Admissibility 1. Medical assistance 122. On the one hand, the Government raised a preliminary objection of non-exhaustion of domestic remedies in relation to the lack of medical assistance in Pārlielupe Prison. They argued that the applicant could have complained to the prison’s medical unit, to the Prisons Administration, to a prosecutor, or to the Inspectorate for Quality Control of Medical Care and Working Capability (“the MADEKKI”), all of which, according to the Government, were effective and accessible domestic remedies and offered reasonable prospects of success. However, they did not provide more information in this connection save for references to the legal provisions describing their respective competence. 123. On the other hand, they did not raise a similar objection as concerns the applicant’s stay in the Prison Hospital. The Government contended that the applicant’s complaint in this regard was manifestly ill-founded, as he had failed to provide details of the alleged shortcomings. 124. The applicant disagreed and maintained that he had not received adequate medical treatment either in the Prison Hospital or in Pārlielupe Prison. As regards the Prison Hospital, he pointed out that his spine had not been operated on and that the broken screws and metal implant had not been removed and replaced when necessary. In relation to Pārlielupe Prison, he alleged that he had contracted new illnesses, in that his blood pressure had increased and he had suffered a stroke. In addition, the applicant pointed out that he had been suffering from severe pain even before becoming paraplegic. The mere fact that during detention his health had deteriorated so severely that he had obtained the most severe classification of disability (Category 1) in itself indicated that the medical care had been inadequate. 125. The Court reiterates that it has spelled out the applicable principles in relation to the adequacy of medical assistance in prisons in connection with complaints under Article 3 of the Convention on numerous occasions in cases against Latvia (see Farbtuhs, cited above, §§ 49-51; Krivošejs, cited above, §§ 69-71; Van Deilena v. Latvia (dec.), no. 50950/06, § 62; 15 May 2012; Epners-Gefners v. Latvia, no. 37862/02, § 43, 29 May 2012; Leitendorfs v. Latvia (dec.), no. 35161/03, § 49, 3 July 2012; and Buks v. Latvia (dec.), no. 18605/03, §§ 39-40; 4 September 2012). 126. The Court will first turn to the adequacy of the applicant’s medical assistance in the Prison Hospital. It notes in this regard that the applicant’s complaint relates to the period of time that preceded his becoming paraplegic. This period ended either on 17 December 2002, when a note was made for the first time in his prison medical records that he could not walk on his own, or on 23 January 2003 when he was certified as being Category 1 disabled. 127. The Court observes that the present applicant has not provided any detailed information about the operations he allegedly needed, let alone any medical recommendation or independent expert opinion about their necessity. No suggestion was made by the specialist hospital, where the applicant was examined and treated after the events of 10 September 2001, that any surgery was necessary. Its only recommendations were for the applicant to continue taking medication and to wear a fixating belt. In the absence of an expert medical report or other evidence, the Court is unable to consider that the applicant’s condition necessitated any surgery, contrary to what has been claimed by him. If it is to be understood that he referred to the same operations he requested later in a different prison (see paragraphs 70-73 above), the Court observes that such surgery was unavailable in Latvia at the material time (see, mutatis mutandis, the above-cited Epners ‑ Gefners, § 45), a fact which the applicant did not contest before the Court. Taking into account that the applicant did not highlight any other shortcomings in his medical care in the Prison Hospital, the Court concludes that the applicant has not substantiated his allegations in this regard. 128. Turning to the medical assistance in Pārlielupe Prison, the Court does not consider it necessary to reach any conclusion as to whether or not the applicant exhausted domestic remedies or whether or not such domestic remedies were effective, since this part of the applicant’s complaint is inadmissible in any event for being manifestly ill-founded. 129. The Court notes that there is nothing in the case file to suggest that the applicant had any health-related problems in Pārlielupe Prison, save for his allegation of increased blood pressure, for which he provided no proof. The applicant has not submitted, either in his initial application or in his comments after the communication of the present application to the Government, any medical records or other evidence showing that his high blood pressure necessitated any action or treatment on the part of the medical staff of Pārlielupe Prison. He mentioned that he had suffered severe pain, but did not allege that he had been refused painkillers or that he needed to take any other medication. Furthermore, it does not transpire from the information at the Court’s disposal that the applicant suffered from any other illnesses, problems or ailments (apart from his complaint about the adequacy of prison facilities for disabled prisoners, which the Court will examine below), or that he needed constant treatment or care. The Court therefore concludes that the applicant has not laid the basis of an arguable claim that he did not receive adequate medical assistance in Pārlielupe Prison. 130. It follows that the applicant’s complaints relating to the adequacy of medical assistance in the Prison Hospital and in Pārlielupe Prison must be dismissed in accordance with Article 35 §§ 3 (a) and 4 of the Convention. 2. Prison facilities 131. On the one hand, the Government argued that the applicant had not exhausted the available domestic remedies in relation to his complaint regarding the unsuitability of the facilities in Pārlielupe Prison. They insisted that he could have complained to the administration of Pārlielupe Prison, to the Prisons Administration, or to a prosecutor. As in relation to the previous complaint, the Government did not provide any further explanation but merely referred to the applicable domestic law. 132. On the other hand, the Government did not raise a similar objection as concerns the unsuitability of the facilities in Valmiera Prison. The Government contended that the applicant’s complaint in this regard was manifestly ill-founded, as he had been placed in a special unit for inmates with health problems and had been granted certain privileges. 133. The applicant disagreed and maintained his complaint about the facilities in Pārlielupe Prison and Valmiera Prison. As regards Pārlielupe Prison, he alleged he had needed constant care, as he had not even been able to go to the toilet on his own. He alleged that he had not had access to fresh air. As regards Valmiera Prison he submitted that he had been unable to move around in his wheelchair, that there had been no social care and that he had had to rely on the voluntary assistance of his cellmate (see paragraph 138 below). 134. The Court will first turn to the facilities in Pārlielupe Prison. As in relation to the previous complaint, the Court does not consider it necessary to reach any conclusion as to whether or not the applicant exhausted domestic remedies and whether or not such domestic remedies were effective, since this part of the applicant’s complaint is inadmissible in any event for being manifestly ill-founded. 135. The Court observes that the only description it has about the prison facilities in Pārlielupe Prison is the description provided by the applicant, which is surprisingly scarce (when contrasted with his detailed description in relation to Valmiera Prison). The applicant submitted, but provided no proof, that in Pārlielupe Prison he had been unable to access the toilets and had not had access to fresh air. He failed to provide more information as to the location and accessibility of the toilets and exercise yard from his prison cell or from other areas in the prison. The only piece of evidence in support of his allegations was a handwritten request to the administration of Pārlielupe Prison to provide information about his state of health, which did not indicate that he had any problems with mobility or with using or accessing any prison facilities (contrast with the evidence submitted in support of his complaint in relation to Valmiera Prison, see paragraphs 70 ‑ 75). The applicant himself, in his observations in reply to those of the Government, focused on the facilities in Valmiera Prison and did not specifically refer to those in Pārlielupe Prison. In such circumstances, the Court considers that the applicant’s complaint does not contain sufficient detail for the Court to consider that he has raised a prima facie arguable complaint under Article 3 of the Convention about the adequacy of prison facilities in Pārlielupe Prison. The Court concludes that his complaint in that regard is manifestly ill-founded and must therefore be dismissed in accordance with Article 35 §§ 3 (a) and 4 of the Convention. 136. Turning to the applicant’s complaint regarding the unsuitability of prison facilities in Valmiera Prison, the Court notes that his description is sufficiently detailed, and provides the essence of his grievances in relation to that facility. Furthermore, he submitted various reports by the National Human Rights Office and other authorities (see paragraphs 70-75 above) in support of this complaint, in contrast to his complaint about Pārlielupe Prison. In such circumstances, the Court considers that the applicant has set out the basis of a prima facie arguable claim under Article 3 of the Convention about the adequacy of the prison facilities in Valmiera Prison. 137. In the light of the above, the Court considers that the applicant’s complaint about the adequacy of the prison facilities in Valmiera Prison is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. Parties’ submissions (a) The applicant 138. It transpired from the documents submitted by the applicant that certain facilities in Valmiera Prison were not suitable for disabled people in a wheelchair such as him. Several areas were inaccessible in a wheelchair. For example, he could not leave the living area in his unit independently, nor could he access the toilets, canteen, sauna, library, shop, gym, meeting room or telephone room. In the meeting room, where he had conjugal visits with his wife, he could not access the sanitation facilities (toilets and shower) because the doors were too narrow. As his wife could not carry him into these facilities, he had to use a plastic bottle and plastic bag instead of the toilet. He could not use the shower at all and could only clean himself with a damp towel. This had been extremely humiliating. 139. The applicant admitted that the administration of Valmiera Prison had made some efforts. He admitted to have been exempted from daily check-ups, which had taken place three times a day in the outdoor yard. He mentioned that a wooden ramp had been installed to provide access to that yard; however, these efforts were connected with his physical inability to access certain areas in the prison and was not evidence that the prison authorities had wanted to alleviate the hardship of his detention in that facility. 140. The applicant further argued that there was no social assistance for disabled prisoners. The applicant had to rely on the voluntary assistance of his cellmate, which could not be considered adequate. He further submitted that being placed in a position of dependence upon the goodwill of other detainees, to whom he had to “pay” with cigarettes and tea, had been extremely humiliating for him. The applicant mentioned that, at times, he had been left outside in the walking area for long periods of time without a rain shelter, as he could not get into the building by himself. The applicant relied on the case of Farbtuhs (cited above, § 60) to argue that that leaving the assistance of disabled prisoners to other detainees was inadequate, since it in effect shifted the responsibility for such people to those other detainees, who lacked the proper qualifications, even if their help was only for a limited period of time. In his view, it was a serious issue under Article 3 of the Convention that a disabled person such as himself had to endure concerns and worries about the inaccessibility of qualified medical assistance in an emergency. He argued that he had been dependent on the goodwill of other detainees to assist him, which had put him in a situation of uncertainty, and had caused him physical and mental suffering and distress. The applicant disagreed with the Government’s distinction between the facts of the present case and those in Farbtuhs. He considered that the Government’s analysis of the Farbtuhs case in relation to the appropriateness of the detention itself was irrelevant. The applicant submitted that the focus of his dissatisfaction was not that he had been held in continued detention despite his poor health, which had been the main problem in Farbtuhs, but rather that the conditions in Valmiera Prison had been unsuitable for him as a disabled person. 141. Lastly, the applicant strongly disagreed with the Government’s suggestion that he had aggravated his medical condition or had even faked his disability while in detention. He considered this statement insulting. The applicant reiterated that he had spent a long time in prison under the supervision of the prison authorities and considered it impossible to imagine that an individual could fake paralysis in both legs for over four years. There had been no proof in that regard. The mere fact that his medical condition had improved after release only proved that the medical treatment and prison conditions had been detrimental to his health as his state of health had improved upon receipt of the appropriate medical care. (b) The Government 142. The Government noted that during the applicant’s detention in Valmiera Prison he was placed in a special unit for inmates with health problems. In this unit the applicant had shared a separate cell with a convicted prisoner who had undertaken to assist him in case of necessity. The Government further pointed out that the applicant had received certain “privileges” in Valmiera Prison that had not been available to ordinary inmates (see paragraph 68 above). 143. The Government noted that all the necessary medication for treating the applicant in acute circumstances had been available in the prison’s medical unit. They reiterated that the applicant had been taken for a specialist consultation to public hospitals in Rīga and Valmiera on three occasions, and had also been transferred to the Prison Hospital on three occasions to receive unspecified treatment. 144. The Government further submitted that between 15 and 17 March 2005 the Prisons Administration had carried out an audit at Valmiera Prison of the special unit for inmates with health problems, concluding that the conditions of detention were satisfactory and that no complaints from inmates had been received. However, the Government did not submit a copy of that report. 145. The Government made a distinction between the present application and the case of Farbtuhs. In the latter case the relevant domestic authority had admitted that, considering the extremely poor state of the applicant’s health, he could remain deprived of his liberty only if provided with specialist care and treatment. After that conclusion, the Prisons Administration had stated that these conditions could not be provided in a place of deprivation of liberty. Furthermore, a panel of doctors set up by the Prisons Administration had advised the State authorities to release the applicant from prison. Likewise, the present case should be distinguished from the case of Mouisel v. France (no. 67263/01, ECHR 2002-IX), in which the applicant’s doctors and various associations had applied for him to be pardoned, as according to an expert, “he had to be looked after in a specialist unit”. The judge responsible for the execution of sentences had released that applicant on parole, concluding that “[his] condition has become incompatible with his continued detention, on account of the medical care he requires during regular visits to hospital”. 146. The Government noted that during the present applicant’s detention, the relevant State authorities had never been requested by the applicant himself or by other State authorities to evaluate whether he should remain in continued detention or be released on account of his medical condition or the allegedly inadequate conditions of imprisonment. Nor had such an evaluation obviously been necessitated by the applicant’s medical condition or conditions of detention, since he was provided with the necessary medical treatment and adequate conditions of detention. Nevertheless, on 21 April 2006 the Valmiera District Court had conditionally released the applicant from the prison ten months and seventeen days early. The above decision was based, inter alia, on the fact that the applicant had a Category 1 disability. 147. The Government strongly insisted that the applicant had received adequate assistance for his medical condition during his imprisonment in Valmiera Prison, and that there were no symptoms indicating that specific treatment was necessary. Likewise, the Government contended that the state of the applicant’s health evidently allowed the continuation of his imprisonment. The Government also reiterated that the applicant had been suffering from very serious spinal problems since 2000, when he had undergone surgery and been granted Category 2 disability status. Furthermore, the very fact that in deciding about the applicant’s sentence the national courts took into the account the applicant’s medical condition and applied the lowest possible sentence could not be disregarded. 148. As concerns the alleged lack of social assistance, the Government noted that the Convention did not guarantee such a right. 149. Finally, the Government submitted that the applicant’s medical records had contained information received from the State Probation Service in Jelgava suggesting that after his release the applicant had been seen walking. According to the Government, the relevant authority had as a result re-examined its previously adopted decision to grant the applicant Category 1 disability status for two years by reducing the term of validity of his certificate to one year. The Government concluded that the applicant had aggravated his medical condition on purpose or had even faked his disability in order to ensure that he received advantageous conditions of detention and certain privileges. 2. The Court’s assessment (a) General principles 150. The Court reiterates that Article 3 of the Convention cannot be interpreted as laying down a general obligation to release a detainee on health grounds or to transfer him to a public hospital, even if he is suffering from an illness that is particularly difficult to treat. However, this provision does require the State to ensure that prisoners are detained in conditions which are compatible with respect for human dignity, that the manner and method of the execution of the measure do not subject them to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, their health and well-being are adequately secured (see Kudła v. Poland [GC], no. 30210/96, §§ 92-94, ECHR 2000 ‑ XI; Melnītis v. Latvia, no. 30779/05, § 69, 28 February 2012; and Savičs v. Latvia, no. 17892/03, § 130, 27 November 2012). 151. Moreover, the Court has considered that where the authorities decide to place and keep a disabled person in continued detention, they should demonstrate special care in guaranteeing such conditions as correspond to the special needs resulting from his disability (see Farbtuhs, cited above, § 56; Jasinskis, cited above § 59; Z.H. v. Hungary, no. 28973/11, § 29, 8 November 2012; and the international law material in paragraphs 78-82 above). 152. In the above-cited case of Farbtuhs, the Court noted that the prison authorities had permitted family members to stay with the applicant for twenty-four hours at a time and that this took place on a regular basis. In addition to the applicant, who had a physical disability, being cared for by his family, he was assisted during working hours by the medical staff and outside working hours was helped by other inmates on a voluntary basis. The Court expressed its concerns in the following terms (§ 60): “The Court doubts the appropriateness of such a solution, leaving as it did the bulk of responsibility for a man with such a severe disability in the hands of unqualified prisoners, even if only for a limited period. It is true that the applicant did not report having suffered any incident or particular difficulty as a result of the impugned situation; he merely stated that the prisoners in question sometimes ‘refused to cooperate’, without mentioning any specific case in which they had refused. However, the anxiety and unease which such a severely disabled person could be expected to feel, knowing that he would receive no professional assistance in the event of an emergency, in themselves raise a serious issue from the standpoint of Article 3 of the Convention.” 153. The Court has also held that detaining a disabled person in a prison where he could not move around and, in particular, could not leave his cell independently, amounted to degrading treatment (see Vincent v. France, no. 6253/03, § 103, 24 October 2006). Similarly, the Court has found that leaving a person with a serious physical disability to rely on his cellmates for assistance with using the toilet, bathing and getting dressed or undressed, contributed to its finding that the conditions of detention had amounted to degrading treatment (see Engel v. Hungary, no. 46857/06, §§ 27 and 30, 20 May 2010). (b) Application of these principles to the present case 154. The Court observes that the crux of the applicant’s complaint relates to the material conditions of his detention in Valmiera Prison in view of his physical disability and the lack of any organised assistance in that regard. The Court notes that the applicant himself specifically pointed out that his complaint did not relate to his continued detention in view of his state of health (compare and contrast with the above-cited Farbtuhs case). 155. The Court notes that the applicant’s medical condition is not disputed between the parties. While serving his sentence in Valmiera Prison, the applicant was paraplegic and was confined to a wheelchair. The Court considers that the applicant’s state of health following his release is irrelevant for the purposes of the present complaint under Article 3 of the Convention and will therefore not examine the parties’ submissions in this regard. Nor shall any importance be attached to the Government’s suggestion that the applicant might have faked his physical disability while in detention, since the diagnosis of his medical condition lies within the competence of the domestic authorities. The Court considers that there can be no question over the adequacy of medical assistance in the absence of a timely and accurate diagnosis. It is important to note that when the applicant was placed in detention he could walk; his paraplegia was first recorded in prison and his Category 1 disability was subsequently confirmed by the relevant domestic authority. Had there been any imprecision on their part in establishing an accurate diagnosis of the applicant’s medical condition, or indeed had the domestic authorities subsequently failed to detect any changes in the applicant’s condition, the State would have to bear responsibility for such an omission as it is its obligation to ensure that persons deprived of their liberty receive the requisite medical assistance. 156. The Court notes that neither parties’ submissions suggest that the applicant while in Valmiera Prison suffered from any conditions, problems or ailments other than his physical disability, as a result of which he was confined to a wheelchair (compare and contrast with the above-cited cases of Mouisel and Farbtuhs, and also with Price v. the United Kingdom, no. 33394/96, § 25, ECHR 2001 ‑ VII; Kupczak v. Poland, no. 2627/09, § 60, 25 January 2011; Turzynski v. Poland (dec.), no. 61254/09, §§ 2 and 37, 17 April 2012; D.G. v. Poland, no. 45705/07, § 143, 12 February 2013; Todorov v. Bulgaria (dec.), no. 8321/11, § 64, 12 February 2013). 157. First of all, as concerns the material conditions of the applicant’s detention in Valmiera Prison, the Court notes that it is common ground between the parties that he was detained for nearly two-and-a-half years in a regular detention facility, which was not adapted for a wheelchair-bound person such as the applicant. The Government insisted that the applicant had been placed in a special unit for inmates with health problems, yet these facilities do not appear to have had less architectural or technical barriers than the facilities in the ordinary wings of that prison. The Court notes that a ramp had been installed to facilitate the applicant’s access to the outdoor yard. Yet other areas, such as the canteen, toilets, sauna, library, shop, gym, meeting room and telephone room, remained inaccessible for the applicant in a wheelchair, a fact which the Government did not deny. Special arrangements had been put in place to alleviate the hardships of the access ‑ related problems, but only in relation to the canteen and not the other facilities. While it appears that the applicant was not locked up in his cell during daytime and could move around in the living area of his unit, his ability to use any facilities therein was restricted owing to his paraplegia. 158. In this regard, the Court considers that the accessibility of the sanitation facilities raises a particular concern under Article 3 of the Convention (see, in a more complex context, D.G. v. Poland, cited above, §§ 147 and 150). In the present case, the applicant submitted, and the Government did not deny, that his physical disability had prevented him from being able to access the toilets and sauna. While, according to the Government, the toilets had been adapted to the applicant’s special needs, the Court notes that it can hardly be considered as alleviating his hardship, given that these facilities themselves remained inaccessible without the help of other inmates. Moreover, it appears that the only possibility for the applicant to wash himself had been during the weekly sauna visits, facilities which were also inaccessible to the applicant without the help of others. Nor does it transpire from the case materials that the sauna facilities had been adapted for the applicant’s special needs. The Court considers such a state of affairs unacceptable. It has already found that restricting prisoners’ access to showers once a week did not allow them to wash themselves properly and that this shortcoming had contributed to the cumulative effect of conditions of detention in the Prison Hospital in violation of Article 3 of the Convention (see Čuprakovs v. Latvia, no. 8543/04, §§ 44-45, 18 December 2012). The international standard in this respect currently stands at least at twice a week (see paragraph 83 above), to which the CPT has also invited the Contracting States to adhere [1]. In the present case, the applicant did not have access to a shower at all. The Court considers that weekly sauna visits did not provide him with an adequate opportunity to maintain his personal hygiene, given their inaccessibility and limited availability (contrast with the above-cited Todorov case, where the applicant had daily access to common showers and later had an en suite toilet and shower). 159. The Court further notes that the applicant’s special needs were further disregarded as no measures were adopted to alleviate the hardship caused by the inaccessibility of the sanitation facilities while meeting his wife for conjugal visits, which under Latvian legislation could last up to forty-eight hours (see Aleksejeva v. Latvia, no. 21780/07, § 28, 3 July 2012). Acknowledging that the Convention does not require the Contracting States to make provisions for such visits (see Epners-Gefners, cited above, § 62), the Court nevertheless notes that they have to ensure that prisoners are detained in conditions which are compatible with respect for human dignity. In exercising their wide margin of appreciation in deciding whether or not to allow conjugal visits, the States have to have due regard to the needs and resources of the community and of individuals ( ibid. ). The Court finds that placing the applicant, who is confined to a wheelchair, in facilities where he cannot properly wash and use the toilet, even if only for a limited period of time, could be hardly considered compatible with respect for his human dignity. 160. Turning to the second point in its analysis, the Court notes that the applicant, who has a physical disability and is wheelchair-bound, was in need of daily assistance with his mobility around the prison. While the Court recognises that the administration of Valmiera Prison had made certain efforts to lessen his inability to move about in the prison, the fact remains that he had to rely on the help of his cellmate to enter and leave the living area of his unit; he also had to rely on the help of other inmates to access various facilities, such as the toilets, sauna, library, shop, gym, meeting room and telephone room, as they were inaccessible to him in a wheelchair. Although the medical staff visited the applicant in his cell for ordinary medical check-ups, they did not provide any assistance with his daily routine (contrast with the above-cited cases of Turzynski, § 40, and Todorov, § 65). 161. The Court finds that the applicant had to rely on his fellow inmates to assist him with his daily routine and mobility around the prison, even though they had not been trained nor had the necessary qualifications to provide such assistance. The Government argued that the applicant’s cellmate had voluntarily agreed to assist him in case of necessity. The Court is not persuaded by such an argument and does not consider that the applicant’s special needs were thereby attended to and that the State has complied with its obligations under Article 3 of the Convention in that respect. The Court has already stressed its disapproval of a situation in which the staff of a prison feel relieved of their duty to provide security and care to more vulnerable detainees by making their cellmates responsible for providing them with daily assistance or, if necessary, with first aid (see, mutatis mutandis, Kaprykowski v. Poland, no. 23052/05, § 74, 3 February 2009). It is clear that in the present case the help offered by the applicant’s cellmate did not form part of any organised assistance by the State to ensure that the applicant was detained in conditions compatible with respect for his human dignity. It cannot therefore be considered suitable or sufficient in view of the applicant’s physical disability (see the above-cited cases of Farbtuhs, § 60, and D.G. v. Poland, § 147). While it is true that the Convention does not guarantee as such a right to social assistance, the Court considers that the State’s obligation to ensure adequate conditions of detention includes provision for the special needs of prisoners with a physical disability such as the present applicant (see paragraph 151), and the State cannot merely absolve itself from that obligation by shifting the responsibility to the applicant’s cellmate. 162. In the light of the foregoing considerations and their cumulative effects, the Court holds that the conditions of the applicant’s detention in view of his physical disability and, in particular, his inability to have access to various prison facilities independently, including the sanitation facilities, and in such a situation the lack of any organised assistance with his mobility around the prison or his daily routine, reached the threshold of severity required to constitute degrading treatment contrary to Article 3 of the Convention. There has, accordingly, been a violation of that provision. III. OTHER ALLEGED VIOLATIONS 163. The applicant also complained that the public prosecutors and domestic courts had subjected him to inhuman and degrading treatment. He also he alleged a violation of Article 5 § 5 of the Convention with no further explanation. 164. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. 165. It follows that this part of the application is manifestly ill-founded and must be dismissed in accordance with Article 35 §§ 3 and 4 of the Convention. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 166. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 167. The applicant submitted that the finding of a violation by itself would not be sufficient compensation for the severe deterioration to his health and physical and moral suffering he had been subjected to during his arrest and continued detention. He therefore requested the Court to award him damages for the suffering and distress caused. He was however unable to quantify in financial terms the degree of emotional distress, physical suffering and deterioration of health he had endured. The applicant asked the Court to take into consideration the severity of his grievances when determining the amount of the compensation to award. He left it to the Court to establish the precise amount, suggesting an amount not less than 100,000 Latvian lati (approximately 142,287 euros (EUR)). 168. The Government contested these claims. 169. Having regard to the nature of the violations found in the present case and deciding on an equitable basis, the Court awards the applicant EUR 6,000 in respect of non-pecuniary damage. B. Costs and expenses 170. The applicant did not lodge any claim under this head. C. Default interest 171. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 3 (prohibition of inhuman and degrading treatment) of the Convention. The applicant had been detained for nearly two-and-a-half years in a regular detention facility which was not adapted for persons in a wheelchair. Moreover, he had had to rely on his fellow inmates to assist him with his daily routine and mobility around the prison, even though they had not been trained and did not have the necessary qualifications. Although the medical staff had visited the applicant in his cell for ordinary medical check-ups, they had not provided any assistance with his daily routine. The State’s obligation to ensure adequate conditions of detention included making provision for the special needs of prisoners with physical disabilities and the State could not absolve itself from that obligation by shifting the responsibility to cellmates. The conditions of the applicant’s detention in view of his physical disability and, in particular, his inability to have access to various prison facilities, including the sanitation facilities, independently and the lack of any organised assistance with his mobility around the prison or his daily routine, had thus reached the threshold of severity required to constitute degrading treatment. |
576 | Expulsion or extradition cases | II. RELEVANT DOMESTIC LAW 30. The provisions applicable in the present case, concerning the right of foreigners to enter and to remain in Switzerland, are laid down in the Asylum Act of 26 June 1998 ( Asylgesetz, 142.31 – hereafter referred to as “the Asylum Act”) and in the Aliens Act of 16 December 2005 ( Bundesgesetz über die Ausländerinnen und Ausländer, 142.20 - hereafter referred to as “the Aliens Act”). 31. Chapter 1, Section 2, of the Asylum Act stipulates that an alien who is considered to be a refugee is granted asylum and is entitled to remain in Switzerland. Chapter 1, Section 3, of the same Act states that the term “refugee” means aliens who are exposed to serious disadvantages or who have a reasonable fear of being exposed to such disadvantages in future in their home country or in their last country of residence on grounds of race, religion, nationality, membership of a particular social group or because of their political views. According to the same section, the term “serious disadvantages” is understood to mean a danger to life, limb or liberty, or measures that generate intolerable psychological pressure. 32. Under Chapter 2, Section 7 of the Asylum Act, a refugee has to prove his status or at least has to provide credible evidence that he is a refugee within the meaning of Chapter 1, Section 3. Sufficient credible evidence is provided if the competent authorities are persuaded that it is more likely than not that a person is a refugee within the meaning of Section 3. Insufficient or inconsistent reasoning with regard to essential issues, inconsistency in respect of objective facts, or submissions which are substantially based on falsified pieces of evidence militate against the credibility of an asylum seeker ’ s submissions. 33. As regards the enforcement of an expulsion order, Chapter 1, Section 5 of the Asylum Act provides that no one may be forced by any means to leave Switzerland and to return to a country in which his life, limb or liberty is threatened for a reason stipulated by Section 3 of the same Chapter (see above) – or a country which he risks being forced to leave for a country of that type – unless there are significant grounds for believing that a person is a threat to the security of Switzerland or a danger to the public because he has been convicted of a particularly serious crime. Chapter 2, Section 44 of the Asylum Act and Section 83 of the Aliens Act add that, in the event that the enforcement of the expulsion order is not permitted by law and in cases where the enforcement is unreasonable or impossible, an applicant is allowed to stay in Switzerland provisionally ( vorläufige Aufnahme ). 34. Asylum decisions are taken by the Federal Migration Board (Chapter 2, Section 6a). If the Migration Board refuses to grant asylum, it issues an expulsion order and sets the date by which the country must be left (Chapter 2, Sections 44 and 45). The asylum seeker can appeal to the Federal Administrative Court against the Migration Board ’ s decision to refuse asylum and against the expulsion order (Chapter 8, Section 105 of the Asylum Act, Section 5 of the Federal Administrative Proceedings Act of 20 December 1968 ( Bundesgesetz über das Verwaltungsverfahren, 172.012) and Sections 82 and 83 of the Federal Court ’ s Act of 17 June 2005 ( Bundesgestz über das Bundesgericht, 173.110 ) ). The Federal Administrative Court decides as a first and final instance in such cases. III. RELEVANT COUNTRY INFORMATION 1. The UN Human Rights Council, Report of the Secretary-General on the situation of human rights in the Islamic Republic of Iran, 11 March 2014, A/HRC/25/75 35. The Secretary-General ’ s above-cited report states: “I. 5. The United Nations human rights mechanisms continue to raise concerns about amputations, flogging, and increased application of the death penalty, arbitrary detention and unfair trials. Freedom of expression remained curtailed, with a large number of journalists still in prison and social media being blocked. Human rights defenders and women ’ s rights activists continue to face arrest and persecution. [ ... ]. II. A. b. 10. [ ... ] The recurrence of cruel, inhuman or degrading punishment, such as amputation of limbs and flogging remains a cause for concern. The judiciary has frequently applied punishments which are prohibited by the ICCPR, to which Iran is a State party. The revised Islamic Penal Code provides for limb amputations for offences, including Moharebeh and theft and flogging for drinking alcohol, theft and certain sexual offences. On 7 January 2013, the Head of the Supreme Court of Iran defended punishments such as amputation, arguing that the proper implementation of Islamic law could prevent crimes. [ ... ].” 2. The U.S. Department of State ’ s “Country Reports on Human Rights Practices 2013” for Iran 36. This above- cited report states: “ Executive summary: [ ... ] The most egregious human rights problems were the government ’ s manipulation of the electoral process, which severely limited citizens ’ right to change their government peacefully through free and fair elections; restrictions on civil liberties, including the freedoms of assembly, speech, and press; and disregard for the physical integrity of persons whom it arbitrarily and unlawfully detained, tortured, or killed. Other reported human rights problems included: disappearances; cruel, inhuman, or degrading treatment or punishment, including judicially sanctioned amputation and flogging; politically motivated violence and repression, such as beatings and rape; harsh and life-threatening conditions in detention and prison facilities, with instances of deaths in custody; arbitrary arrest and lengthy pretrial detention, sometimes incommunicado; continued impunity of security forces; denial of fair public trials, sometimes resulting in executions without due process; the lack of an independent judiciary; political prisoners and detainees; [ ... ]. Section 1. c. Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment: The constitution prohibits all forms of torture “for the purpose of extracting confession or acquiring information,” but there were several credible reports that security forces and prison personnel tortured and abused detainees and prisoners. [ ... ] Common methods of torture and abuse in prisons included prolonged solitary confinement, rape, sexual humiliation, threats of execution, sleep deprivation, and severe and repeated beatings. There were reports of severe overcrowding in many prisons and repeated denials of medical care for prisoners [ ... ]. The government defended its use of flogging and amputation as “punishment,” not torture. Judicially sanctioned corporal punishment included lashings and, for offenses involving multiple thefts, amputations. On October 23, the UN special rapporteur noted reports about limb amputations for the crime of theft and reports about the flogging of 123 persons between July 2012 and June 30, 2013, for such crimes as “sedition,” “acts incompatible with chastity,” drinking alcohol, “illicit” relationships, and nonpenetrative same-sex sexual activity [ ... ]. Prison and Detention Center Conditions: Prison conditions were reportedly often harsh and life threatening. There were reports that some prisoners committed suicide as a result of the harsh conditions, solitary confinement, and torture to which they were subjected. Prison authorities often refused medical treatment for injuries prisoners reportedly suffered at the hands of their abusers and from the poor sanitary conditions of prison life. [ ... ]. Section 1. d. Arbitrary Arrest or Detention: [ ... ] Authorities commonly used arbitrary arrests to impede alleged antiregime activities. Plainclothes officers often arrived unannounced at homes or offices, arrested persons, conducted raids, and confiscated private documents, passports, computers, electronic media, and other personal items without warrants or other assurances of due process. Individuals often remained in detention facilities for long periods without charges or trials and were sometimes prevented from informing others of their whereabouts for several days [ ... ]. Section 1. e. Denial of Fair Public Trial: [ ... ], Trial Procedures: [ ... ] Political Prisoners and Detainees: Statistics regarding the number of citizens imprisoned for their political beliefs were not available. The ICHRI estimated there were 500 political prisoners in the country, including those arbitrarily detained for peaceful activities or the exercise of free expression. Other human rights activists estimated there could be more than 1,000 prisoners of conscience, including those jailed for their religious beliefs [ ... ]. During the year the government arrested students, journalists, lawyers, political activists, women ’ s activists, artists, and members of religious minorities (see sections 1.a. through 1.e., 6, and 7.a.); charged many with crimes, such as “propaganda against the system” and “insulting the supreme leader;” and treated such cases as national security trials [ ... ]. Political prisoners were also at greater risk of torture and abuse in detention. The government often placed political prisoners in prisons far from their homes and families. The government did not permit international humanitarian organizations or UN representatives to have access to political prisoners. Section 1. f. Arbitrary Interference with Privacy, Family, Home, or Correspondence: The constitution states that “reputation, life, property, [and] dwelling[s]” are protected from trespass, except as “provided by law,” but the government routinely infringed on this right. Security forces monitored the social activities of citizens, entered homes and offices, monitored telephone conversations and internet communications, and opened mail without court authorization. There were widespread reports that government agents entered, searched, and ransacked the homes and offices of reformist or opposition leaders, activists, political prisoners, journalists, and their families to intimidate them [ ... ]. ” 3. Report by “Freedom from Torture”: We will make you regret everything - Torture in Iran since the 2009 elections, March 2013, (http://www.refworld.org/docid/514088902.html) 37. “Freedom from Torture” is a non-governmental medical foundation for the care of victims of torture in the United Kingdom. The organisation has been working for more than 25 years to provide direct clinical services for survivors of torture who arrive in the United Kingdom, as well as striving to protect and promote their rights. Its above- cited report on torture victims from Iran states: “ Key findings of the report: The detailed examination of evidence of detention and torture perpetrated in these cases in 2009-2011, as documented in the sample of 50 medico-legal reports (MLRs) prepared by Freedom from Torture, indicates that: Torture was a key tool of repression used by the Iranian authorities as part of their efforts to crush dissents in Tehran and elsewhere in the months leading up to and for an extended period following the presidential elections in June 2009; This crackdown involved torture – often during multiple detention episodes – of many people for whom the 2009 presidential election period was the first time they, or other family members, had engaged in any level of political or other form of activism; A wide range of physical, psychological and environmental torture methods were practised in a highly systematic way by torturers in Iran during this period; Torture was often used to obtain information about individuals and networks involved in organising political or other activity deemed to be ‘ anti-regime ’ and to force people to sign what they understood to be ‘ confessions ’ or other statements which were used against them in legal proceedings or which could be so used in the future; Half of the cases in this study were arrested in Tehran with the remainder in other provincial capitals and a small number in rural areas. In all cases, the reasons for detention and torture included a ‘ political ’ element, often at a very low level, even if this emerged after arrest for non-political offences or was imputed to the person on account of the activities of their family members or, in one case, a business associate. Twenty seven of the cases were arrested and detained while attending demonstrations and other protests following the presidential elections [ ... ].” 4. The International Federation for Human Rights ’ and the Iranian League for the Defense of Human Rights ’ Submission on the Islamic Republic of Iran ’ s Compliance with ICCPR to the Human Rights Committee of the United Nations (103rd session, 17 October – 4 November 2011 in Geneva) 38. In the above- cited submission, the non-governmental human rights organisations “International Federation for Human Rights” and “Iranian League for the Defense of Human Rights” list the sentences of numerous human rights activists, journalists, artists and students suspected of anti -regime protests and actions. Several of these sentences included long prison terms and severe flogging. The list in the report includes : “(p. 7. ) Other Women : Shadi Sadr and Mahbubeh Abbas-Gholizadeh, two founders of the “Stop Stoning to Death” Campaign were sentenced in absentia to six years of imprisonment with 74 lashes and two and a half years of imprisonment with 30 lashes, respectively, on 17 May 2010. They have both left Iran to avoid imprisonment [ ... ]. (p. 27.) Artists: [ ... ] Mohammad Nourizad, a director and journalist, was arrested in December 2009 and sentenced to three and a half years ’ imprisonment and 50 lashes. He was released on 6 May 2011[ ... ]. (p. 32.) Students : Plain-clothed security agents, members of the Special Squads of the Police and Special Squads of the Islamic Revolution Guards Corps brutally attacked some university dormitories and ransacked them in Tehran, Isfahan and Shiraz, in the aftermath of the June 2009 Presidential Election, as a result of which five students were killed in Tehran, two in Isfahan and two in Shiraz. In Tehran Dormitory, 100 students were arrested. However, rather than investigating the attacks and killings, military courts tried about 40 of them who had lodged complaints with the judiciary and sentenced them to punishments ranging from financial penalties, lashing and prison sentences from 3 to 10 months, in May 2011. Since then, several students have lost their lives in the protest demonstrations or in custody [ ... ].” THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 39. The applicant claims that deportation to Iran would subject him to a real risk of being arrested and exposed to torture or inhuman and degrading treatment or punishment in violation of Article 3 of the Convention, which reads : “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 40. The Government contested that argument. A. Admissibility 41. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The submissions of the parties (a) The applicant 42. The applicant argued that, if forced to return to Iran, he would face a real and serious risk of being arrested and tortured because of his participation in demonstrations against the Iranian regime and the distribution of critical leaflets during these demonstrations. The Iranian regime still had an interest in persecuting the participants in the demonstrations following the presidential elections of 2009. Citing Internet links on YouTube and the BBC, both in Persian, the applicant claimed that the speaker of the Iranian Ministry of Justice and the General Prosecutor had publicly announced on 21 July 2013 that participants in the demonstrations of 2009 who returned to Iran would be prosecuted for the rioting that occurred during these demonstrations. As his conviction by the Revolutionary Court of Teheran of 7 May 2013 showed, the Iranian regime also still had an interest in persecuting him personally. 43. The applicant further claimed that he would be arrested upon his return to Iran because he had left the country illegally without an exit permit. Upon his arrest the Iranian authorities would immediately check his background and would find out about his conviction. The judgment of 7 May 2013 would consequently be executed and he would be exposed to a prison sentence of seven years and 70 lashes of the whip. Such punishment was excessive and inhuman. Besides, it was generally known, for example from reports by Amnesty International, that torture and ill- treatment was common in Iranian prisons. 44. The applicant emphasised again that he had actively taken part in the post-election demonstrations against the Iranian regime. He claimed that in his absence his parents ’ house had been searched on 10 May 2011 by the Ettelaad security forces. A summons in his name had been delivered to his parents. As he had not obeyed the summons, his father had been arrested on 12 May 2011 and had been questioned about his son ’ s whereabouts. The applicant had subsequently hidden at his sister ’ s home in Teheran. On 4 June 2011 he had left Iran, had travelled through Turkey and other unknown countries, had entered Switzerland illegally on 26 June 2011 and had applied for asylum on 27 June 2011. 45. The applicant claimed that he had done everything possible in the circumstances to substantiate the assertion that he would face a real and serious risk of torture if he returned to Iran. He was of the view that, essentially, he had explained to the Migration Board what had happened in Iran in a consistent way. The inconsistencies in his story concerned only minor events and were due to the fact that the two interviews with the Migration Board had been different in nature. While the first one had been a short summary interview, the second had consisted of detailed questioning. It was therefore logical that certain details of his story, like the house search of 2011, had only been mentioned during the second interview. Furthermore, it had to be taken into account that a period of almost two years had elapsed between the two interviews. Nobody could be expected to tell exactly the same story after such a long time. 46. The applicant further emphasised that he had submitted supporting documents demonstrating his persecution by the Iranian regime. He had submitted the original of the summons from the Revolutionary Court of Teheran of 10 May 2011 to the Migration Board during the first interview. Furthermore, he had submitted a copy of the second summons from the Revolutionary Court of Teheran of 5 February 2013 and a copy of the conviction issued by the Revolutionary Court of Teheran of 7 May 2013 to the Federal Administrative Court upon his appeal. He claimed that these documents had been largely ignored by the Swiss authorities, although they would have been capable of dispelling any doubts regarding his reported persecution in Iran. He further claimed that he had not been able to submit the originals of the summons of 5 February 2013 and of the judgment of conviction of 7 May 2013 prior to delivery of the judgment of the Federal Administrative Court because his family had not been able to send the originals immediately. They had been short of time and were afraid that despatch of the originals by mail would be monitored by the Iranian authorities. By the time his case was being decided by the Federal Administrative Court, his family had sent him only the copies. The copies were therefore the only evidence he had been able to submit to the Federal Administrative Court in order to support his claims. In reply to the Government ’ s submission that he had not explained by what means the copies had been sent to him, the applicant had stated that they had been sent by email. 47. The applicant further pointed out that he had tried everything possible in the circumstances to dispel any doubts regarding the authenticity of the summons and the judgment. He had suggested to the Federal Administrative Court that the originals of the summons and the Iranian conviction could be taken to the Swiss embassy in Teheran in order to have the authenticity of the documents checked. He complained that the Federal Administrative Court had not reacted to this suggestion but had swiftly delivered its judgment without even asking the Migration Board for its view on the matter. Given that the Federal Administrative Court had not reacted to the applicant ’ s suggestion, his family had not dared to take the documents to the embassy on their own initiative, firstly because it was not possible to enter the embassy without being invited and secondly because there would have been a high risk that his family members would have been asked by the Iranian guards in front of the embassy why they wished to go inside. His sister had therefore kept the documents safe and had waited for an invitation to take them to the embassy. When she was informed that the applicant ’ s request for asylum had been rejected by the Federal Administrative Court, she had taken the documents to her parents ’ house in Karaj. In August 2013 the husband of another of the applicant ’ s sisters had finally dared to send the originals to the applicant. ( b ) The Government 48. The Government contested the applicant ’ s arguments. They were of the view that there was no real risk that the applicant would be subjected to treatment contrary to the guarantees of Article 3 if deported to Iran. The Government shared the view of the Migration Board and the Federal Administrative Court that the applicant ’ s account of events in Iran was not credible. They emphasised that the inconsistencies between the applicant ’ s two accounts concerned the description of the delivery of the first summons, the search of the applicant ’ s parents ’ house, the details of his hiding prior to his escape from Iran and the arrest of friends during his last demonstration. The discrepancies hence all concerned decisive points of the applicant ’ s story. 49. The Government also shared the view of the Migration Board that the summons of 10 May 2011 could not, in isolation, prove a risk of persecution in Iran. They argued that because of the implausibility of the applicant ’ s story, there was also no absolute necessity to verify the authenticity of the copies of the summons of 5 February 2013 and of the judgment of 7 May 2013. The Government argued that such documents could be purchased in Iran. Moreover, they were of the view that the applicant should have been obliged to present the originals of the judgment of 7 May 2013 before the Federal Administrative Court, as the original of a judgment is handed out to convicted persons even in Iran. Should the family of the applicant truly have feared reprisals had they sent the originals to the applicant, the applicant could at least have explained by which means he had received the copies. Such information would have been very helpful as the copies showed no trace of submission by fax. 50. The Government further argued that the applicant had been represented before the Federal Administrative Court by counsel with experience in asylum cases. In the Government ’ s view, after the interim decision of the Federal Administrative Court, counsel must have been aware that the Federal Administrative Court would not regard the copies as proof in its final decision. The applicant could thus have submitted the originals to the Federal Administrative Court, so that the court could have verified the authenticity of the document. Besides, the applicant could have asked his sister, who lived in Teheran, to take the original documents to the Swiss embassy in Iran, instead of asking the Federal Administrative Court to have the authenticity and the accuracy of the concerned documents verified in that embassy. 51. The Government made no further comments on the applicant ’ s submission that the originals of the summons of 5 February 2013 and the judgment of 7 May 2013 had been in his possession since August 2013, but referred to the comments made with regard to the copies of these documents. 2. The Court ’ s assessment (a) Recapitulation of the relevant principles 52. The Court reiterates that Contracting States have the right, as a matter of international law and subject to their treaty obligations, including the Convention to control the entry, residence and expulsion of aliens ( R.C. v. Sweden, no. 41827/07, § 48, 9 March 2010; see also Üner v. the Netherlands [GC], no. 46410/99, § 54, ECHR 2006 ‑ XII ). However, expulsion by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned, if deported, faces an individual and real risk of being subjected to treatment contrary to Article 3. In such a case, Article 3 implies an obligation not to deport the person in question to that country ( Saadi v. Italy [GC], no. 37201/06, § 125, ECHR 2008 ). 53. In order to determine whether there is an individual, real risk of ill ‑ treatment, the Court must examine the foreseeable consequences of sending the applicant to the receiving country bearing in mind the general situation there and his personal circumstances ( El- Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, § 213, ECHR 2012; see also Vilvarajah and Others v. the United Kingdom, 30 October 1991, § 108, Series A no. 215 ). 54. With regard to the material date, the existence of such individual, real risk of ill-treatment must be assessed primarily with reference to the facts which were known or ought to have been known to the Contracting State at the time of expulsion ( Saadi, cited above, § 133). However, since the applicant has not yet been deported, the material point in time must be that of the Court ’ s consideration of the case. It follows that, although the historical position is of interest in so far as it may shed light on the current situation and its likely evolution, it is the present conditions which are decisive ( Chahal v. the United Kingdom, 15 November 1996, § 86, Reports of Judgments and Decisions 1996 ‑ V ). 55. With regard to the burden of proof with respect to the risk of ill ‑ treatment the Court acknowledges that, owing to the special situation in which asylum seekers often find themselves, it is frequently necessary to give them the benefit of the doubt when it comes to assessing the credibility of their statements and the documents submitted in support thereof. However, when information is presented which gives strong reasons to question the veracity of an asylum seeker ’ s submissions, the individual must provide a satisfactory explanation for the alleged discrepancies. In principle, the applicant has to adduce evidence capable of proving that there are substantial grounds for believing that, if the measure complained of were to be implemented, he would be exposed to a real risk of being subjected to treatment contrary to Article 3 of the Convention. Where such evidence is adduced, it is for the Government to dispel any doubts about it ( N. v. Sweden, no. 23505/09, § 53, 20 July 2010 ). (b) Application of these principles to the present case 56. In the present case, the Court observes at the outset that the applicant is to be returned to a country where by all accounts the human rights situation gives rise to grave concern. It is evident from the current information available on Iran (as set out above in paragraphs 35-38 ) that the Iranian authorities frequently detain and ill-treat persons who peacefully participate in oppositional or human rights activities in the country and that the situation has not eased since the post-election demonstration in 2009. The Court has already noted in its recent case-law on expulsion to Iran ( see S.F. and Others v. Sweden, no. 52077/10, § 63, 15 May 2012, and R.C. v. Sweden, no. 41827/07, § 49, 9 March 2010 ) that it is not only the leaders of political organisations or other high-profile persons who are detained : anyone who demonstrates or in any way opposes the current Iranian regime may be at risk of being detained and ill-treated or tortured. The recent reports on the human rights situation in Iran show that the Court ’ s assessment in the case-law referred to above still applies. 57. Whilst being aware of the reports of serious human rights violations in Iran as set out above, the Court does not find them to be of such a nature as to show, as they stand, that there would be as such a violation of the Convention if the applicant were to return to that country. The Court has to establish whether or not the applicant ’ s personal situation is such that his return to Iran would contravene Article 3 of the Convention (see S.F. and Others v. Sweden, cited above, § 63; see also R.C. v. Sweden, cited above, § 49 ). 58. The Court notes that, as stated in the applicant ’ s submission, he was sentenced in absentia to seven years ’ imprisonment, the payment of a fine and 70 lashes of the whip because of his participation in anti-regime demonstrations. The Court considers that if the applicant ’ s punishment, as he claimed, were to be enforced, such extensive flogging would cause deliberate and severe physical suffering of a severity that would have to be regarded as torture within the meaning of Article 3 of the Convention. As the applicant left Iran without an exit visa and without a passport, he is likely to be arrested upon his return to Iran, where his background would be checked and any conviction would be discovered immediately (see the summary and the assessment of the U.K. Home Office ’ s Country of Origin Information Report on Iran from August 2009 in R.C. v. Sweden, cited above, § § 35 and 56, 9 March 2010). The sentence is therefore likely to be enforced upon his return. Moreover, reports on the prison conditions of political prisoners in Iran in general (see paragraphs 35-38 above) show that the applicant would be exposed to inhuman and degrading treatment and to the risk of being tortured if his prison sentence were to be enforced. 59. In determining whether the applicant has adduced sufficient evidence to prove that he would be exposed to a real risk of treatment contrary to Article 3 of the Convention, the Court agrees with the national authorities that the applicant ’ s story manifests some weaknesses, especially when it comes to his account of the submission of the first summons and the search of his parents ’ house on 10 May 2011. The Court further agrees with the national authorities that the discrepancies cannot be explained by the applicant ’ s allegation that the interviewer at his second hearing was biased. The fact that a neutral witness from a non ‑ governmental aid organisation was present during the hearing and that this witness had no cause to document any irregular procedural events in the minutes of the hearing are strong indicators that the interview was carried out in a fair way. 60. The Court notes, however, that the credibility of the accounts the applicant gave during the two interviews cannot be assessed in isolation but must be judged in the light of the further explanations given by the applicant. The Court disagrees with the Swiss authorities in so far as the latter considered that these explanations were generally not sufficient to dispel the doubts about the veracity of his story. It agrees with the applicant that the difference in the nature of the two hearings cannot be disregarded when assessing the credibility of his accounts. It is clear from the interviewer ’ s own comment in the minutes of the first hearing ( “ For lack of staff, the facts summarised under no. 15 of the minutes were not established in detail .” ) that during the first interview the applicant was questioned in only a cursory way and was expected to give only a summarised account of the events leading to his escape from Iran. The detailed enquiries about specific points concerning events in Iran during the second interview, on the other hand, show that the applicant was expected to give an in - depth account of the events. This difference may well explain some of the major discrepancies between the applicant ’ s two accounts, which do not necessarily have to be interpreted as contradictory statements but may result from the fact that the applicant gave a compressed and abridged account of the events during the first hearing. This is especially true with regard to the applicant ’ s omission to mention the house search of 10 May 2011 during the first hearing and the fact that he plainly stated during the first hearing that he had hidden at his sister ’ s home and at friends ’ homes before his departure from Iran and explained only during the second hearing that he had indeed hidden with his sister but had also spent time with friends during that period. 61. The Court further agrees with the applicant that the fact that the first hearing was held almost immediately after his arrival in Switzerland whereas the second hearing took place some two years after his departure from Iran, also goes some way towards explaining the discrepancies between the two accounts given by the applicant. 62. Furthermore, the Court does not agree with the Swiss Government that, merely because some of the documents were copies and on the ground of a generalised allegation that such documents could theoretically have been bought in Iran, the question of whether or not the applicant was able to prove that he would face treatment contrary to Article 3 of the Convention could be decided solely on the basis of the accounts he gave during the two interviews, without having regard to the documents submitted in support. This approach disregards the particular situation of asylum seekers and their special difficulties in providing full proof of the persecution in their home countries (see paragraph 5 5 above ). The veracity of the applicant ’ s story must therefore also be assessed in the context of the documents submitted. 63. It must further be noted that the applicant ’ s sentencing to a long prison term and 70 lashes of the whip is not implausible in itself. As shown above (see paragraph 3 7 ) it is not only the leaders of political organisations or other high-profile persons who risk detention and ill ‑ treatment or torture but rather anyone who demonstrates or in any way opposes the current Iranian regime. Furthermore, flogging is a common punishment in Iran, not only for ordinary crimes like theft or adultery, but also for political convictions (see paragraphs 3 5 and 38 above ). It is therefore possible that the alleged sentence was meted out to the applicant for participating in anti ‑ regime demonstrations and for handing out leaflets. 64. In addressing the question whether the summons of 10 May 2011, the copy of the summons of 5 February 2013 and the copy of the judgment of 7 May 2013 were authentic documents or copies of authentic documents, the Court considers that it cannot decide this question itself. However, it is of the view that by submitting the documents in question the applicant did everything that could be expected in his situation in order to prove his conviction for participating in anti-regime demonstrations in Iran, while on the other hand the national authorities – that is to say the Swiss Government – did not substantively challenge the authenticity of the documents. 65. With regard to the summons of 10 May 2011, the applicant had already submitted an allegedly original document during his first hearing. The document was therefore provided to the national authorities as early as possible. Neither the Migration Board nor the Federal Administrative Court challenged the authenticity of the summons. The Migration Board did not consider this question as it deemed the applicant ’ s account to be inconsistent and was therefore of the view that a summons alone could not prove the applicant ’ s persecution anyway. The Federal Administrative Court did not mention the summons of 10 May 2011 in its judgment at all. There is no indication that the Federal Administrative Court checked the authenticity of the summons or the assertion that the Swiss embassy in Teheran was contacted for help by the Federal Administrative Court. The one and only party to challenge the authenticity of the summons was the Swiss Government in their observations before this Court, in which they called into question the authenticity of the summons with the generalised allegation that documents of such kind could be purchased in Iran. The Government did not provide any reasons as to why they believed that the summons in question was falsified, however, alleging merely that the applicant ’ s story was not credible. As noted above, the Court does not share the view that the discrepancies in the applicant ’ s accounts were of such a serious nature that they could allow the documents submitted by the applicant to be ignored, but considers that they could to a considerable degree in fact be dispelled by the applicant ’ s further explanations. Consequently, as there is no indication that the Government tried to verify the authenticity of the summons through specialists or with the help of the Swiss embassy in Teheran, the Government did not challenge the authenticity of the documents in a proper manner. The Court is therefore of the view that the summons of 10 May 2011 cannot reasonably be disregarded. The summons matches the applicant ’ s account of the events of 10 May 2011 in Iran and therefore adds to the plausibility of his story. 66. With regard to the copies of the summons of 5 February 2013 and the judgment of 7 May 2013, the Court agrees with the Government that submission of the originals of these documents would undoubtedly have constituted better proof in support of the applicant ’ s cause. However, it has to be recognised that the applicant gave reasonable explanations as to why he provided only copies during the proceedings before the Federal Administrative Court and why he could not provide the originals at that time. The applicant explained that he had only learnt about the existence of the second summons and of the judgment in absentia when he called his family on his lawyer ’ s advice when preparing his application to the Federal Administrative Court. As the applicant was not represented by counsel until that stage, this explanation seems plausible. Furthermore, the applicant explained that his family was too afraid to send the originals by post. Having in mind the reports on the surveillance of houses and of correspondence by the Iranian authorities (see paragraph 3 6 in fine above ), the applicant ’ s assertion that his family had been too afraid to send the originals by mail is also plausible. The same holds true for the applicant ’ s assertion that his sister did not dare to take the originals to the Swiss embassy on her own initiative without an invitation to do so, as she feared being questioned and checked out by the Iranian guards in front of the embassy if she did not have an official appointment. It must also be taken into account that under the circumstances described by the applicant, the time period between the alleged conviction (7 May 2013) and the judgment of the Federal Administrative Court (2 July 2013) was a relatively short one in which to acquire original documents from the country from which the applicant had fled. The applicant therefore gave a credible explanation as to why he had not been able to provide the Federal Administrative Court with the originals of the documents submitted. 67. Nonetheless, neither the Federal Administrative Court nor the Swiss Government has provided any reasons why copies could not be taken into account at all in the applicant ’ s favour. The Government merely complained that during the domestic proceedings the applicant had not given any explanations as to how he had acquired the copies and that the copies did not show any traces of submission by fax. The Court agrees with the Government that such explanations would have been helpful and would have added to the credibility of the applicant ’ s story. However, it must be pointed out that the applicant was not asked to provide any information about the whereabouts of the copies by the Federal Administrative Court, because that court simply maintained that, being copies, the submissions did not have any probative value. It must furthermore be noted that during the proceedings before this Court, the applicant satisfactorily explained the manner in which he received the copies, namely by stating that he had received them by email. 68. The Court further notes that the applicant was deprived of additional opportunities to prove the authenticity of the second summons and the Iranian conviction before the national authorities because the Federal Administrative Court ignored the applicant ’ s suggestion of having the credibility of the documents further assessed. It did not follow up the applicant ’ s proposal to submit the copies to the Migration Board for further comments, but instead decided directly on the basis of the applicant ’ s file and his appeal. Furthermore, the Federal Administrative Court, without giving any reasons, neither followed up the applicant ’ s suggestion to ask the Swiss embassy in Teheran whether the alleged originals could be handed over to it by the applicant ’ s relatives, nor did it ask the embassy for any help in assessing whether the copies could have been produced from an original summons and an authentic conviction, nor is there any indication that the Federal Administrative Court checked whether the documents showed any indication of being copies of falsified documents. Furthermore, the Government did not respond to the applicant ’ s announcement during the exchange of observations that he was now in possession of the originals of the summons and the judgment and could submit them to the Migration Board if the Government so wished. The applicant was hence deprived of any further method of proving that he truly was persecuted by the Iranian regime. 69. In the light of all the above circumstances, the Court concludes that the applicant did adduce evidence capable of proving that there are substantial grounds for believing that, if he were to be expelled, he would be exposed to a real risk of being subjected to treatment contrary to Article 3 of the Convention and he must be given the benefit of the doubt with regard to the remaining uncertainties. The Government on the other hand have not dispelled any doubts that the applicant would face treatment contrary to Article 3 if expelled to Iran. Accordingly, the Court finds that the implementation of the expulsion order against the applicant would give rise to a violation of Article 3 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 13 READ IN CONJUNCTION WITH ARTICLE 3 OF THE CONVENTION 70. The applicant further complained under Article 13 read in conjunction with Article 3 of the Convention that he had no effective domestic remedy through which to assert his claim that he had been summoned and sentenced in absentia to seven years ’ imprisonment and 70 lashes of the whip by the Revolutionary Court of Teheran and would therefore be exposed to the risk of treatment contrary to Article 3 of the Convention. Article 13 reads: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 71. The Court has found in paragraphs 62 -6 9 above that the Federal Administrative Court gave no convincing reason for not taking into account the alleged summons of 10 May 2011, the copy of the alleged summons of 10 February 2013 and the copy of the alleged judgment of 7 May 2013 and that the veracity of the applicant ’ s account could not be assessed without having regard to the documents the applicant submitted to the domestic authorities. While finding this complaint admissible, the Court does not consider it necessary to examine the applicant ’ s complaint under Article 13 taken in conjunction with Article 3 of the Convention, since it raises no separate issue in the circumstances of the present case ( compare, among other authorities, Kolyadenko and Others v. Russia, nos. 17423/05, 20534/05, 20678/05, 23263/05, 24283/05 and 35673/05, § 227, 28 February 2012, and Ermakov v. Russia, no. 43165/10, § 232, 7 November 2013 ). III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 72. The applicant also complained under Article 6 of the Convention that the Migration Board and the Federal Administrative Court violated his right to a fair trial. The Court notes that this provision does not apply to asylum proceedings as they do not concern the determination of either civil rights or obligations or of any criminal charge ( see Maaouia v. France [GC], no. 39652/98, § 40, ECHR 2000-X). It follows that this complaint is incompatible ratione materiae with the provisions of the Convention and must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention. 73. The applicant further complained that the decision of the Migration Board and the judgment of the Federal Administrative Court infringed his rights under Article 2, Article 5 and Article 10 of the Convention. He did not provide any specific arguments as to how the Swiss authorities had violated these rights and why he thought that these Convention rights had been infringed. It follows that these complaints are not substantiated. They are therefore manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention. IV. RULE 39 OF THE RULES OF COURT 74. The Court points out that, in accordance with Article 44 § 2 of the Convention, the present judgment will not become final until (a) the parties declare that they will not request that the case be referred to the Grand Chamber; or (b) three months after the date of the judgment, if reference of the case to the Grand Chamber has not been requested; or (c) the Panel of the Grand Chamber rejects any request to refer under Article 43 of the Convention. 75. It considers that the indication made to the Government under Rule 39 of the Rules of Court (see paragraph 4 above ) must remain in force until the present judgment becomes final or until the Court takes a further decision in this connection ( compare, mutatis mutandis, A.A. v. Switzerland, no. 58802/12, § § 64-65, 7 January 2014, and F.G. v. Sweden, no. 43611/11, §§ 46-47, 16 January 2014 ). V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 76. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 77. The applicant claimed 8,168 Swiss francs (CHF) (approximately 6, 710 euros (EUR) ) in respect of pecuniary damages, arguing that he had lost his job due to the negative decision of the Federal Administrative Court and should therefore be reimbursed for the loss of his monthly salaries of CHF 4,084 for November and December 2013. He further asked the Court to award a sum which he left to the Court ’ s discretion in respect of non ‑ pecuniary damage. 78. The Government were of the view that even in the event of a violation of the Convention, there would be no sufficient link between such violation and the loss of the applicant ’ s salaries. The Government were further of the view that the finding of a violation as such would constitute sufficient compensation for non-pecuniary damage. 79. The Court does not discern a sufficient causal link between the potential violation found and the pecuniary damage alleged; it therefore rejects this claim. In view of the conclusions above (see paragraph 6 9 ) the Court considers that its finding that the implementation of the expulsion order against the applicant would give rise to a violation of Article 3 of the Convention constitutes sufficient just satisfaction and therefore also dismisses the applicant ’ s claim for non-pecuniary damage (see also F.N. and Others v. Sweden no. 28774/09, § 84, 18 December 2012 ). B. Costs and expenses 80. The applicant also claimed CHF 2,940 (approximately EUR 2,415) in respect of legal fees and expenses incurred in the asylum proceedings before the domestic authorities and before this Court. The sum was composed of a fee of CHF 300 for the first hour of advice by the applicant ’ s lawyer, fees for 20 hours of further advice and other legal work by the applicant ’ s lawyer at the counsel ’ s tariff of CHF 100 per hour, CHF 600 for court fees and CHF 40 covering the costs for telephone, copies, etc. The applicant submitted a list of his counsel ’ s tariffs which substantiated these claims. 81. In his further observations of 23 December 2013, the applicant informed the Court that the Federal Administrative Court calculated lawyers ’ fees and expenses at a minimum standard rate of CHF 150 per hour. The applicant was therefore of the view that fees and expenses should be compensated on that basis. He therefore claimed CHF 300 for the first hour of advice, CHF 3,00 0 for the above - mentioned further 20 hours of advice, plus CHF 60 for costs of telephone, copies, etc., CHF 600 for court fees and CHF 450 for three hours of further advice during the proceedings before this Court in November and December 2013, which amounts to a total of CHF 4,410 (approximately EUR 3,623 ). 82. The Government were of the view that in accordance with Rule 60 of the Rules of Court, the applicant could only claim the costs and expenses actually incurred. The Government therefore asked the Court to award only the CHF 2 ,940 which the applicant had requested in his observations of 10 October 2013, should the Court find a violation of the Convention. 83. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, taking account of the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 2,415 in accordance with the actual tariffs of the applicant ’ s counsel, covering costs under all heads, plus any tax that may be chargeable to the applicant. C. Default interest 84. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The applicant’s expulsion was suspended on the basis of an interim measure granted by the Court in September 2013 under Rule 39 of its Rules of Court, which indicated to the Swiss Government that he should not be expelled for the duration of the proceedings before it. The application of Rule 39 was lifted when the Court’s judgment finding that the implementation of the expulsion order against the applicant would give rise to a violation of Article 3 of the Convention became final. |
470 | Preliminary ruling | II. RELEVANT DOMESTIC AND EUROPEAN UNION LAW A. Domestic law and practice 26. The relevant part of Article XXVIII of the Fundamental Law of Hungary provides: “(1) Everyone shall have the right to have any charge against him or her, or his or her rights and obligations in any litigation, adjudicated within a reasonable time in a fair and public trial by an independent and impartial court established by an Act. ... ” 27. Section 80(1) of the 1997 Pensions Act provides as follows: “ If, following the examination of a pension request, it turns out that the pension authority violated the applicable law and ... the pension established or disbursed was therefore unduly low, then the arrears and ... interest shall be paid for the five-year period preceding the establishment of the violation.” 28. The relevant provisions of the Code of Civil Procedure (Act no. III of 1952), as in force at the material time, provided as follows : Article 155/A “(1) The court may request the [CJEU] for a preliminary ruling in accordance with the rules laid down in the Treaty establishing the European Community. (2) The court shall make a reference for a preliminary ruling by order ( végzés ) and shall [simultaneously] stay the proceedings. In the order, the court shall specify the question for which a preliminary ruling is requested and describe the circumstances of the case and the relevant domestic law inasmuch as it is necessary for answering the question referred to the [CJEU]. The order shall be notified to the [CJEU] and, for information, to the Minister in charge of justice at the same time. (3) No appeal lies against a court decision making a reference for a preliminary ruling or dismissing a request for a reference for a preliminary ruling.” Article 272 “(2) The petition for review shall specify the decision that is the subject thereof and the substance of the decision requested; furthermore, it shall set out the alleged infringement, specify the legal provision that has been breached and explain the reasons why the impugned decision requires modification. ” Article 275 “(2) The Kúria may review a final decision only within the framework of the petition for review ... unless it decides to dismiss the action of its own motion, or if the court that rendered the decision had not been properly formed, or if a judge who should have been disqualified by law took part in rendering the decision.” 29. In leading case no. BH 2015.7.203 the Kúria held as follows: “A petition for review does not meet the requirements [of the Code of Civil Procedure] if, for the purposes of the specification of the infringement, it contains only a general reference to [certain] Chapters ... of the Code of Civil Procedure. The petition for review cannot be examined on the merits if the party specifies the infringed legal provision but does not provide any reasoning in that connection.” 30. In leading case no. BH 2016.12.342 the Kúria held, in so far as relevant: “A petition for review may only be examined on the merits if[, in addition to a pure reference to the allegedly violated legal provision,] the petitioning party also describes the substance of the infringement, explains his or her legal opinion thereon and sets out the reasons supporting his or her argument.” 31. In leading case no. BH 1995.2.99 the Kúria held, in so far as relevant: “The petition for review must specify the alleged infringement concretely; it is not sufficient to refer to previous submissions. ... [The petitioning party] did not set out the reasons on which he relied in challenging the final judgment; he only referred to the content of his appeal [against the first - instance judgment]. However, the petition for review is an independent, extraordinary remedy[. Given] its special nature, references to previous submissions are not accepted.” 32. Section 46 (1) of the Constitutional Court Act (Act no. CLI of 2011) provides as follows: “If the Constitutional Court, in proceedings conducted by it in the exercise of its competences, declares an omission on the part of the legislature that results in a violation of the Fundamental Law, it shall call upon the organ responsible for the omission to take action and set a time-limit for that. ” 33. The relevant parts of the Constitutional Court ’ s decision no. 7/2013 (III.1) AB of 1 March 2013 read as follows : “[26] The Fundamental Law of Hungary, having entered into force in January 2012, imposes on the Constitutional Court the ... task of reviewing the conformity of judicial decisions with the Fundamental Law. In accordance with Article 24 (2) ( d) of the Fundamental Law and section 27 of the Constitutional Court Act, the Constitutional Court bears ultimate responsibility for ensuring judicial decisions ’ conformity with the Fundamental Law. In determining whether a judicial decision is or is not in conformity with the Fundamental Law, the Constitutional Court actually acts in order to redress a violation of a right enshrined under the Fundamental Law, hence it acts in protection of the Fundamental Law ... ... [30] In its decision no. 61/2011 (VII.13) AB the Constitutional Court took the principled stance that “in the case of certain fundamental rights, the Constitution specifies the substance of a fundamental right in the same way as international instruments ( for example the Covenant on Civil and Political Rights or the European Convention on Human Rights) do. In such cases, the level of protection to be afforded by the Constitutional Court to the fundamental right should in no way be lower than the level of international protection afforded to the given right (typically by the European Court of Human Rights in Strasbourg)” ... Based on this consideration, the Constitutional Court has reviewed the case-law of the [European] Court [of Human Rights] on the right to a reasoned court decision, which it also finds applicable in interpreting the right enshrined in Article XXVIII (1) of the Fundamental Law. ... [33] 3. The right to a reasoned court decision ... arises in the context of the constitutional requirement of a fair trial, specified in Article XXVIII (1) of the Fundamental Law. ... The Constitutional Court is to examine whether the procedural laws prescribing the duty of giving reasons were or were not applied in conformity with the requirements set forth in Article XXVIII (1) of the Fundamental Law ... [34] ... The constitutional requirement of giving reasons, being examined by the Constitutional Court, is inherent in Article XXVIII (1) of the Fundamental Law and determines the limits of the courts ’ margin of appreciation, notably by requiring courts to give reasons for their decisions, in conformity with the procedural laws. The constitutional violation of the duty to give reasons means the application of this procedural rule is not in conformity with the Fundamental Law ... The constitutional requirement of a fair trial demands, as a minimum, that the courts should, with due care, examine the parties ’ observations made on the relevant parts of the case and should include an assessment of those observations in their decisions ... ... [40] In the light of the above considerations, the Constitutional Court finds, on the merits, that the high court ... examined the questions ... concerning the relevant circumstances of the case and gave appropriate reasons as regards its conclusions. [41] The Constitutional Court therefore dismisses this part of the constitutional complaint.” 34. In a complaint adjudicated by the Constitutional Court on 19 May 2014 ( decision no. 3165/2014 (V. 23) AB ), the complainant argued that the Kúria had failed to comply with its obligation to refer a question on the interpretation of EU law to the CJEU for a preliminary ruling and to provide adequate reasons for its decision not to do so (see paragraph 5 of the decision). The Constitutional Court held that the competence to decide whether a reference for a preliminary ruling was necessary in the circumstances was vested solely in the judge hearing the particular case and the Constitutional Court lacked jurisdiction to overrule such decisions. It rejected the complaint as inadmissible and did not address the issue of adequate reasoning. 35. On 14 July 2015 (decision no. 26/2015 (VII. 21) AB ) the Constitutional Court examined a complaint regarding a final judgment of the Budapest High Court concerning its failure to refer a question to the CJEU for a preliminary ruling and to provide reasons for its decision not to do so. Following an analysis of the CJEU ’ s relevant case-law, the Constitutional Court found that, in the case at issue, the question proposed by the claimant related to the qualification and interpretation of domestic law (which, in the claimant ’ s view, contradicted EU law), rather than to the interpretation of the applicable EU law provision itself. In these circumstances, the Constitutional Court shared the Budapest High Court ’ s opinion that there had been no need for a reference for a preliminary ruling. It observed that, in accordance with the Code of Civil Procedure as in force at the relevant time, the courts were not required to give reasons for not making a reference to the CJEU. It held that such a situation – that is to say, if the courts did not adopt a formal decision complete with reasons when they refused to refer a question to the CJEU for a preliminary ruling – violated parties ’ rights to a fair trial. Accordingly, it declared that there had been an omission on the part of the legislature resulting in a violation of the Fundamental Law (see paragraph 32 above), and invited Parliament to amend the relevant legislation by 31 December 2015. However, the Constitutional Court ’ s decision did not find the Budapest High Court ’ s particular judgment unconstitutional on account of the court ’ s failure to provide reasons for the non-referral – indeed, it did not contain any arguments related to the lack of reasons in that particular judgment. 36. In accordance with the Constitutional Court ’ s decision no. 26/2015, Article 155/A (2) of the Code of Civil Procedure (see paragraph 28 above) was amended as of 4 December 2015 with the following additional wording : “ If the court dismisses a request for a reference for a preliminary ruling, it shall formulate its decision in the form of an order ( végzés ). The court is obliged to give reasons for that decision, by the latest in its decision on the merits that concludes the proceedings.” 37. In decision no. 3082/2016 (IV. 18) AB adopted on 12 April 2016 the Constitutional Court noted obiter dictum, in connection with a particular case, that the court hearing the case at issue had observed its obligation to provide reasons for not making a reference to the CJEU. B. European Union law and practice 38. The relevant part of Article 267 of the TFEU [1] provides : “The [CJEU] shall have jurisdiction to give preliminary rulings concerning: (a) the interpretation of the Treaties; (b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union; Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court to give a ruling thereon. Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court. ... ” 39. In applying that provision, the CJEU has held that a court or tribunal against whose decisions there is no judicial remedy under national law is required, where a question of interpretation of EU law (rather than a question relating to the validity of a Community act, see the judgment in Gaston Schul Douane-expediteur BV v. Minister van Landbouw, Natuur en Voedselkwaliteit, C-461/03, judgment of 6 December 2005, ECR I-10513, § 19) is raised before it, to comply with its obligation to bring the matter before the CJEU, unless it has established that the question raised is irrelevant or that the EU law provision in question has already been interpreted by the CJEU ( acte éclairé ) or that the correct application of EU law is so obvious as to leave no scope for any reasonable doubt ( acte clair ). The CJEU has also held that the existence of such a possibility must be assessed in the light of the specific characteristics of EU law, the particular difficulties to which its interpretation gives rise and the risk of divergences in judicial decisions within the EU ( see Srl Cilfit and Lanificio di Gavardo SpA v. Ministry of Health, 283/81, judgment of 6 October 1982, ECR 3415, § 21, and X v. Inspecteur van Rijksbelastingdienst and T.A. van Dijk v. Staatssecretaris van Financiën, joined cases C-72/14 and C ‑ 197/14, judgment of 9 September 2015, § 55 ). With that proviso, the CJEU also held that it was for the national courts against whose decisions there was no judicial remedy under national law, to take responsibility upon themselves independently for determining whether the case before them involves an acte clair (see X and van Dijk, cited above, § 59). 40. As regards the specific characteristics of EU law, the CJEU emphasised, among other aspects, that EU law used terminology which was unique to it and that the legal concepts did not necessarily have the same meaning in EU law as in the law of the various member States. It also stressed that every provision of EU law must be placed into context and interpreted in the light of the provisions of EU law as a whole, having regard to the objectives thereof and to its state of evolution at the date on which the provision in question was to be applied (see Cilfit, cited above, § § 19 and 20). 41. The CJEU also defined the meaning of the expression “where any such question is raised” contained in the third paragraph of Article 267 of the TFEU (see Cilfit, cited above, §§ 8-9). It later summarised its settled case-law on this point as follows (see Belgische Petroleum Unie VZW and Others v. Belgische Staat, C-26/ 11, judgment of 31 January 2013, §§ 23 ‑ 24) : “23. ... [I]t should be borne in mind that the fact that the parties to the main action did not raise a point of European Union law before the referring court does not preclude the latter from bringing the matter before the [CJEU]. In providing that a request for a preliminary ruling may be submitted to the [CJEU] where ‘ a question is raised before any court or tribunal of a member state ’, the second and third paragraphs of Article 267 TFEU are not intended to restrict this procedure exclusively to cases where one or other of the parties to the main action has taken the initiative of raising a point concerning the interpretation or the validity of European Union law, but also extend to cases where a question of this kind is raised by the court or tribunal itself, which considers that a decision thereon by the [CJEU] is ‘ necessary to enable it to give judgment ’ ... 24. Moreover, according to settled case-law, in proceedings under Article 267 TFEU, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. ” The CJEU further held, in the case of Lucio Cesare Aquino v. Belgische Staat (C-3/16, judgment of 15 March 2017, § 43), that : “[i]t follows from the relationship between the second and third paragraphs of Article 267 TFEU that the courts referred to in the third paragraph have the same discretion as all other national courts as to whether a decision on a question of EU law is necessary to enable them to give judgment.” 42. Article 94(6) of the Regulation 1408/71/EEC of the Council of the European Communities on the Application of Social Security Schemes to Employed Persons and their Families Moving within the Community, as in force until 1 May 2010, provided as follows: “If an application referred to in paragraph 4 or 5 [in particular, an application for the review of a pension awarded prior to the entry into force of this Regulation] is submitted within two years from the date of entry into force of this Regulation, the rights acquired under this Regulation shall have effect from that date, and the provisions of the legislation of any Member State concerning the forfeiture or limitation of rights may not be invoked against the persons concerned.” It appears that the interpretation of that provision has so far not been the subject of a preliminary ruling of the CJEU. [2] THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF THE UNFAIRNESS OF THE PROCEEDINGS 43. The applicant complained of a violation of his right to a fair trial. He argued that the domestic authorities and, in particular, the Kúria had not taken due account of the EU law provision which should have governed his case and which placed certain obligations on the national courts in respect of references for preliminary rulings, including an obligation incumbent on national courts of last instance to provide reasons for not making a reference. He relied on Article 6 § 1 of the Convention, which, in so far as relevant, reads as follows: “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing within a reasonable time by [a] ... tribunal ...” A. The parties ’ submissions 1. The Government 44. The Government raised an objection of non-exhaustion of domestic remedies. They argued that the applicant could have challenged the Kúria ’ s judgment before the Constitutional Court under Article XXVIII of the Fundamental Law of Hungary, which guaranteed the right to a fair trial. They referred to decision no. 7/2013 (see paragraph 33 above) in which the Constitutional Court examined, in the light of both Article XXVIII of the Fundamental Law and Article 6 of the Convention, the fairness of a high court ’ s final judgment, with particular regard to the question of whether the high court had observed its obligation to give appropriate reasons for its decision. In the Government ’ s view, the Constitutional Court ’ s decision demonstrated that the applicant could have brought his complaint relating to the unfairness of the proceedings and, in particular, the lack of appropriate reasoning, before the Constitutional Court – a legal avenue of which he had not availed himself. 45. As regards the merits of the complaint, the Government argued that both the Budapest Labour Court and the Kúria had considered the issue of compatibility of the relevant Hungarian rules with the provisions of the Regulation and had given reasons why the EU law provision relied on by the applicant had not been relevant in the case and why there had not been a conflict between domestic and EU law. 46. They further contended that on 6 March 2009 the applicant had withdrawn his request for a reference for a preliminary ruling (see paragraph 14 above). It had therefore been unnecessary for the courts to provide reasons as to why no such reference had been made to the CJEU. 2. The applicant 47. As regards the Government ’ s objection concerning non-exhaustion of domestic remedies, the applicant submitted that a constitutional complaint was not an effective remedy within the meaning of the Court ’ s case-law. He argued that, although the Constitutional Court would become aware of a constitutional complaint following a request lodged directly by the person concerned, the formal institution of proceedings depended on the discretion of that court, which only accepted such a complaint if it raised an issue that was of “fundamental importance ” or that “significantly affected ” the challenged judicial decision. For the applicant, it followed from the vagueness of these notions that the legal avenue of a constitutional complaint lacked a sufficient degree of certainty. Furthermore, he objected that the Government had failed to cite any case-law in which the Constitutional Court had analysed an omission of a reference for a preliminary ruling to the CJEU. 48. As to the merits of the complaint, the applicant submitted that the supreme domestic judicial instances had failed to consider the CJEU ’ s case-law on which he had extensively relied in order to clarify the correct interpretation of the Regulation. Nor had they provided sufficient reasoning, in line with the Cilfit requirements (see paragraph 39 above), as to why it was so obvious, leaving no scope for any reasonable doubt, that the non- payment of his pension with respect to a certain period had not amounted to a “forfeiture or limitation” prohibited by the Regulation. He also contended that he had not withdrawn his request for a reference for a preliminary ruling in 2009; he had only argued before the Supreme Court that, in the event it shared his opinion concerning the correct application of the Regulation, a reference would no longer be necessary (see paragraph 14 above). He submitted that, in any event, a national court or tribunal could refer a matter to the CJEU of its own motion – it was therefore not a party ’ s request but the substantial need for the CJEU ’ s interpretation that triggered the duty incumbent on a court of last instance to make a reference for a preliminary ruling. The applicant was of the view that such a need for interpretation had been present in his case; it had hence been the Kúria ’ s duty to refer a question to the CJEU or give ample reasons, in the light of the Cilfit criteria, why this had not been necessary in the particular circumstances. B. The Court ’ s assessment 49. The Court does not consider it necessary to examine the Government ’ s objection of non-exhaustion of domestic remedies (see paragraph 44 above), given that this part of the application is in any event inadmissible for the following reasons. 50. The Court notes that the applicant ’ s complaint challenged two aspects of the fairness of the domestic proceedings. 51. Firstly, that the domestic authorities applied section 80 (1) of the 1997 Pensions Act in his case, allegedly in blatant disregard of a mandatory provision of EU law, namely Article 94(6) of the Regulation (see paragraph 42 above), which was directly applicable and should have had direct effect in the case. 52. Secondly, that the Supreme Court, renamed the Kúria (see the first sentence of point 36 of the Constitutional Court ’ s decision cited in Baka v. Hungary [GC], no. 20261/12, § 55, ECHR 2016 ), as a court of last instance, failed to provide reasons in accordance with the Cilfit criteria as to why it had deemed it unnecessary to refer a question concerning the Regulation ’ s interpretation to the CJEU for a preliminary ruling. 53. The Court reiterates that, under Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention (see García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I). It is not competent to rule formally on compliance with domestic law, other international treaties or EU law. The task of interpreting and applying the provisions of EU law falls firstly to the CJEU, in the context of a request for a preliminary ruling, and secondly to the domestic courts in their capacity as courts of the Union, that is to say, when they give effect to a provision of EU law as interpreted by the CJEU (see Avotiņš v. Latvia [GC], no. 17502/07, § 100, ECHR 2016 ). It is therefore primarily for the national authorities, notably the courts, to interpret and apply domestic law, if necessary in conformity with EU law, the Court ’ s role being confined to ascertaining whether the effects of such adjudication are compatible with the Convention (see Ullens de Schooten and Rezabek v. Belgium, nos. 3989/07 and 38353/07, § 54, 20 September 2011 ). Furthermore, the Court should not act as a fourth instance and will not therefore question under Article 6 § 1 the judgment of the national courts, unless their findings can be regarded as arbitrary or manifestly unreasonable (see Bochan v. Ukraine (no. 2) [GC], no. 22251/08, § 61, ECHR 2015). 1. Complaint alleging a misinterpretation of EU law 54. In so far as the complaint challenged the Kúria ’ s interpretation of EU law, concerning notably the meaning of Article 94(6) of the Regulation and leading to the application of section 80 of the 1997 Pensions Act, the Court considers that the review of the soundness of that interpretation, adopted by the Kúria in its capacity as a court of the Union, is an area that falls outside the Court ’ s jurisdiction (see Ullens de Schooten and Rezabek, cited above, § 66 ). 55. It follows that the first part of the complaint (see paragraph 51 above) is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4. 2. Complaint of a lack of reasoning in connection with the need for a reference for a preliminary ruling 56. As regards the second aspect of the complaint, concerning the adequacy, within the meaning of Article 6 § 1 of the Convention, of the Kúria ’ s reasoning with respect to a potential reference for a preliminary ruling (see paragraph 52 above), the Court reiterates that the Convention does not guarantee, as such, any right to have a case referred by a domestic court to another national or international authority for a preliminary ruling. However, the Court does not rule out the possibility that, where a preliminary reference mechanism exists, refusal by a domestic court to grant a request for such a referral may, in certain circumstances, infringe the fairness of proceedings – in particular, where the refusal proves arbitrary, that is to say where there has been a refusal even though the applicable rules allow no exception to the principle of preliminary reference or no alternative thereto, where the refusal is based on reasons other than those provided for by the rules, and where the refusal has not been duly reasoned in accordance with those rules (see Ullens de Schooten and Rezabek, cited above, §§ 57-59). 57. The general principles relating to the obligation of reasoning on the national courts against whose decisions there is no remedy under national law and which decide not to refer a question on the interpretation of EU law that has been raised before them to the CJEU for a preliminary ruling, have been set out in the case of Ullens de Schooten and Rezabek (cited above, §§ 56 to 62; see also, mutatis mutandis, Vergauwen and Others v. Belgium (dec.), no. 4832/04, §§ 89 and 90, 10 April 2012; Dhahbi v. Italy, no. 17120/09, § 31, 8 April 2014; Wind Telecomunicazioni S.P.A. v. Italy (dec.), no. 5159/14, § 34, 8 September 2015; and Avotiņš, cited above, § 110 ). The gist of those principles is that the above-mentioned courts are obliged, in accordance with the Cilfit case-law (see paragraphs 39 to 41 above), to state the reasons why they have considered it unnecessary to seek a preliminary ruling; in particular, why they have found that the question is irrelevant, that the EU law provision in question has already been interpreted by the CJEU, or that the correct application of EU law is so obvious as to leave no scope for any reasonable doubt. Whilst the verification of the presence of such reasoning has to be made thoroughly, it is not for the Court to examine any errors that may have been committed by the domestic courts in interpreting or applying the relevant law. 58. Turning to the facts of the present case, the Court notes at the outset that the applicant ’ s case was heard twice by the supreme domestic judicial instance; first in 2009, then in 2013 (see paragraphs 15 and 24 above). In 2009 the alleged conflict between section 80(1) of the 1997 Pensions Act and Article 94(6) of the Regulation, in respect of which the applicant argued before the Court that a reference for a preliminary ruling would have been necessary, was not yet the subject matter of the litigation. That issue was not raised until after the decision of 7 July 2010 of the Central Hungary Regional Pensions Board, which limited the actual payment of the applicant ’ s pension (see paragraph 17 above). The Government argued that, although the applicant had initially requested that a reference for a preliminary ruling be addressed to the CJEU, by that time he had already withdrawn that request (see paragraph 46 above). The applicant contested this argument and submitted that he had maintained his request for a preliminary ruling throughout the proceedings in case the courts did not share his opinion concerning the correct application of the Regulation (see paragraphs 23 and 48 above). 59. The Court considers that it is not necessary to resolve the difference between the parties ’ assertions, because in any event the applicant was required, as per the relevant domestic legislation and case-law (see paragraphs 28 to 31 above) to formulate his petition for review in a self- contained and comprehensive manner, that is to say, to specify the alleged infringement concretely and to set out all of his petitions complete with reasoning, without reference to any previous submissions. The Kúria ’ s jurisdiction was limited to an examination of the issues raised by the petition for review. 60. The Court notes that the applicant did not request, in his petition for review, that the case be referred to the CJEU for a preliminary ruling; nor did he provide any reasons as to why, in his view, the Budapest Labour Court ’ s judgment had violated Article 234 of the EC Treaty (see paragraph 23 above). Under these circumstances, the lack of reasoning in connection with these aspects seems to be in line with the domestic procedural rules. 61. The Court further notes that, as per the CJEU ’ s relevant case-law (see paragraph 41 above), even if the initiative of a party is not necessary for a domestic court against whose decisions there is no judicial remedy under national law to be obliged to bring a question concerning the interpretation or the validity of EU law before the CJEU, it is solely for that court to determine in the light of the particular circumstances of the case the need for a preliminary ruling in order to enable it to deliver judgment. The Court observes that in the present case the Kúria was of the view that the relevant provisions of the 1997 Pensions Act and those of the Regulation did not conflict; it did not consider a preliminary ruling on a question of EU law necessary to give judgment (see paragraph 24 above). 62. In such circumstances the Court does not discern any appearance of arbitrariness in the fact that the Kúria did not refer a question to the CJEU for a preliminary ruling or in its manner of giving reasons for the judgment without elaborating on questions related to a potential reference for a preliminary ruling (see also, mutatis mutandis, Ryon and Others v. France (dec.), nos. 33014/08, 36748/08, 5187/09, 11793/09, 43329/10 and 66405/10, § 32, 15 October 2013). 63. It follows that the second part of the complaint (see paragraph 52 above) is manifestly ill-founded within the meaning of Article 35 § 3 (a) and must be rejected, pursuant to Article 35 § 4 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF THE LENGTH OF THE PROCEEDINGS 64. The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement of Article 6 § 1 of the Convention. 65. The Government contested this view. 66. The period to be taken into consideration began on 7 September 2006, when the applicant lodged his appeal against the decision of the first-instance pension authority concerning his request for a review of his pension rights (see paragraph 9 above ); it was then that a “dispute” within the meaning of Article 6 § 1 arose ( see, mutatis mutandis, König v. Germany, 28 June 1978, § 98, Series A no. 27; Tóth, Magyar and Tóthné v. Hungary, no. 35701/04, § 19, 6 December 2005; Počuča v. Croatia, no. 38550/02, § 30, 29 June 2006; and Kugler v. Austria, no. 65631/01, § 36, 14 October 2010). It ended on 26 June 2013, when the Kúria upheld the judgment of the Budapest Labour Court (see paragraph 24 above). It thus lasted more than six years and nine months at two levels of administration and two levels of court. 67. At this juncture, the Court notes that it cannot share the Government ’ s argument that the proceedings at issue should be considered to have comprised of two distinct parts, one concerning the amount of the applicant ’ s pension (covering the period between 2006 and 29 February 2012) and the other concerning the applicability of section 80(1) of the 1997 Pensions Act (covering the period between 11 November 2010 and 26 June 2013). For the Court, the actual disbursement of the applicant ’ s adjusted pension constituted a question inherently linked to the subject matter of the dispute started in 2006. It further observes that the issues raised by the application of section 80(1) of the 1997 Pensions Act were examined by the domestic courts as part of one and the same proceedings. Therefore, the separate treatment of those issues for the purposes of Article 6 § 1 of the Convention would be artificial and unjustified. 68. In view of such lengthy proceedings, this complaint must be declared admissible. 69. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII). 70. The Court notes that the case was not exceptionally complex, and the applicant did not cause any delays. As regards what was at stake for the applicant, the Government argued that the subject of the dispute had been a difference of HUF 60 ( approximately EUR 0.2 0 ) between what had been awarded by the pension authorities ’ decisions of 7 July 2010 (see paragraph 17 above) and 5 November 2011 (see paragraph 20 above), respectively. For the Court, the amount to be taken into account is rather the difference between the pension as initially fixed on 1 September 2006 and as eventually established on 5 November 2011, that is, a monthly difference of approximately EUR 16. Leaving aside the interim payments disbursed to the applicant, that difference could have added up to a total of approximately EUR 1,300 during that period. Furthermore, the proceedings also concerned the question whether or not the adjusted pension should be paid for the period between 1 May 2004 and 19 March 2005. In this regard, an amount of more than EUR 2,000 (approximately 10. 5 times the monthly difference between the applicant ’ s initial pension of approximately EUR 250 and the eventually established amount of approximately EUR 465) was also arguably at stake. 71. The Court has already held that special diligence is necessary in pension disputes (see, among other authorities, Pejčić v. Serbia, no. 34799/07, § 70, 8 October 2013). In such circumstances, having examined all the material submitted to it and having regard to its case-law on the subject, the Court considers that the length of the proceedings was excessive and failed to meet the “reasonable time” requirement (see, mutatis mutandis, Gazsó v. Hungary, no. 48322/12, § 17, 16 July 2015). There has accordingly been a breach of Article 6 § 1 of the Convention on account of the length of proceedings. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 72. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 73. The applicant claimed EUR 15,000 in respect of non-pecuniary damage. 74. The Government considered this claim excessive. 75. Having regard to its case-law and practice and deciding on an equitable basis, the Court awards the applicant EUR 2,000 in respect of non-pecuniary damage. B. Costs and expenses 76. The applicant also claimed EUR 200 for costs and expenses incurred before the domestic courts and EUR 8, 6 10 for those incurred before the Court. The latter sum corresponds to fifty-three hours of legal work, charged at an hourly rate of EUR 150, and twelve hours of paralegal work, charged at an hourly rate of EUR 50, to be billed by his lawyer. 77. The Government considered those claims excessive. 78. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, having regard to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 500 covering costs under all heads. C. Default interest 79. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court declared the applicant’s complaint regarding the alleged lack of adequate reasoning with respect to a potential reference for a preliminary ruling to the CJEU inadmissible as being manifestly ill-founded. It found in particular that the refusal to refer the case to the CJEU for a preliminary ruling or the lack of reasoning on that issue could not be seen as arbitrary. The applicant had not actually requested for such a reference to the CJEU in the relevant stage of the proceedings. Moreover, the domestic courts expressed their view that the Hungarian provisions and the EU law did not conflict. The Court held, however, that there had been a violation of Article 6 § 1 (right to a fair trial) of the Convention owing to the lengths of proceedings at issue which had been excessive. |
233 | The definition of idem | II. RELEVANT DOMESTIC LAW AND PRACTICE A. The Road Traffic Act 12. Section 5 (1) of the Road Traffic Act 1960 provides that it is an offence for a person to drive a vehicle if the proportion of alcohol in his blood or breath is equal to or higher than 0.8 grams per litre or 0.4 milligrams per litre respectively. 13. Section 99 of the 1960 Act, so far as relevant, provided at the material time, that: “(1) It shall be an administrative offence ( Verwaltungsűbertretung ), punishable with a fine of not less than ATS 8,000 and not more than ATS 50,000 or, in default of payment with one to six weeks ’ imprisonment, for any person: (a) to drive a vehicle when under the influence of drink ... (6) An administrative offence is not committed where: ... (c) facts constituting an offence under sub-sections (2), (2a), (2b), (3) or (4) also constitute an offence falling within the jurisdiction of the [ordinary] courts ... .” 14. In its judgment of 5 December 1996 the Constitutional Court had to examine the constitutionality of section 99 subsection (6)(c) of the Road Traffic Act, by virtue of which the administrative offence of driving under the influence of drink was not subsidiary to an offence falling within the jurisdiction of the courts. The Constitutional Court noted that it was not contrary to Article 4 of Protocol No. 7 if a single act constituted more than one offence. This was a feature common to the criminal law of many European countries. However, it was also accepted in criminal law doctrine that sometimes a single act only appeared to constitute more than one offence, whereas interpretation showed that one offence entirely covered the wrong contained in the other so that there was no need for further punishment. Thus, Article 4 of Protocol No. 7 prohibited the trial and punishment of someone for different offences if interpretation showed that one excluded the application of the other. Where, as in the present case, the law explicitly provided that one offence was not subsidiary to another, it had to be guided by Article 4 of Protocol No. 7. The Court ’ s Gradinger judgment of 23 October 1995 had shown that there was a breach of this Article if an essential aspect of an offence, which had already been tried by the courts, was tried again by the administrative authorities. Section 99 subsections (1)(a) and (6)(c) of the Road Traffic Act, taken together, meant that the criminal administrative offence of drunken driving could be prosecuted even when an offence falling within the competence of the normal criminal courts was also apparent. According to the criminal courts ’ constant case-law under section 81 § 2 of the Criminal Code (cited below), drunken driving was also an essential aspect of certain offences tried by these courts. Insofar as section 99 (6)(c) of the Road Traffic Act limited the subsidiarity of administrative offences to those enumerated in subsections (2) to (4) of section 99, thus excluding subsidiarity for the offence of drunken driving contained in section 99 (1)(a), it violated Article 4 of Protocol No. 7. B. The Criminal Code 15. Under Article 80 of the Criminal Code, it is an offence, punishable by up to one year ’ s imprisonment, to cause death by negligence. Where the special circumstances of Article 81 § 2 apply, the maximum possible sentence is increased to up to three years ’ imprisonment. 16. Article 81 § 2 applies where a person commits the offence “after allowing himself, even if only negligently, to become intoxicated ... through the consumption of alcohol, but not to an extent which excludes his responsibility, notwithstanding that he has foreseen or could have foreseen that he would shortly have to engage in an activity likely to pose ... a danger to the lives ... of others if performed in that state”. By virtue of an irrebuttable presumption applied by the criminal courts, a driver with a blood alcohol level of 0.8 grams per litre or higher is deemed to be “intoxicated” for the purposes of Article 81 § 2. THE LAW I. THE GOVERNMENT ’ S PRELIMINARY OBJECTION 17. The Government contended that the matter has been resolved as the applicant ’ s prison term was reduced by one month (see paragraph 11 above). They argued that a reduction of thirty days ’ imprisonment corresponded to sixty day rates of ATS 150 each and thus could be equated to the fine of ATS 9,000 paid in the administrative criminal proceedings. 18. The applicant objected, arguing that the reduction of sentence cannot dispel the fact that he has been tried and convicted twice of driving under the influence of drink. Moreover, it was the practice of the criminal courts to impose unconditional prison terms when the special circumstances of Article 81 § 2 of the Criminal Code applied whereas, in cases of causing death by negligence without this special circumstance, the courts regularly only imposed prison terms suspended on probation, or fines. 19. The Court considers that the parties ’ arguments are closely linked to the well- foundedness of the applicant ’ s complaint and will, therefore, join the Government ’ s preliminary plea to the merits. II. ALLEGED VIOLATION OF ARTICLE 4 OF PROTOCOL NO. 7 TO THE CONVENTION 20. The applicant alleged a violation of Article 4 of Protocol No. 7 which, so far as relevant provides as follows: “1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.” The applicant contended that he was punished twice for driving under the influence of drink, first by the District Administrative Authority under sections 5 (1) and 99 (1)(a) of the Road Traffic Act and, secondly, by the Regional Court, which found that the special circumstance of section 81 § 2 of the Criminal Code applied. In the applicant ’ s view, the conviction by the criminal courts in its entirety, or at least the fact that the conviction was not limited to Article 80 of the Criminal Code, but also extended to Article 81 § 2, infringed Article 4 of Protocol No. 7. The applicant maintained that the present case was not comparable to the Oliveira v. Switzerland case (judgment of 30 July 1998, Reports of Judgments and Decisions 1998-V) as in that case the criminal courts had quashed the fine imposed by the police magistrate and stated that, if the fine had already been paid, it was to be deducted from the second fine. However, in his case two sentences were actually imposed. 21. The Government asserted that the Court, in its Gradinger judgment took the “same conduct” as the criterion for determining the “offence” within the meaning of Article 4 of Protocol No. 7. In its Oliveira judgment, however, the Court adopted a different approach by taking the legal qualification of the underlying facts as the criterion for establishing the identity of the “offence” without taking account of the overlapping factual elements of the case. In the Government ’ s view, the present application, like the Oliveira case, concerns a typical example of a single act constituting various offences, i.e. a case where one criminal act constitutes two separate offences, namely driving under the influence of drink and causing death by negligence in the special circumstances of Article 81 § 2 of the Criminal Code. The Government accepted that the present case differed from the Oliveira case in that, under Swiss law, both offences should have been tried by the same authority, and the lesser penalty was absorbed by the greater. However, none of these aspects was considered to be decisive. Finally, unlike the Gradinger case, the authorities in the present application did not come to a different assessment of the facts. In sum, there has been no breach of Article 4 of Protocol No. 7. 22. The Court recalls that the aim of Article 4 of Protocol No. 7 is to prohibit the repetition of criminal proceedings that have been concluded by a final decision (see the Gradinger judgment cited above, p. 65, § 53). 23. As the Government pointed out, the Court ’ s approach in the Gradinger and Oliveira judgments in order to determine whether the respective applicants were tried or punished again “for an offence for which [they had] already been finally acquitted or convicted” appears somewhat contradictory. The Court recalls that in each case two sets of proceedings arose out of one traffic accident. In the Gradinger case, the applicant was first convicted by the criminal courts for causing death by negligence, but acquitted of the special element under Article 81 § 2 of “allowing himself to become intoxicated”, where there was an irrebuttable presumption of intoxication with a blood alcohol level of 0.8 grams per litre. He was then convicted by the administrative authorities of driving “a vehicle under the influence of drink” contrary to sections 5 (1) and 99 (1)(a) of the Road Traffic Act, where the influence of drink is deemed present with a blood alcohol level of 0.8 grams per litre. In the Oliveira case, the applicant was first convicted by the police magistrate for failing to control her vehicle as she had not adapted her speed to the road conditions. Subsequently, she was convicted by the criminal courts of causing physical injury by negligence. 24. In the Gradinger case the Court, while emphasising that the offences at issue differed in nature and aim, found a violation of Article 4 of Protocol No. 7 as both decisions were based on the same conduct (ibid., §§ 54-55). In the Oliveira case it found no violation of this provision, considering that it presented a typical example of a single act constituting various offences ( concours idéal d ’ infractions ) which did not infringe Article 4 of Protocol No. 7, since that provision only prohibited people being tried twice for the same offence (see the Oliveira judgment, previously cited, p. 1998, § 26). 25. The Court observes that the wording of Article 4 of Protocol No. 7 does not refer to “the same offence” but rather to trial and punishment “again” for an offence for which the applicant has already been finally acquitted or convicted. Thus, while it is true that the mere fact that a single act constitutes more than one offence is not contrary to this Article, the Court must not limit itself to finding that an applicant was, on the basis of one act, tried or punished for nominally different offences. The Court, like the Austrian Constitutional Court, notes that there are cases where one act, at first sight, appears to constitute more than one offence, whereas a closer examination shows that only one offence should be prosecuted because it encompasses all the wrongs contained in the others (see paragraph 14 above). An obvious example would be an act which constitutes two offences, one of which contains precisely the same elements as the other plus an additional one. There may be other cases where the offences only slightly overlap. Thus, where different offences based on one act are prosecuted consecutively, one after the final decision of the other, the Court has to examine whether or not such offences have the same essential elements. 26. This view is supported by the decision in the case of Ponsetti and Chesnel v. France (nos. 36855/97 and 41731/98 ECHR 1999 ‑ VI, [14.9.99]), relating to separate convictions for two tax offences arising out of the failure to submit a tax declaration, where the respondent Government also argued that this was an example of one act constituting more than one offence. Nevertheless, the Court examined whether the offences in question differed in their essential elements. 27. It can also be argued that this is what distinguishes the Gradinger case from the Oliveira case. In the Gradinger case the essential elements of the administrative offence of drunken driving did not differ from those constituting the special circumstances of Article 81 § 2 of the Criminal Code, namely driving a vehicle while having a blood alcohol level of 0.8 grams per litre or more. However, there was no such obvious overlap of the essential elements of the offences at issue in the Oliveira case. 28. In the present case, the applicant was first convicted by the administrative authority for drunken driving under sections 5 (1) and 99 (1)(a) of the Road Traffic Act. In subsequent criminal proceedings he was convicted of causing death by negligence with the special element under Article 81 § 2 of the Criminal Code of “allowing himself to become intoxicated”. The Court notes that there are two differences between the Gradinger case and the present: the proceedings were conducted in reverse order and there was no inconsistency between the factual assessment of the administrative authority and the criminal courts, as both found that the applicant had a blood alcohol level above 0.8 grams per litre. 29. However, the Court considers that these differences are not decisive. As said above, the question whether or not the non bis in idem principle is violated concerns the relationship between the two offences at issue and can, therefore, not depend on the order in which the respective proceedings are conducted. As regards the fact that Mr Gradinger was acquitted of the special element under Article 81 § 2 of the Criminal Code but convicted of drunken driving, whereas the present applicant was convicted of both offences, the Court repeats that Article 4 of Protocol No. 7 is not confined to the right not to be punished twice but extends to the right not to be tried twice. What is decisive in the present case is that, on the basis of one act, the applicant was tried and punished twice, since the administrative offence of drunken driving under sections 5 (1) and 99 (1)(a) of the Road Traffic Act, and the special circumstances under Article 81 § 2 of the Criminal Code, as interpreted by the courts, do not differ in their essential elements. 30. The Court is not convinced by the Government ’ s argument that the case was resolved due to the reduction of the applicant ’ s prison term by one month, being equivalent to the fine paid in the administrative proceedings. The reduction of the prison term by virtue of the Federal President ’ s prerogative of pardons cannot alter the above finding that the applicant was tried twice for essentially the same offence, and the fact that both his convictions stand. The Court therefore rejects the Government ’ s preliminary objection based on the same argument. 31. Finally, the Court observes that, in a case like the present, the Contracting State remains free to regulate which of the two offences shall be prosecuted. It further notes that the legal situation in Austria has changed following the Constitutional Court ’ s judgment of 5 December 1996, so that nowadays the administrative offence of drunken driving under sections 5 (1) and 99 (1)(a) of the Road Traffic Act will not be pursued if the facts also reveal the special elements of the offence under Article 81 § 2 of the Criminal Code. However, at the material time, the applicant was tried and punished for both offences containing the same essential elements. 32. There has, thus, been a violation of Article 4 of Protocol No. 7. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 33. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 34. The applicant claimed ATS 100,000 for non-pecuniary damage arguing that, without the special circumstances of Article 81 § 2 of the Criminal Code, he would not have been sentenced to an unconditional term of imprisonment. 35. The Government objected, stating that there is no causal link between the applicant ’ s imprisonment and the alleged breach of Article 4 of Protocol No. 7, as the alleged breach could equally have been avoided by making the administrative offence subsidiary to the offence falling within the competence of the criminal courts. They pointed out that this has been the legal situation pertaining since the Constitutional Court ’ s judgment of 5 December1996. 36. The Court agrees that there is no causal link between the violation found and the damage claimed by the applicant. Moreover, it considers that the finding of a violation constitutes in itself sufficient just satisfaction as regards any non-pecuniary damage the applicant may have sustained. Thus, it makes no award under this head. B. Costs and expenses 37. The applicant claimed ATS 43,532 for the costs incurred in the domestic proceedings and ATS 25,110 for the costs incurred in the Convention proceedings. Further, arguing that if the Court found a violation of Article 4 of Protocol No. 7 the proceedings before the criminal courts would have to be reopened, he requested ATS 15,000 for these future proceedings. 38. The Government accepted the applicant ’ s costs claim for the domestic and Convention proceedings. However, they objected to the claim for the costs of possible future proceedings. 39. The Court, having regard to the Government ’ s position, awards the costs incurred in the domestic and Convention proceedings in full, thus granting the applicant ATS 68,642 under this head. It cannot, however, award costs which the applicant has not yet incurred. C. Default interest 40. According to the information available to the Court, the statutory rate of interest applicable in Austria at the date of adoption of the present judgment is 4% per annum. | In this case the Court reiterated that the mere fact that a single act constituted more than one offence was not contrary to Article 4 of Protocol No. 7. However, there are cases where one act appears at first sight to constitute more than one offence, but closer examination shows that only one offence should be prosecuted because it encompasses all the wrongs contained in the others. Thus, where different offences based on one act are prosecuted consecutively, the Court has to examine whether or not such offences have the same essential elements. The question whether or not the non bis in idem principle is violated concerns the relationship between the two offences at issue and does not depend on the order in which the respective proceedings are conducted. In the present case, the Court noted that the applicant had been tried and punished twice on the basis of one act, since the administrative offence of drunken driving and the special circumstances applying under the Criminal Code did not differ in their essential elements. Moreover, the Court was not convinced that the case had been resolved by the reduction of the prison sentence by one month, since that reduction could not alter the fact that the applicant had been tried twice for essentially the same offence and the fact that both convictions stood. The Court therefore held that there had been a violation of Article 4 of Protocol No. 7 in respect of the applicant. |
188 | State’s duty to protect physical and psychological integrity of individuals | RELEVANT LEGAL FRAMEWORK Relevant domestic lawThe Criminal Code (2002) The Criminal Code (2002) The Criminal Code (2002) 47. Article 125 of the Code, in so far as relevant, reads as follows: Article 125. Intentional minor physical injury “ 1. Intentional minor physical injury shall be punishable by a fine of up to fifty times the non-taxable minimum income for citizens, or up to two hundred hours of community service, or correctional labour for up to one year. ...” The Code of Administrative Offences (1984) 48. The relevant provision of the Code, Article 173-2, as worded at the material time, read as follows: Article 173-2. Act of domestic violence, failure to abide by a restraining order or evasion of a correctional programme “The commission of an act of domestic violence, that is, the intentional commission of any acts of a physical, psychological or economic nature (the use of physical force which does not result in physical pain and does not cause physical injuries; threats; insults; stalking; depriving a victim of his or her dwelling, food, clothes, other effects or funds to which he or she is entitled by law; and so on) which results in or could result in harm being caused to the victim ’ s physical or psychological health, as well as a person ’ s failure to abide by a restraining order issued in respect of him or her, [and] a person ’ s evasion of a correctional programme where that person has committed an act of domestic violence shall be punishable by thirty to forty hours of community service, or administrative detention for up to seven days. ...” The Housing Code (1983) 49. Article 116 of the Code, in so far as relevant, reads as follows: Article 116. Eviction without the provision ... of another dwelling “If the tenant, members of his or her family, or others living with him or her ... systematically ... break the rules on ... living together, making it impossible for the other [people in the dwelling] to live with them in the same flat or house, and if measures of pre-emption and measures involving public pressure have not produced any positive result, those responsible shall be evicted at the request of ... interested persons, without another dwelling being provided for them. ...” Law of Ukraine “On the prevention and combatting domestic violence” (no. № 2229-VIII of 7 December 2017; “The Domestic Violence Act”) 50. The Domestic Violence Act of 2017 entered into force on 7 January 2018, having replaced the preceding Law “ On the prevention of family violence ” (2001). According to Section 5 of the Act, the objectives of the State policy on prevention and combatting domestic violence were defined as follows: “ 1. State policy in the sphere of prevention and combatting domestic violence shall aim to ensure a comprehensive integrated approach towards eradication of domestic violence, provision of comprehensive assistance to the victims and affirmation of non-violent character of private relations. 2. Main directions of the realisation of the State policy for prevention and combatting domestic violence shall be as follows: 1) prevention of domestic violence; 2) effective response to the incidents of domestic violence by way of development of the mechanism of interaction between the authorities exercising power in the sphere of prevention and combatting of the domestic violence; 3) provision of assistance and protection to the victims, ensuring compensation of damage suffered as a result of domestic violence; 4) proper investigation of the incidents of domestic violence, imposition of liability on offenders in accordance with the law and the modification of their conduct.” 51. The Act provided, inter alia, for the creation of a Unified State Register of the incidents of domestic and gender-based violence (Section 16) and stipulated a series of “special measures on combatting domestic violence” for addressing victims ’ complaints. These measures included, in particular, urgent injunctive police order; restraining court order; placement of the offender on the preventive measures record; and placement of the offender into the special corrective programme (Sections 24 – 28). Resolution no. 2 of 12 April 1985 of the Plenary Supreme Court of Ukraine on issues arising in the courts ’ implementation of the Housing Code of Ukraine 52. The Resolution, in so far as relevant, reads as follows: “17. When resolving cases [brought] under Article 116 of the [Housing Code] concerning the eviction of persons who systematically breach the rules on living together and make it impossible for others to live with them in one flat or house, it should be taken into account that where the person in question is guilty of persistent antisocial conduct, the eviction may take place, for instance, after a repeated breach, if pre-emptive measures ( попередження ) or measures involving public pressure have not brought about a positive result. [The measures to take into consideration include]..., in particular, pre-emptive measures applied by the courts, prosecutors, law-enforcement bodies [or] administrative commissions of executive committees, as well as measures involving public pressure applied at the meetings of residents of the apartment block or members of the housing cooperative, ... and [those applied] by other public organisations [operating] at the respondent ’ s place of employment or residence (regardless of whether an express warning has been given concerning a possible eviction). ...” Relevant domestic case-law concerning restraining ordersRuling of the Supreme Court of Ukraine of 4 December 2019 in case no. 607/10122/19 Ruling of the Supreme Court of Ukraine of 4 December 2019 in case no. 607/10122/19 Ruling of the Supreme Court of Ukraine of 4 December 2019 in case no. 607/10122/19 53. In its ruling in the aforementioned case, the Supreme Court noted, in particular, as follows: “In April 2019 [the complainant] instituted proceedings seeking a restraining order on [her former husband]. ... [She] noted that [the respondent] had been subjecting her and their minor child to psychological [and] physical violence manifested through constant threats, intimidation, harassment, application of physical force, as well as interference with their use of [the room in the accommodation hall, in which the three of them resided]. ... [the complainant] requested to issue a restraining order in respect of [the respondent] for the period of six months ... in particular, by enjoining him from interfering with the use of the room [by herself and her minor son] and prohibiting him from accessing [or residing in] ... the aforementioned room. ... When resolving such applications, the courts should comprehensively evaluate all the circumstances and evidence in the case, giving due deference to the rights and interests of the children and the parents, as well as ensuring that no unjustified restriction of the rights of one parent concerning the children takes place in the event that the demands of the other parent are not grounded and not justified. ... In the case at issue it has been established that [the complainant] and [the respondent] are in hostile relations; conflictual situations often arise concerning residence in and the use of the room in the accommodation hall ... [The respondent] stated that he had no intention to let his former spouse ... and their minor son use the room ... Having established these circumstances, the first-instance court, with whose conclusions the court of appeal agreed, had correctly concluded that there are lawful grounds for issuing a restraining order obliging [the respondent] to cease interfering with the complainant ’ s and her minor son ’ s use of the dwelling, as well as household items located therein. Likewise, the lower courts had correctly concluded that there were no grounds for ... prohibiting [the respondent] from accessing [or residing in] the room ..., as [the complainant] had not provided unequivocal proof that [the respondent] had committed domestic violence ...” Ruling of the Supreme Court of Ukraine of 28 April 2020 in case no. 754/11171/19 54. In its ruling in the aforementioned case, the Supreme Court noted, in particular, as follows: “In July 2019 [the complainant] instituted proceedings seeking a restraining order in respect of [her former husband] and alleging that the latter had systematically subjected her and their children to violence and intimidation. Those acts manifested through assaults including physical, psychological and sexual violence. ... ... When deciding on the application of such a measure, the courts ... must assess proportionality of the interference with the rights and freedoms of the individual, taking into consideration that those measures are triggered by the unlawful conduct of [the offender]. Therefore, the conclusion of [the lower courts] that it is not possible to allow the victim ’ s request concerning ... temporary restriction of the right [of the respondent] to [use] the flat of which he is a co-owner ... is erroneous, since it deprives the complainant of the guarantees ... provided by the [Domestic Violence Act]. In the case at issue the [lower] courts ... have concluded that there is high risk of [repeated violence] ... In these circumstances, the judicial panel ... considers that demands of [the complainant] ... to enjoin [the respondent] from staying in the ... flat ... [and] approaching closer than two kilometres to [the flat] should be allowed. ...” Relevant international material 55. A summary of the relevant international material can be found in the case of Volodina v. Russia, no. 41261/17, §§ 51-60, 9 July 2019). 56. In its Recommendation Rec(2002)5 of 30 April 2002 on the protection of women against violence, the Committee of Ministers of the Council of Europe stated, inter alia, that member States should introduce, develop and/or improve where necessary, national policies against violence based on: the maximum safety and protection of victims, support and assistance, adjustment of the criminal and civil law, the raising of public awareness, training for professionals confronted with violence against women, and prevention. 57. With regard to violence within the family, the Committee of Ministers recommended that member States should classify all forms of violence within the family as criminal offences and provide for the possibility to take measures in order to, inter alia : enable the judiciary to adopt interim measures aimed at protecting victims; ban the perpetrator from contacting, communicating with or approaching the victim, or residing in or entering defined areas; penalise all breaches of the measures imposed on the perpetrator; and establish a compulsory operating protocol for the police and medical and social services. Material relating to violence against women in Ukraine 58. The Council of Europe Convention on preventing and combating violence against women and domestic violence (the Istanbul Convention) was signed by Ukraine on 7 November 2011 and has not yet been ratified. On 14 November 2017 Mr N. Muiznieks, the Council of Europe Commissioner for Human Rights, addressed a letter Mr A. Parubiy, the Speaker of the Ukrainian Parliament, inviting him to facilitate the process of the ratification of the Istanbul Convention. The letter read, in particular, as follows: “During my country visits, I have encountered several objections and/or misconceptions about the Convention. Those arguments could be summarised - and countered - as follows : - Objections to the use of the word" gender" for its purported" ideological" connotations. The notion of gender is clearly defined in the Convention, which holds that, while the term" sex" refers to the biological characteristics that define humans as female and male, gender" shall mean the socially constructed roles, behaviours, activities and attributes that a society considers appropriate for women and men ." This definition is also used by the Committee on the Elimination of Discrimination against Women and other UN bodies. This meaning also enters into play in the term" gender stereotypes ". - Some critics acknowledge that violence against women is a problem, but wish to prevent governments from challenging traditional gender roles and stereotypes, due to a cultural affirmation that men and women should play very different roles in public life and within the family. This approach limits women to the stereotypical role of mothers, giving birth and staying at home to rear children. - Others go as far as to argue that the Istanbul Convention should not be ratified because it would endanger societies based on traditional families. I would like to reassure everybody that there is no such danger, as all the measures provided for by the Istanbul Convention reinforce family foundations and links by preventing and combating the main cause of destruction of families, that is, violence. - Another criticism of the Convention concerns its supposedly" unjustified" focus on women, whereas men can also be victims of violence. However, data collected in various CoE member states - including Ukraine - do show that, in the vast majority of cases of domestic violence, it is women who are exposed to violence inflicted by men. More generally, numerous studies show that women and girls are exposed to a higher risk of gender-based violence than men, and that violence specifically targeted at women remains widespread. That being said, the Istanbul Convention recognises that men and children are victims of domestic violence too and that this should also be addressed. The Istanbul Convention aims at eradicating violence against women and domestic violence by prescribing the establishment of a comprehensive system to combat those phenomena effectively. Individual victims, families and society as a whole will all benefit if everyone ’ s fundamental rights to life, security, freedom, dignity, and physical and emotional integrity are respected. I would be grateful if you bring my letter to the attention of all members of the Ukrainian Parliament and I look forward to receiving further information on the ratification process ”. 59. In March 2017, in its concluding observations on the eighth periodic report of Ukraine, the UN Committee on the Elimination of Discrimination against Women (CEDAW), noted, in particular, as follows: “26. The Committee remains concerned at the persistence in political discourse, the media and in society of deep-rooted patriarchal attitudes and discriminatory stereotypes concerning the roles and responsibilities of women and men in the family, which perpetuate women ’ s subordination within the family and society and which are reflected, inter alia, in women ’ s educational and professional choices, their limited participation in political and public life, their unequal participation in the labour market and their unequal status in family relations. The Committee recalls that such discriminatory stereotypes are also root causes of violence against women and expresses concern that, to date, the State party has not taken sustained measures to modify or eliminate discriminatory stereotypes and negative traditional attitudes. ... 29. Recalling its general recommendation No. 19 (1992) on violence against women, the Committee recommends that the State party: (a) ... accelerate the ratification of the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence [the Istanbul Convention]; (b) Take comprehensive measures to prevent and address violence against women and girls and ensure that perpetrators are prosecuted and adequately punished; ...” 60. According to the OSCE -led survey on violence against women in Ukraine (2018), most interviewed women were concerned about the issue, with 64% saying it was a common occurrence. Some of the key conclusions and recommendations of the Survey were as follows: “ ...There is a high prevalence of VAW (violence against women), but women are reluctant to report it or to seek help. More than a quarter of women (26%) in Ukraine have experienced physical and/or sexual violence at the hands of a current or previous partner. Two-thirds of women (65%) have experienced intimate partner psychological violence, which is much higher than the EU average of 43% and higher than in any EU country. However, only 7% of women survivors of current partner violence and 12% of survivors of previous partner violence reported their experiences to the police. Considering that 52% of women survivors of intimate partner violence suffered physical consequences as a result of their most serious incident of violence, it is likely that other serious violence is underreported. Women in the qualitative research said that psychological violence is seen as normal, with 26% of women also believing that domestic violence is a private matter. The experts interviewed for this report said that there is a collective tolerance of violence, and women in the survey shared that feelings of shame represent barriers to reporting. In relation to current partner violence, more than four-fifths of women (81%) who identified a most serious incident did not contact the police or any other organization, and the same is true of 67% of women in respect of previous partner violence and of 52% concerning non-partner violence”. 61. The U.K. ’ s Home Office ’ s Country Policy and Information Note on Ukraine concerning gender-based violence (May, 2018) featured, in particular, the following information: “4.2.3. ... Kateryna Levchenko, President of the NGO “La Strada – Ukraine,” presented the statistical data collected from the survey of police and prosecutors, analysis of court decisions on cases of violence against women and domestic violence. 10% of prosecutors, 11% of judges, 12% of police officers justify some cases of family violence. 39% of officers in the criminal justice system consider domestic violence to be a private matter, 60% blame sexual violence on its victims. During judicial proceedings of domestic violence cases 77% of prosecutors, 81% of police officers and 84% of judges consider reconciliation [between] partners and family preservation to be the ... top priority, with violence being underestimated and considered a minor dispute. Courts often consider the cases of violence from a formal point of view. The monitoring of 77 hearings revealed that the average duration of meetings is 4 to 23 minutes. Offenders do not appear in courts. Only every 6th abuser appeared in court. This often results in cancelling the hearings. ...” THE LAW ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 62. The applicant complained that the domestic courts ’ refusal to order O.L. ’ s eviction had exposed her and her children to continuing risk of harassment and violence. She invoked Article 8 of the Convention, which, in so far as relevant, reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. ...” Admissibility 63. The Government raised no objections concerning the admissibility of the present complaint. 64. The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. MeritsSubmissions by the parties Submissions by the parties Submissions by the parties (a) The applicant (i) Information concerning gender-based violence in Ukraine 65. The applicant submitted that the problem of domestic violence was rampant in Ukrainian society, which displayed a high tolerance for this phenomenon. 66. She noted that according to the 2014 survey conducted by GfK analytics at the request of the United Nations Population Fund (UNFPA), one in five Ukrainian women aged fifteen to forty-nine (19%) experienced physical violence since she turned fifteen years old. Around a half of physical violence victims – 9% - experienced physical violence at least once during the last twelve months preceding the survey. 67. According to the National police press centre, in 2018 the Ukrainian police received 89.5 thousand domestic violence complaints from women. 68. According to the Unified State Register of court judgments, between January and August 2019 court rulings were passed in fifty-eight criminal cases concerning domestic violence. In twenty-three out of these cases, the courts approved a reconciliation agreement between the victim and the accused. In the thirty-five remaining cases, the courts ruled on the merits, imposing the following punishments: imprisonment (two cases); release on probation (five cases); restriction of liberty or short-term detention (seven cases); and public works (twenty cases). In practice, in vast majority of the cases a perpetrator was let to “serve his sentence” at home, where he had a possibility of close contact with the victim, who remained at risk of further violence. (ii) Submissions concerning the applicant ’ s personal situation 69. The applicant submitted that she herself had endured drunken scenes and violent outbursts from O.L. for many years before deciding to seek his eviction, and only after warnings and other measures taken by the authorities in response to individual incidents had not brought about tangible results. She submitted that on some occasions she had withdrawn her complaints against O.L. under pressure; the authorities had not wanted to investigate them and had persuaded her that it was in her own best interests to reconcile with her former husband and close the case. 70. However, as the violent incidents had persisted, eventually the applicant had been forced to apply for O.L. ’ s eviction, as this had been the only effective way to protect the safety and rights of herself and her children. The applicant argued that, in her case, the national courts had failed to strike a fair balance between her and her children ’ s interests on the one side and those of her ex-husband on the other. In particular, the courts had taken an excessively formalistic approach in determining whether O.L. ’ s misconduct had been systematic and in discounting the importance of warnings and other measures issued by the authorities to address his violent outbursts. Likewise, they had not taken into account the fact that O.L. had co-owned another residence and that she was a disabled woman and a single mother having sole custody of four children. The applicant emphasised that the disputed flat had in fact been provided by the municipal authorities for the benefit of the children in the first place and the children ’ s interest to grow in a safe and secure environment was paramount in her case. 71. The applicant next noted that she was thankful to the municipal authorities for giving her and the children an opportunity to become owners of the disputed flat in 2019. However, she had not willingly consented to sharing ownership with O.L. As her eviction claim had not been allowed and he had remained a lawful resident of the flat, under the law, there had been no way to obtain ownership of the flat without his participation. 72. The applicant also submitted that it had taken her some two years to argue her eviction claim before the national courts. The eventual dismissal of that claim after such a significant effort on her part had given O.L. a sense of total impunity, and had exposed her and the children to an even greater risk of repeated psychological harassment and the threat of physical assaults. In this regard, the applicant noted that she had eventually been forced to file a fresh criminal complaint against him and to initiate proceedings for depriving him of parental authority. These proceedings were ongoing at the time when she submitted her observations. (b) The Government 73. The Government alleged that there had been no breach of the positive duty under Article 8 in respect of the applicant. They considered that the domestic authorities had taken all necessary measures to protect her and her children from domestic violence. 74. In particular, the police and social services had responded promptly to her complaints about O.L. ’ s violent outbursts by instituting proceedings, issuing warnings, and offering counseling support. The Government observed that the applicant herself had not complained to the Court about the response of those authorities to her domestic violence allegations, which fact, in their view, implied her acknowledgment that that response had indeed been effective. Moreover, the applicant herself had repeatedly requested to relieve O.L. of liability, withdrew her complaints, and rejected an offer of psychological counseling, thus preventing the competent authorities from exercising their restraining powers. 75. In any event, even assuming that, notwithstanding the above, there was also a positive obligation on the State to put in place a civil remedy, this obligation had been properly discharged. Article 116 of the Housing Code, under which the applicant had lodged her eviction claim against O.L., had, in principle, been an appropriate legal remedy in her case. The applicant had not prevailed in the domestic proceedings because she had not made out her case on the facts. In particular, she had not demonstrated that O.L. had been guilty of persistent and irremediable misconduct of such a severity, that sharing a flat with him had been impossible for her. She had therefore not fulfilled the conditions established by law for setting the eviction mechanism in motion and the Court of Appeal had correctly balanced the applicant ’ s interest in evicting O.L. against his interest in continuing to reside in his home. 76. The Government also noted that after the end of the eviction proceedings, the applicant, O.L. and their children had lodged a joint request with the municipality to be awarded ownership of the disputed flat. In their view, the applicant ’ s and O.L. ’ s cooperation in that matter had demonstrated a further proof that their living together had not been objectively intolerable. The Court ’ s assessment 77. The Court notes at the outset that, as observed by the Government, the applicant in the present case does not complain about the quality of the general response of the national authorities to her domestic violence complaints. She complains only that the domestic courts refused to order the eviction of her former husband, alleging that this refusal exposed her and her minor children to the risk of further victimisation by him (compare and contrast B. v. the Republic of Moldova, no. 61382/09, §§ 31 and 62, 16 July 2013). The Court is therefore not called upon in the present case to examine the quality of the applicable legislative and administrative framework in general. It will essentially focus on the response of the civil courts to the applicant ’ s eviction claim, albeit against a background of successive domestic violence complaints whose existence is not in dispute. 78. The Court reiterates that the issue of domestic violence, which can take various forms – ranging from physical assault to sexual, economic, emotional or verbal abuse – transcends the circumstances of an individual case. It is a general problem which affects, to a varying degree, all member States, and which does not always surface, since it often takes place within personal relationships or closed circuits ( Volodina, cited above, § 71 ). While this phenomenon may most frequently affect women, the Court acknowledges that men may also be the victims of domestic violence and, indeed, that children, too, are often its casualties, whether directly or indirectly. Accordingly, the Court will bear in mind the gravity of the problem at issue when examining the present case (see Opuz v. Turkey, no. 33401/02, § 132, ECHR 2009). 79. In various cases, depending on the individual circumstances of those cases, the Court has previously taken up the issue of domestic violence under Articles 2, 3, 8 and 14 of the Convention (see, in particular, Talpis v. Italy, no. 41237/14, § 100, 2 March 2017). In all those cases, the Court has established that the authorities have a positive obligation under the Convention to put in place and apply an adequate legal framework affording effective protection against acts of domestic violence (see, among other authorities, Bevacqua and S. v. Bulgaria, no. 71127/01, § 65, 12 June 2008; A. v. Croatia, no. 5 5164/08, § 60, 14 October 2010; and Hajduová v. Slovakia, no. 2660/03, § 46, 30 November 2010 ). 80. In this connection, the Court has held, in particular, that where an individual makes a credible assertion of having been subjected to repeated acts of domestic violence, however trivial the isolated incidents might be, it falls on the domestic authorities to assess the situation in its entirety, including the risk that similar incidents would continue (see, mutatis mutandis, Irina Smirnova v. Ukraine, no. 1870/05, §§ 71 and 89, 13 October 2016 ). Among other things, this assessment should take due account of the particular vulnerability of victims – who are often dependent on their assailants emotionally, economically, or otherwise – and the psychological effect that the risk of repeated harassment, intimidation and violence may have on their everyday life (see, mutatis mutandis, Hajduová, cited above, § 46 and Irina Smirnova, ibid.). Where it is established that a particular individual has been systematically targeted and future abuse is likely to follow, apart from responses to specific incidents, the authorities may be called upon to implement an appropriate action of a general nature to combat the underlying problem and prevent future ill-treatment (see Đorđević v. Croatia, no. 41526/10, §§ 92-93 and 147-49, ECHR 2012; and Irina Smirnova, cited above, ibid.). 81. The applicant in the present case made credible assertions that over a prolonged period of time she had been exposed to physical assaults, intimidation and threats from O.L., her former husband, with whom she still shares a flat. These events affected her physical and mental integrity, and they therefore pertain to the sphere of private life within the meaning of Article 8 of the Convention (compare to Hajduová, cited above, § 49; Eremia v. the Republic of Moldova, no. 3564/11, § 73, 28 May 2013; and B. v. Moldova, cited above, § 71 ). They likewise affected her right to the enjoyment of a home free from violent disturbance also protected under Article 8 (see, in particular, Kalucza v. Hungary, no. 57693/10, § 59, 24 April 2012 ). 82. The Court takes note of the fact that the authorities, which were well aware of the situation, intervened in individual incidents on a number of occasions. It further observes that the applicant, who considered that those measures had not resolved the situation, lodged a civil action under Article 116 of the Housing Code, which provides for the possibility to evict tenants in social housing for systematic misconduct. Regard being had to the particular facts of the present case, the wording of Article 116, and the Government ’ s explanations, the Court considers that this civil remedy was capable, in principle, of redressing the essence of the applicant ’ s complaint, although it is not apparent that, unlike a restraining order, it could be effective as a matter of urgency (compare and contrast Irina Smirnova, cited above, §§ 95-99 ). 83. The Court also notes that the Rivne Town Court, which examined the applicant ’ s claim at first instance, did in fact rule in her favour. Subsequently, the above ruling was reversed in appeal proceedings, essentially on the basis that O.L. ’ s eviction would constitute a disproportionate interference with his right to respect for his home (see paragraph 37 above). The main issue for the Court in the present case is therefore determining whether this ruling achieved a fair balance between the competing interests at stake (see, mutatis mutandis, Pfeifer v. Austria, no. 12556/03, § 38, 15 November 2007, and B. v. Moldova, cited above, § 73). At this juncture, the Court reiterates that it is primarily for the national courts to resolve problems of interpretation of domestic legislation, and the Court is not in a position to take their place in this matter (see Söderman, Söderman v. Sweden [GC], no. 5786/08, § 102, ECHR 2013, and Bălşan v. Romania, no. 49645/09, § 67, 23 May 2017 ). However, while granting substantial deference to the national courts in the choice of appropriate measures, the Court is obliged to review their conclusions from the viewpoint of the Convention (see, mutatis mutandis, Valiulienė v. Lithuania, no. 33234/07, § 76, 26 March 2013 ). 84. The Court has earlier indicated in its case law that eviction is the most extreme measure of interference with one ’ s right to respect for the home guaranteed by Article 8 of the Convention (see, among other authorities, Kryvitska and Kryvitskyy v. Ukraine, no. 30856/03, § 41, 2 December 2010 ). However, it has also stated that interference by the national authorities with individual rights under Article 8 might be necessary in order to protect the health and rights of the others (see, among other authorities, mutatis mutandis, Opuz, cited above, § 144; Eremia, cited above, § 52; and Volodina, cited above, § 86). Moreover, in context of Article 2 the Court has noted that, in domestic violence cases, perpetrators ’ rights cannot supersede victims ’ human rights, in particular, to physical and mental integrity (see, mutatis mutandis, Opuz, cited above, § 147, and Talpis, cited above, § 123). 85. Regard being had to the Government ’ s argument that Article 116 of the Housing Code constituted, in principle, an effective remedy for the applicant ’ s complaint, in the present case, from the perspective of the Convention, the national courts, confronted with the applicant ’ s assertions that O.L. had recurrently engaged in violent outbursts during household arguments, were bound, in the context of the eviction proceedings lodged under the aforementioned provision, to assess the credibility of her statements and the risk of future violence, in the event that the parties remained living under the same roof. It is not apparent from the material before the Court that a comprehensive assessment of those elements had been performed either by the Court of Appeal or the Supreme Court. 86. In particular, as appears from the Court of Appeal ’ s ruling, it acknowledged that certain misconduct had indeed taken place and even found it appropriate to “warn [O.L.] that he needs to change his attitude ...” (see paragraph 39 above). However, although criminal and administrative proceedings had been instituted against O.L. on account of physical assaults against the applicant and although the police authorities had conducted “pre-emptive conversations” with him and issued him “warnings” on a number of occasions, the court seized of the eviction request found that “it had not been demonstrated that [O.L. had] systematically breached the rules on living together” (see paragraph 39 above; compare to B. v. Moldova, cited above, § 74). The Court reiterates at this point that where the domestic authorities are confronted with credible domestic violence assertions, it falls on them to assess the situation in its entirety including the risk of future violence. As transpires from the reports of the social workers and the police, O.L. repeatedly evaded their efforts to discuss the situation with him in an attempt to find an appropriate solution and prevent the risk of further violent outbursts (see paragraphs 2 6 and 28 above). It is not apparent that the Court of Appeal took this into account and attempted to analyse whether there had been risk of recurrent violence. 87. It essentially referred to the fact that O.L. had never been subjected to a formal penalty, without attempting to analyse the underlying reasons for this, including instances where the authorities had failed to follow up on the reported incidents (see paragraphs 10, 11, 18, and 2 4 above) or where the applicant had withdrawn her complaints concerning acts which could have constituted serious offences (see paragraphs 18 and 3 2 above). The Court would note at this point that due to specificity of domestic violence, withdrawal of complaints by victims is a recurrent phenomenon (see, in particular, Opuz, cited above, §§ 138-39; Volodina, cited above, § 99; and B. v. Moldova, cited above, § 54). It considers that such withdrawal should not relieve the national authorities of a duty to assess the gravity of the situation with a view to seeking an appropriate solution. Moreover, automatic reliance on the fact that the alleged victims have withdrawn their complaint, without a comprehensive analysis of the risks they continue to live with, is incompatible with States ’ duty to take into consideration the vulnerability of the victims of domestic violence when discharging their positive obligations in that area under Articles 3 and 8 of the Convention. 88. The Court next observes that, as appears from the case file, O.L. and the applicant were provided with the disputed social flat in connection with the birth of their daughters. After the divorce, the applicant alone was granted custody of the children. O.L., for his part, repeatedly failed to pay child support and school and social workers indicated that he was emotionally disengaged from their upbringing. The children, who repeatedly witnessed his arguments with the applicant, were reported to be seriously distressed (see paragraphs 26 and 29 above). It is not apparent from the ruling of the Court of Appeal that it considered the impact of those circumstances on the validity of O.L. ’ s continuing interest in keeping the social tenancy or analysed how his violent conduct towards the applicant affected the best interests of the children. 89. The Supreme Court, in turn, dismissed the applicant ’ s appeal against the ruling of the Court of Appeal, endorsing its analysis. 90. In the light of all the factors detailed above, the Court considers that in dismissing the applicant ’ s eviction claim against O.L. brought under Article 116 of the Housing Code, which, as explained by the Government, was in principle a suitable legislative solution for her case, the domestic judicial authorities did not conduct a comprehensive analysis of the situation and the risk of future psychological and physical violence faced by the applicant and her children. It also notes that the proceedings lasted over two years at three levels of jurisdiction, during which the applicant and her children remained at risk of further violence (compare with Bevacqua and S ., cited above, § 76). The fair balance between all the competing private interests at stake has therefore not been struck. The response of the civil courts to the applicant ’ s eviction claim against her former husband has accordingly not been in compliance with the State ’ s positive obligation to ensure the applicant ’ s effective protection from domestic violence. 91. There has therefore been a breach of Article 8 of the Convention in the present case. ALLEGED VIOLATIONS OF ARTICLES 6 AND 13 OF THE CONVENTION 92. Relying on Articles 6 and 13 of the Convention, the applicant also complained that the judgments of the Court of Appeal and the Supreme Court in her case had not provided an adequate response to her essential argument concerning the likelihood of her and her children being exposed to the risk of domestic violence in the event that they had to remain living with O.L., and that in view of the manner in which the domestic courts had interpreted and applied domestic law in her case, she had had no effective remedy for her grievances under Article 8 of the Convention. 93. Having regard to the facts of the case, the submissions of the parties, and its findings under Article 8 of the Convention, the Court considers that it has examined the main legal question raised in the present application, and that there is no need to give a separate ruling on the admissibility and merits of the above-mentioned complaints (see, for example, Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014). APPLICATION OF ARTICLE 41 OF THE CONVENTION 94. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” Damage 95. The applicant claimed 20,000 euros (EUR) in respect of non-pecuniary damage. She alleged that this amount would enable her to buy a separate flat and finally separate from O.L. 96. The Government argued that this claim was exorbitant and unsubstantiated. 97. The Court considers that the applicant must have suffered anguish and distress on account of the facts giving rise to the finding of a violation of Article 8 in the present case. Ruling on an equitable basis, the Court awards the applicant EUR 4,500 in respect of non-pecuniary damage, plus any tax that may be chargeable. Costs and expenses 98. The applicant also claimed EUR 2,000 for legal fees and EUR 80 for administrative expenses incurred by her lawyer, Mrs N. Bukhta, in connection with her representation before the Court. She requested that these payments be transferred to her representative ’ s account directly. In support of this claim, the applicant submitted a copy of the contract signed by her and Ms N. Bukhta for her representation in the proceedings before the Court, dated 1 February 2019. It stipulated that after the completion of the proceedings the applicant was to pay Mrs Bukhta EUR 50 for each hour of work, and an additional sum of 4% of the amount due for work done, for administrative and postage expenses; however, the total amount was not to exceed the Court ’ s award for costs and expenses. The applicant also submitted a time sheet completed by Mrs Bukhta in respect of the work done, which stated that Mrs Bukhta had worked on the case for forty hours. 99. The Government invited the Court to reject the claim for legal fees, as the applicant had not actually incurred the above expenses. They further submitted that the claim for administrative and postal expenses was not supported by any postage receipts or other appropriate documentary evidence. 100. In the light of the Court ’ s settled case-law (see, for example, Belousov v. Ukraine, no. 4494/07, §§ 115-17, 7 November 2013), the Court considers it reasonable to award the applicant, who was also granted EUR 850 in legal aid, EUR 1,150 in respect of legal fees, to be transferred directly to her representative ’ s account, as indicated by the applicant. Default interest 101. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention, finding that the response of the civil courts to the applicant’s eviction claim against her former husband had not been in compliance with the State’s positive obligation to ensure the applicant’s effective protection from domestic violence. The Court considered in particular that the domestic judicial authorities had not conducted a comprehensive analysis of the situation and the risk of future psychological and physical violence faced by the applicant and her children. Furthermore, the proceedings had lasted over two years at three levels of jurisdiction, during which the applicant and her children remained at risk of further violence. The fair balance between all the competing private interests at stake had therefore not been struck. |
308 | Prevention of terrorism | II. RELEVANT DOMESTIC LAW 12. Article 28 of the Constitution of Turkey reads as follows: “The press is free and shall not be censored. The establishment of a publishing company shall not be subject to prior permission or the deposit of a financial guarantee. The State shall take the necessary measures to ensure freedom of the press and freedom of information. As regards restrictions on freedom of the press, Articles 26 and 27 of the Constitution are applicable. Anyone who writes or prints any news or articles which threaten the internal or external security of the State or the indivisible integrity of the State with its territory and nation, which are aimed at inciting offences, riot or insurrection, or which refer to classified State secrets, and anyone who prints or transmits such news or articles to others for the above purposes, shall be held responsible under the law governing these offences. Distribution may be suspended as a preventive measure by the decision of a judge or, in the event that delay is deemed prejudicial, by the competent authority designated by law. The authority suspending distribution shall notify a competent judge of its decision within twenty-four hours. The order suspending distribution shall become null and void unless upheld by a competent judge within forty-eight hours. No ban shall be placed on the reporting of events except by a judge's decision designed to ensure the proper functioning of the judiciary, within the limits specified by law. Periodical and non-periodical publications may be seized by the decision of a judge in the event of an ongoing investigation into or prosecution of offences prescribed by law and, in situations where a delay could endanger the indivisible integrity of the State with its territory and nation, national security, public order or public morals, and for the prevention of an offence, by order of the competent authority designated by law. The authority issuing the order to confiscate shall notify a competent judge of its decision within twenty-four hours. The order to confiscate shall become null and void unless upheld by the competent court within forty-eight hours. The general common provisions shall apply to the seizure and confiscation of periodicals and non-periodicals for the purposes of criminal investigation and prosecution. Publication of periodicals published in Turkey may be temporarily suspended by order of the courts in the event of a criminal conviction on account of their containing material which undermines the indivisible integrity of the State with its territory and nation, the fundamental principles of the Republic, national security and public morals. Any publication which is clearly a continuation of a suspended periodical shall be prohibited and shall be seized following a decision by a competent judge.” 13. The relevant provisions of the Prevention of Terrorism Act (Law no. 3713), amended by Law no. 5532, which entered into force on 18 July 2006, read as follows: Section 6 “1. It shall be an offence, punishable by a term of imprisonment of one to three years, to announce, orally or in the form of a publication, that terrorist organisations will commit an offence against a specific person, whether or not that person's ... identity is divulged, provided that it is done in such a manner that he or she may be identified, or to reveal the identity of civil servants who have participated in anti-terrorist operations or to designate any person as a target. 2. It shall be an offence, punishable by a term of imprisonment of one to three years, to print or publish declarations or leaflets emanating from terrorist organisations. ... 4. If any of the offences defined in the paragraphs above are committed through the press or the media, the owners and editors-in-chief of the press and media organs concerned who did not participate in the commission of the offence shall also be liable to a judicial fine equivalent to between a thousand and ten thousand days'imprisonment. However, the maximum limit of this punishment shall be the equivalent of five thousand days for editors-in-chief. 5. Periodicals whose content openly encourages the commission of offences within the framework of the activities of a terrorist organisation, approves of the offences committed by a terrorist organisation or its members or constitutes propaganda in favour of the terrorist organisation may be suspended for a period of fifteen days to one month as a preventive measure by decision of a judge or, if a delay is detrimental, on an instruction from a public prosecutor. The public prosecutor shall notify the judge of such instruction within twenty-four hours. If the judge does not approve the decision within forty-eight hours, the instruction to suspend publication shall become null and void.” On 3 March 2006 the former President of Turkey lodged a case with the Constitutional Court ( case no. 2006/121) challenging the validity of section 6(5) of Law no. 3713. It had been argued, inter alia, that this section had created an unconstitutional penalty. On 18 June 2009 the Constitutional Court dismissed the case (decision no. 2009/90). Section 7(2) “Any person who disseminates propaganda in favour of a terrorist organisation shall be liable to a term of imprisonment of one to five years. Where this offence is committed through the press or the media, the sentence shall be increased by half. Moreover, the owners and editors-in-chief of the press and media organs concerned who did not participate in the commission of the offence shall also be liable to a judicial fine equivalent to between one thousand and ten thousand days'imprisonment. However, the maximum limit of this punishment shall be the equivalent of five thousand days for editors-in-chief.” 14. The relevant provisions of the Criminal Code (Law no. 5237) read as follows: Article 39 “ (1) A person who abets commission of an offence shall be liable to a term of imprisonment of fifteen to twenty years if the offence is punishable by an aggravated life sentence and ten to fifteen years where the offence is punishable by a life sentence. Punishment is reduced by half in all other circumstances. However, in the latter case the punishment cannot exceed eight years. (2) A person is deemed to have abetted commission of an offence in the following circumstances : (a) Encouragement to commit an offence ... ” Article 215 “Any person who approves of an offence committed, or praises a person on account of an offence he or she has committed, shall be liable to a term of imprisonment of up to two years.” Article 218 “Where one of the offences proscribed by Articles 213-217 is committed through the press or the media, the sentence shall be increased by half.” THE LAW I. JOINDER 15. Having regard to the similar subject matter of the applications, the Court finds it appropriate to join them. II. ADMISSIBILITY A. The alleged lack of victim status 16. The Government submitted that the editors -in-chief, news directors and journalists of Ülkede Özgür Gündem, Gündem, Güncel and Gerçek Demokrasi did not have any victim status as they had not been directly affected by the decisions to suspend the publication of these newspapers. They maintained that only the owners and the executive directors of these newspapers, namely the applicants Ali Gürbüz, Özlem Aktan, Lütfi Ürper and Hüseyin Bektaş, could claim to be victims of the alleged violations of the Convention. 17. Referring to the Court's decision in the case of Yıldız and Others v. Turkey ((dec.), no. 60608/00, 26 April 2005)) and to the judgment in the case of Halis Doğan and Others v. Turkey ( no. 50693/99, 10 January 2006), the applicants submitted that they had all been affected by the court orders. 18. The Court notes that it has already examined and rejected similar objections by the Government in previous cases (see Tanrıkulu, Çetin, Kaya and Others v. Turkey (dec.), nos. 40150/98, 40153/98 and 40160/98, 6 November 2001; Yıldız and Others, cited above). The Court finds no particular circumstances in the instant case which would require it to depart from this jurisprudence. It considers that the exercise of the freedom to receive and impart information of the editors -in-chief, news directors and journalists was directly affected by the decisions suspending the publication and distribution of the four newspapers. The Court accordingly rejects the Government's objection. B. The alleged failure to exhaust domestic remedies 19. The Government next argued that the applicants should have awaited the outcome of the criminal proceedings brought against the owners and the executive directors of the newspapers before lodging their applications. 20. The applicants submitted that their Convention grievances did not concern the aforementioned criminal proceedings but the decisions of the national courts suspending the publication of the newspapers. They further contended that they had exhausted all domestic remedies available to them in the context of the suspension orders. 21. The Court notes that the applicants'complaints under the Convention solely relate to the assize courts'decisions suspending the publication of Ülkede Özgür Gündem, Gündem, Güncel and Gerçek Demokrasi, and that the applicants had exhausted domestic remedies by filing objections to the various decisions. It therefore finds that the applicants have exhausted the domestic remedies available to them within the meaning of Article 35 § 1 of the Convention. The Court accordingly rejects the Government's objection. C. Compliance with other admissibility criteria 22. The Court observes that the applications are not manifestly ill ‑ founded within the meaning of Article 35 § 3 of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible. III. MERITS A. Alleged violations of Article 10 of the Convention 23. The applicants alleged under Article 10 of the Convention that the suspension of the publication and distribution of Ülkede Özgür Gündem, Gündem, Güncel and Gerçek Demokrasi, which was based on section 6(5) of Law no. 3713, constituted an unjustified interference with their freedom of expression. Article 10 reads insofar as relevant as follows: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. ... 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, [and] for the protection of the reputation or rights of others, ... ” 1. Whether there was interference 24. In the Court's view, the decisions suspending the publication and distribution of Ülkede Özgür Gündem, Gündem, Güncel and Gerçek Demokrasi amounted to “interferences ” with the exercise of the applicants'freedom of expression. This, moreover, has not been disputed by the Government. 25. Such interferences will be in breach of Article 10 unless they fulfil the requirements of paragraph 2 of that Article. It therefore remains to be determined whether the interferences were “prescribed by law”, pursued legitimate aims and were “necessary in a democratic society” in order to achieve them. 2. Whether the interferences were prescribed by law 26. The Government submitted that the decisions banning the publication of the newspapers had been prescribed by section 6(5) of Law no. 3713. 27. The applicants contended that section 6(5) of the Prevention of Terrorism Act was not law as it was in violation of the Constitution and the Convention. In this connection, they noted that the former President of Turkey had brought a case before the Constitutional Court seeking the annulment of the said section 6(5), since he rightly considered that this provision had created a penalty which did not exist in the Constitution of Turkey (paragraph 1 3 above). They also submitted that the decision of 16 July 2007 suspending the publication and distribution of Güncel had not been based on any domestic legal provision. 28. The Court reiterates that the expression “prescribed by law”, within the meaning of Article 10 § 2, requires firstly that the impugned measure should have some basis in domestic law. However, it also refers to the quality of law, which requires that legal norms should be accessible to the person concerned, their consequences foreseeable and their compatibility with the rule of law ensured (see, among others, Association Ekin v. France, no. 39288/98, § 44, ECHR 2001 ‑ VIII ). 29. In the present case it is not disputed that most of the national courts'decisions were based on section 6(5) of Law no. 3713. There remains the question of the latter's accessibility and foreseeability, as well as its compatibility with the rule of law. Moreover, one such decision on 16 July 2007 suspending the publication and distribution of Güncel (paragraph 7 above) was not based on this provision, but on a cross reference to the fact that the owner, journalists and content of Güncel were the same as those of Gündem, whose publications had previously been suspended. However, the relevant provision of Law no. 3713 does not envisage the suspension of a periodical on that basis. Therefore, the Court has serious doubts as to whether the decision of 16 July 2007 was soundly grounded in domestic law. Nevertheless, having regard to its findings below on the necessity question ( see paragraph 45 ), the Court considers that it is not required to reach a final conclusion on this “lawfulness” issue. 3. Whether the interferences pursued a legitimate aim 30. The Government submitted that the decisions banning the publication of the newspapers had pursued several legitimate aims, namely the protection of national security, territorial integrity and public safety, as well as the prevention of disorder and the protection of the reputation and rights of others. 31. The applicants maintained that measures could only have been taken to restrict freedom of expression for the prevention of disorder and crime. 32. The Court is of the opinion that in the present case the national authorities may be considered to have pursued the legitimate aim of preventing disorder and crime. The Court nevertheless considers that this issue is inextricably linked to the necessity in a democratic society of suspending the future publication of the newspapers, and therefore should be examined within that context. 4. Whether the interferences were necessary in a democratic society a. The parties'submissions 33. The Government maintained that the national judges had found that the articles in question had contained elements of propaganda in favour of a terrorist organisation and the approval of crimes committed by that organisation. Moreover, they had disclosed the identity of officials with anti ‑ terrorist duties, thus making them targets for terrorist attack. The Government contended that the decisions banning the publication of the newspapers had constituted preventive measures applied for limited periods of time and had met a pressing social need. Therefore, the interferences with the applicants'rights had been proportionate to the legitimate aims pursued and the reasons adduced by the authorities were relevant and sufficient. 34. The applicants maintained that, had the national courts intended to take proportionate measures, they could have confiscated the issues whose publication had allegedly broken the law. They claimed that the ban on the publication of the newspapers as a whole, whose future content was unknown at the time of the national courts'decisions, for such lengthy periods, had constituted censorship. b. The Court's assessment (i) General Principles 35. The Court reiterates that freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for individual self-fulfilment (see Lingens v. Austria, 8 July 1986, § 41, Series A no. 103 ). Although freedom of expression may be subject to exceptions, these must be narrowly interpreted and the necessity for any restriction must be convincingly established (see Observer and Guardian v. the United Kingdom, 26 November 1991, § 59, Series A no. 216). Nevertheless, it is in the first place for the national authorities to assess whether there is a “pressing social need” for the restriction and, in making their assessment, they enjoy a certain margin of appreciation. In cases, such as the present one, concerning the written media, the national margin of appreciation is circumscribed by the interests of a democratic society in ensuring and maintaining a free press (see Fressoz and Roire v. France [GC], no. 29183/95, § 45, ECHR 1999-I; Alınak v. Turkey, no. 40287/98, § 36, 29 March 2005 ). 36. The press plays an essential role in a democratic society. The Court has stated on several occasions that, although the press must not overstep the bounds required, for example, to provide protection against threats of violence, disorder or crime, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest, including divisive ones (see, for example, Şener v. Turkey, no. 26680/95, § 41, 18 July 2000; Sürek v. Turkey (no. 1) [GC], no. 26682/95, § 59, ECHR 1999-IV). Not only does the press have the task of imparting such information and ideas, but the public also has a right to receive them (see Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 62, ECHR 1999-III). (ii) Application of the above principles to the present case 37. The Court observes, at the outset, that the publication and distribution of four newspapers, Ülkede Özgür Gündem, Gündem, Güncel and Gerçek Demokrasi, were suspended for periods ranging from fifteen days to a month by different chambers of the Istanbul Assize Court. The suspension orders were made as the first-instance courts considered that certain articles and news reports which had been published in different issues of these newspapers contained elements of propaganda in favour of a terrorist organisation, the PKK/ KONGRA-GEL, as well as the approval of crimes committed by that organisation and its members, whilst at the same time disclosing the identity of officials with anti- terrorist duties, thus making them targets for terrorist attack. The applicants lodged unsuccessful objections to these suspension orders each time. 38. The Court considers that it is not necessary to examine the content of the impugned articles and news reports as the applicants'complaints in the present case do not concern the confiscation of particular issues, but the decisions banning the publication of the newspapers as a whole for periods of fifteen days to a month on the ground that the offences mentioned in section 6(5) of Law no. 3713 had been committed by way of publication of articles and news reports. 39. The Court reiterates in this connection that Article 10 of the Convention does not, in terms, prohibit the imposition of prior restraints on publication. However, the dangers inherent in prior restraints are such that they call for the most careful scrutiny on the part of the Court. This is especially so as far as the press is concerned, for news is a perishable commodity and to delay its publication, even for a short period, may well deprive it of all its value and interest (see Observer and Guardian, cited above, § 60). As freedom of the press was at stake, the national authorities had only a limited margin of appreciation to decide whether there was a “pressing social need” to take the measures in question ( Editions Plon v. France, no. 58148/00, § 44, ECHR 2004 ‑ IV ). 40. The Court acknowledges that the judicial character of the system governing the suspension of the publication of the newspapers was a valuable safeguard of freedom of the press. However, the decisions given by the national courts in this area must also conform to the principles of Article 10 of the Convention (see Gawęda v. Poland, no. 26229/95, § 47, ECHR 2002 ‑ II ). 41. In this connection, the Court observes that the Istanbul Assize Court's decisions entailed bans on future publication of entire periodicals. The Court observes that it has already had occasion to consider applications which concerned prior restraints on the media (see for example Observer and Guardian, cited above; Sunday Times v. the United Kingdom (no. 2), 26 November 1991, Series A no. 217) and held that they were not per se incompatible with the Convention. 42. The present applications are however distinguishable from these earlier cases because the restraints now under scrutiny were not imposed on particular types of news reports or articles, but on the future publication of entire newspapers, whose content was unknown at the time of the national court's decisions. 43. In the Court's view, both the content of section 6(5) of Law no. 3713 and the judges'decisions in the instant case stem from the hypothesis that the applicants, whose “ guilt ” was established without trial in proceedings from which they were excluded, would re - commit the same kind of offences in the future. The Court finds, therefore, the preventive effect of the suspension orders entailed implicit sanctions on the applicants to dissuade them from publishing similar articles or news reports in the future, and hinder their professional activities (see, mutatis mutandis, Demirel and Ateş v. Turkey (no. 3), no. 11976/03, § 28, 9 December 2008 ). However, the Court considers that less draconian measures could have been envisaged, such as the confiscation of particular issues of the newspapers or restrictions on the publication of specific articles. 44. The Court concludes that by suspending the publication and distribution of Ülkede Özgür Gündem, Gündem, Güncel and Gerçek Demokrasi, albeit for short periods, the domestic courts largely overstepped the narrow margin of appreciation afforded to them and unjustifiably restricted the essential role of the press as a public watchdog in a democratic society (see, mutatis mutandis, Cumpănă and Mazăre v. Romania, no. 33348/96, § 119, 10 June 2003; Obukhova v. Russia, no. 34736/03, § 28, 8 January 2009 ). The practice of banning the future publication of entire periodicals on the basis of section 6(5) of Law no. 3713 went beyond any notion of “necessary” restraint in a democratic society and, instead, amounted to censorship. 45. There has accordingly been a violation of Article 10 of the Convention. B. Alleged violations of Articles 6 and 13 of the Convention and Article 1 of Protocol No. 1 to the Convention 46. The applicants complained under Article 6 §§ 1 and 3 of the Convention that they were not able to participate in the proceedings before the Istanbul Assize Court and that the latter had decided to suspend publication and distribution of the aforementioned newspapers without obtaining their submissions in defence. They further contended under Article 13 of the Convention that they had not had a domestic remedy by which to challenge the lawfulness of the national court decisions, as their objections to the suspension orders had been dismissed without trial. The applicants also complained under Article 6 § 2 that these orders had violated their right to be presumed innocent, since the national courts had held, that criminal offences had been committed through the publication of news reports and articles in the aforementioned newspapers, for which they had been responsible. 47. Lastly, the applicants complained under Article 1 of Protocol No. 1 that the decisions to suspend the publication of Ülkede Özgür Gündem, Gündem, Güncel and Gerçek Demokrasi had constituted an unjustified interference with their right to property. 48. The Government contested these allegations. 49. However, having regard to the circumstances of the case and to its finding of a violation of Article 10 of the Convention above (paragraph 4 5 ), the Court considers that it has examined the main legal question raised in the present application. It concludes therefore that there is no need to make give separate rulings in respect of these other complaintson the applicant’s complaint (see, mutatis mutandis, Demirel and Others v. Turkey, no. 75512/01, § 27, 24 July 2007; Demirel and Ateş, cited above, § 37). IV. APPLICATION OF ARTICLES 46 AND 41 OF THE CONVENTION A. Article 46 of the Convention 50. Article 46 of the Convention reads as follows: “1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties. 2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.” 51. The Court's considerations and conclusion as regards the complaint concerning the applicants'freedom of expression indicate that the violation of the applicants'right under Article 10 of the Convention originated in a problem arising out of the Turkish legislation, namely section 6 (5) of Law no. 3713. By virtue of this provision, the national courts have ordered the suspension of the publication and distribution of several periodicals since it came into force on 18 July 2006. Several other applications concerning the same issue are currently pending before the Court. Without prejudging the merits of those cases, the above facts indicate that the problem at issue is of a systemic nature. 52. It has been the Court's practice, when discovering systemic problems, to identify their source in order to assist the Contracting States in finding the appropriate solution and the Committee of Ministers in supervising the execution of judgments (see Gülmez v. Turkey, no. 16330/02, § 62, 20 May 2008 ). Having regard to the systemic problem disclosed in the present case, the Court is of the opinion that general measures at the national level would be desirable to ensure the effective protection of the right to freedom of expression in accordance with the guarantees of Article 10 of the Convention. In this respect, the respondent Government should revise section 6(5) of Law no. 3713 to take account of the principles enunciated in the present judgment (paragraphs 3 5 - 4 5 above) with a view to putting an end to the practice of suspending the future publication and distribution of entire periodicals. B. Article 41 of the Convention 53. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 1. Damage a. Pecuniary damage 54. The applicants claimed 1,400,000 Turkish liras (TRY) (approximately 898,000 euros (EUR)) in pecuniary damages for the commercial loss which the newspapers had suffered as a result of the suspension decisions. Under the same head, the applicants further claimed EUR 97,000 for the damage which they had suffered individually. 55. In support of their claims, the applicants submitted copies of seven invoices. Three invoices, dated 12 and 19 November 2006 and 5 March 2007, demonstrate the amounts paid to Ülkede Özgür Gündem and Gündem by distributing companies. Four other invoices, dated 11 November 2006 and 7 March 2007, show the amounts paid by the aforementioned newspapers to printing companies. The applicants also submitted documents showing the amount of the employees'salaries of Ülkede Özgür Gündem and Gündem 56. The Government contended that there was no causal link between the alleged violations of the Convention and the purported pecuniary damage. 57. The Court considers that, while it may be accepted that copies of the invoices submitted by the applicants and the documents demonstrating the salaries of the employees show certain incomes and expenses of Ülkede Özgür Gündem and Gündem, nevertheless these documents do not sufficiently establish the exact amount of the loss of the newspapers: As commercial entities, the newspapers in the present cases should have had other income and expenses which have not been documented by the applicants. The Court is therefore unable to determine the exact amount of pecuniary damage suffered on the basis of the documents submitted by the applicants. 58. However, the Court accepts that some pecuniary loss must have resulted from the violation found in relation to the suspension of the publication of the newspapers for periods ranging from 15 days to a month (see, mutatis mutandis, Özgür Gündem v. Turkey, no. 23144/93, § 80, ECHR 2000 ‑ III). In the absence of any explanation from the applicants, the Court concludes that those applicants who are the executive directors, editors-in-chief, news directors and journalists were paid their salaries during the suspension periods. The Court therefore rejects the claims made individually by them. The pecuniary loss in issue was only suffered by the owners of the newspapers, namely Lütfi Ürper, Ali Gürbüz and Hüseyin Bektaş. Taking into account the particular circumstances of the case and making its own estimate based on the information contained in the case file, the Court awards Lütfi Ürper, Ali Gürbüz and Hüseyin Bektaş, respectively, EUR 40,000, EUR 5,000 and EUR 10,000 for pecuniary damage. b. Non-pecuniary damage 59. The applicants claimed EUR 162,000 in total in respect of non ‑ pecuniary damages. 60. The Government asked the Court to dismiss this claim, as the finding of a violation would in itself constitute sufficient compensation. 61. The Court considers that all the applicants may be deemed to have suffered a certain amount of distress and frustration, which cannot be sufficiently compensated by the finding of a violation alone. Taking into account the particular circumstances of the case and the type of violation found, the Court awards the applicants EUR 1,800 each for non - pecuniary damage. 2. Costs and expenses 62. The applicants also claimed EUR 23,960 for the costs and expenses incurred before the domestic courts and for those incurred before the Court. In this connection they submitted time sheets indicating the time spent by their legal representative regarding the applications, as well as tables of costs and expenditures. 63. The Government contested this claim. 64. According to the Court's case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the applicants, jointly, the sum of EUR 5,000, for their costs before the Court, less the EUR 1, 00 0 which Hüseyin Bektaş received in legal aid from the Council of Europe for his representation in application no. 54637/07. 3. Default interest 65. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 10 (right to freedom of expression) of the Convention. It found in particular that less draconian measures could have been envisaged by the Turkish authorities, such as confiscation of particular issues of the newspapers or restrictions on the publication of specific articles. By having suspended entire publications, however briefly, the authorities had restricted unjustifiably the essential role of the press as a public watch-dog in a democratic society. |
673 | Professionals | II. RELEVANT DOMESTIC LAW A. The Constitution 15. The relevant provisions of the Constitution read as follows: Article 24 “1. Everyone has the right to obtain effective protection by the judges and the courts in the exercise of his or her rights and legitimate interests, and in no case may he or she go undefended. 2. Likewise, everyone has the right to be heard by a court established by law, to the defence and assistance of a lawyer, to be informed of any charges brought against him or her, to a public trial without undue delay and with full guarantees, to make use of evidence relevant to their defence, not to incriminate him or herself, not to declare him or herself guilty, and the right to be presumed innocent.” Article 120 “1. Judicial proceedings shall be public, with the exceptions provided for in the laws on procedure. 2. Proceedings shall be predominantly oral, particularly in criminal matters. 3. Judgments shall always contain a statement of the grounds on which they are based and be delivered in a public hearing .” B. Procedure in administrative matters 16. The relevant provisions of Law 30/1992 on the legal regime applicable to the public administration and on common administrative procedure ( Ley de Régimen Jurídico de las Administraciones Públicas y del Procedimiento Administrativo Común ), as in force at the relevant time, read as follows: Section 31 “1. The following shall be considered interested parties in administrative proceedings: ( a ) ... ( b) Those who, without having instituted the proceedings, have rights that may be affected by the decision adopted. ( c) Those whose legitimate interests, whether individual or collective, may be affected by the decision and appear in the proceedings as long as no final decision has been taken. ... ” Section 139 “1. Individuals shall have the right to be compensated by the [public administration] concerned for any damage to their goods and rights, except in cases of force majeure, provided that the damage is the consequence of the normal or abnormal functioning of public services. ...” Section 145 “1. For liability [of the public administration ] to be effective, individuals shall claim compensation for the damage caused by the authorities and staff directly from the [ Administration ] concerned. 2. The [ Administration ] concerned, when it has compensated those who have suffered damage shall, of its own motion, seek liability from its authorities and its other staff for wilful misconduct or gross negligence ... To seek such liability the following criteria, among others, shall be weighed: the damage caused, the existence or [non-existence] of intent, the professional liability of the [ public officials] and their relation to the occurrence of the damage. ... ” 17. The rules of procedure on the liability of the public administration in force at the relevant time were approved by Royal Decree 429/1993 of 26 March 1993. 18. The relevant provisions of Law 29/1998 regulating judicial proceedings in administrative matters ( Ley reguladora de la Jurisdicción Contencioso-administrativa ), as in force at the relevant time, read as follows: Section 21 “1. The following shall be considered to be a respondent party: ( a) The [ public administration ] and whichever bodies referred to in section 1.3 against whose activity the action is directed. ( b) Persons or entities whose rights or legitimate interests may be affected should the claimant ’ s claims be upheld. ( c) The [ public administration ’ s ] insurer, which shall always be a co-defendant along with the [ Administration ] insured. ... ” Section 48 “1. The court registrar ... shall require the [ Administration ] to forward [him or her] the administrative file, ordering it to issue the summonses referred to in section 49 ... ” Section 49 “ 1. The decision to forward the file shall be notified within five days of its adoption to those appearing as interested parties in it, summoning them to appear as defendants within nine days ... ... 3. Once the file has been received, the court registrar ... shall check that the summonses have been issued and, if it becomes apparent that they are incomplete, [ he or she] shall order the [ Administration ] to issue the necessary [ summonses] to ensure the defence of the interested parties that are identifiable. ... ” 19. Constitutional Court judgment no. 15/2016 of 1 February 2016 interpreted the above - mentioned legal provisions in respect of liability proceedings brought against the public administration. The relevant passages of the judgment read as follows: “ ... what is at stake in liability proceedings brought against the [ Administration ] by an aggrieved party is not the possible liability of the public official who has participated in or contributed to causing the damage ( lato sensu ), but the strict liability of the [ Administration ] for any normal or abnormal functioning of public services, ... ... ... section 139 [of Law 30/1992] has specified the causal element that triggers ... the strict liability of the [Administration] for the functioning of public services, namely that the damage is the consequence of the normal or abnormal functioning of such services, except in cases of force majeure or of damage that the individual has the legal duty to sustain in accordance with the law. Law [ 30/1992] makes no mention of ... identifying the public official that may have caused the damage ..., nor does it make [the liability] conditional upon establishing [the public official ’ s] negligence, fault or intent, a perspective which does not even require examination, it being sufficient to prove the damage and the link between the functioning of the public service and the damage caused, ... The regulation of the action for liability against the [ Administration ] set up by the legislature, in short, implies that the affected right or legitimate interest is that of the aggrieved party bringing the action for compensation for the objective damage sustained, with the [ Administration ] being the defendant, without judging any additional, different and subjective liability of the [ public officials ] who have intervened in the situation at issue by act or omission. The legal regime of liability in this type of case nevertheless provides that ... the [ Administration ] may seek indemnity of the amount paid for the functioning of its public services from the public official subjectively liable, by bringing a recovery action under section 145 [of Law 30/1992] ... ... ... the reasoning contained in the legal conclusions of the judgment resulting from the first proceedings (strict liability of the [ Administration ] ) or the statement of facts arising from evidence examined that may relate to the subjective liability of the authorities or staff of the public administration, if they had been made on the occasion of the adduced objective damage examination, shall not under any circumstances entail, insofar as they are not the subject of the strict liability proceedings, the positive effect of substantive res judicata in subsequent proceedings judging the public officials ’ subjective liability ... ... In the light of the above conclusion, the impugned decisions finding the applicant ’ s lack of legal standing to be a party to the strict liability proceedings against the [ Administration ] in the absence of a legitimate interest did not cause defencelessness, given that the declaration of liability of the [ Administration ] does not entail any automatic benefit or damage to [his rights]. It shall be at a later stage, either when bringing the recovery action ... or when instituting a possible disciplinary action, where the applicant may make submissions, present and examine evidence admitted and, where appropriate, lodge an appeal for judicial review of the final administrative decision rendered, thus keeping his opportunities for defence intact. ... ” C. Publication of judgments 20. The relevant provisions of Organic Law 6/1985 of 1 July 1985 on the Judiciary ( Ley Orgánica del Poder Judicial ), as in force at the relevant time, read as follows: Section 186 “Courts and tribunals shall hold public hearings ... for ... the publication of judgments passed ... ” Section 205 “ The judge rapporteur shall be responsible ... for: ... 6. Delivering judgments in a public hearing. ” Section 232 “1. Judicial proceedings shall be public, with the exceptions provided for in the laws on procedure. 2. Exceptionally, for reasons of public policy or for the protection of rights and freedoms, courts and tribunals, by reasoned decision, may restrict the publication and decree the secrecy of all or part of the proceedings .” Section 235 “ Interested parties shall have access to books, files and judicial records which are not of a confidential nature ... ” Section 266 “1. Judgments, once issued and signed by the magistrate or by all the judges who passed them, shall be deposited in the Court Office [ Oficina Judicial ] and access to the text shall be given to any interested party. Access to the text of a judgment, or to certain matters therein, may be restricted when it could affect the right to private life, rights of individuals requiring special protection or the guarantee of anonymity of victims or aggrieved parties, where appropriate, as well as, in general, in order to prevent judgments from being used for purposes contrary to the law. ... ” 21. The relevant provisions of Law 1/2000 on Civil Procedure ( Ley de Enjuiciamiento Civil ), supplementing Law 29/1998 on the matters not provided for therein, as in force at the relevant time, read as follows: Section 212 “1. Judgments and other final decisions, once issued and signed by those who passed them, shall be published and deposited in the Court Office [ Oficina Judicial ] ... ” 22. Issues pertaining to public access to judicial documents and the publication of judicial decisions and proceedings are further regulated by Regulation 1/2005 on additional aspects of judicial proceedings, approved by the plenary of the General Council of the Judiciary ( Consejo General del Poder Judicial ) in the Agreement of 15 September 2005. Section 4 provides that it is for the court registrars to facilitate access to judicial documents, including judgments, for those having an interest in them. They may decide to restrict access to or omit personal data where the protection of the honour or private life of any person affected by the judicial decision so requires. A decision to refuse access by the court registrar may be reviewed by the judge or president at the request of the interested party. 23. The processing and dissemination of judicial decisions is also subject to legislation on data protection, particularly Organic Law 15/1999 of 13 December 1999 on the protection of personal data ( Ley Orgánica de Protección de Datos de Carácter Personal ) and its developing regulation approved by Royal Decree 1720/2007 of 21 December 2007. 24. The plenary of the Constitutional Court of Spain approved the Agreement of 23 July 2015 regulating the exclusion of personal identity data in the publication of judicial decisions. Under that agreement, the Constitutional Court of its own motion preserves the anonymity of those who are not party to constitutional proceedings in its judicial decisions. The publication of personal data of parties to such proceedings may also be restricted for the protection of their right to private life. In such cases, the names of those concerned by the publication of Constitutional Court decisions are replaced by their initials, and any other data allowing for their identification is omitted. The Agreement developed the criteria set forth in Constitutional Court judgment no. 114/2006 of 5 April 2006, which stated the following: “ 7. The constitutional requirement for maximum dissemination and publicity of the full text of judicial decisions of [ the Constitutional Court] ... is not absolute and may be excluded in certain cases ... [ This] principle may be restricted by the possible prevalence of other conflicting fundamental rights and constitutional guarantees, and that should be weighed in each case. ... The need to weigh and identify the particular interests to take into consideration to justify the exception of full publicity of the decision has been the consistent practice of this Court, it being dependent on a number of criteria also followed by foreign, supranational and international High Courts and, particularly, by the European Court of Human Rights. Hence, this Constitutional Court ... notwithstanding the special care shown in order not to include in its decisions any personal data other than that strictly necessary to formulate its reasoning and rulings, on different occasions ... has proceeded to omit the identification of certain persons mentioned in its decisions, either considering the guarantee of anonymity of victims and aggrieved parties in special cases ...; or the specific duty to protect minors ... This ... is consistent with the practice followed by the European Court of Human Rights both in its rules of procedure and its case-law ... ” THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 25. The applicant complained of a violation of his right to respect for his private life on the grounds that the judgment rendered by the High Court of Justice of Castilla - León within the framework of the liability proceedings brought against the public administration (proceedings to which he was not a party ), establishing allegations of harassment made exclusively against him, had amounted to unjustified interference with his right to honour and reputation. He relied on Article 8 of the Convention, which reads as follows : “1. Everyone has the right to respect for his private and family life, ... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Admissibility 26. The Government maintained that the alleged breach of the applicant ’ s right to respect for his private life had not come from the judgment itself but from its dissemination by the press. Hence, the applicant could have used the following remedies: (a) a criminal complaint for offences against honour filed against those accusing him of a criminal offence knowing that the accusation was false ( Article 205 of the Criminal Code); (b) a claim for protection of honour and privacy against those who made or published defamatory statements even when they did not constitute a criminal offence (Organic Law 1/1982 on civil protection of the right to honour and to respect for private and family life); (c) a claim for correction or retraction against the media (Organic Law 2/1984 of 26 March 1984 ). Accordingly, the Government claimed that the applicant had failed to use any of the aforementioned criminal or civil remedies available, and therefore requested the Court to declare his complaint under Article 8 inadmissible for failure to exhaust domestic remedies. 27. The applicant contested that objection. He stressed that the interference with his privacy and consequent breach of his right to honour and private life had come from the judgment rendered by the High Court of Justice of Castilla - León. He further claimed to have duly exhausted domestic remedies: he had requested the annulment of the proceedings, lodged an appeal against the refusal of his request to be a party to the proceedings, and lodged an amparo appeal with the Constitutional Court. The applicant emphasised that criminal or civil actions against the judges had not been possible in the instant case. 28. The Court is of the opinion that the crux of the issue lies in the actions of the State authority, namely the disclosure of the applicant ’ s identity in the High Court of Justice ’ s judgment coupled with the statement of his acts as part of its own reasoning. The dissemination of the judgment and the applicant ’ s identity in the media certainly had a greater impact on the applicant ’ s reputation. However, the Court notes that the core of the complaint lodged by the applicant relates to the judgment itself and not to its press coverage or repercussions in the media. 29. Accordingly, the Court dismisses the Government ’ s preliminary objection. 30. The Government have not raised any other objection concerning admissibility. However, the Court further notes that the applicant ’ s appeal lodged with the Constitutional Court solely invoked a breach of Article 24 of the Spanish Constitution (right to a fair trial). Under Rule 55 of the Rules of Court, any plea of inadmissibility must be raised by the respondent Contracting Party in its written or oral observations on the admissibility of the application. Accordingly, the normal practice of the Convention organs has been, where a case has been communicated to the respondent Government, not to declare the application inadmissible for failure to exhaust domestic remedies, unless the matter has been raised by the Government in their observations (see Dobrev v. Bulgaria, no. 55389/00, § 112, 10 August 2006; Yordanov v. Bulgaria, no. 56856/00, § 76, 10 August 2006; and the references cited therein). As the Government have failed to raise such an objection, it follows that the present application cannot be rejected by the Court on the grounds that the domestic remedies have not been exhausted. 31. The complaint must therefore be declared admissible as it is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and neither is it inadmissible on any other grounds. B. Merits 1. The parties ’ submissions (a) The applicant 32. The applicant maintained that the judgment rendered by the High Court of Justice of Castilla - León had affected the enjoyment of his “private life” by prejudicing his honour and reputation as a result of it establishing that he had committed acts of harassment in the workplace such as humiliating treatment, insults and death threats that had allegedly caused psychological damage to his colleague; all without him having been given the opportunity to defend himself against the allegations made exclusively against him. 33. The applicant also contended that the judgment and its media coverage had adversely affected his moral and psychological integrity and that he had suffered personally, socially, psychologically and professionally. Once the judgment had been made public, the applicant ’ s reputation amongst his neighbours, the educational community and his friends and family in a small city had been damaged, causing him irreparable harm. He claimed to have been unfit for work for over a year, to have received psychological treatment, and to have encountered hostility and mistrust from his colleagues, as well as students and their parents after returning to work. (b) The Government 34. The Government maintained that the High Court of Justice of Castilla-León had delivered a judgment setting out facts exclusively referring to the subject matter of the proceedings. They had been exclusively aimed at judging the acts of the public administration and its eventual liability, and thus the applicant had had no legitimate interest in being a party to the proceedings because he had not been affected at all by them. Moreover, the judgment had only been served on the parties to the proceedings. 35. The Government contested the applicant ’ s claim, alleging that any possible damage to him was exclusively caused by the dissemination activities carried out by private individuals, notably the applicant ’ s colleague and the media, against whom judicial proceedings had not been instituted. The Government further argued that the High Court of Justice could not be deemed responsible for the subsequent publication of the text of the judgment by any of the parties to the proceedings. They further reiterated that the applicant had had effective remedies available against the misuse of the text of the judgment by any of the parties; remedies that he had failed to use. 2. The Court ’ s assessment (a) General Principles 36. The Court reiterates that the right to protection of reputation is a right which is protected by Article 8 of the Convention as part of the right to respect for private life (see Axel Springer AG v. Germany [GC], no. 39954/08, § 83, 7 February 2012; Polanco Torres and Movilla Polanco v. Spain, no. 34147/06, § 40, 21 September 2010; Pfeifer v. Austria, no. 12556/03, § 35, 15 November 2007; and the authorities cited therein ). This also applies to a person ’ s honour (see A. v. Norway, no. 28070/06, § 64, 9 April 2009; Sanchez Cardenas v. Norway, no. 12148/03, § 38, 4 October 2007; and Egill Einarsson v. Iceland, no. 24703/15, § 33, 7 November 2017 ). The concept of “private life” is a broad term not susceptible to exhaustive definition (see, among other authorities, Fernández Martínez v. Spain [GC], no. 56030/07, § 109, 12 June 2014, and Gillberg v. Sweden [GC], no. 41723/06, § 66, 3 April 2012), which covers the physical and psychological integrity of a person and can therefore embrace multiple aspects of a person ’ s identity, such as a name or elements relating to a person ’ s right to their image (see S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, § 66, 4 December 2008, and Axel Springer AG [GC], cited above, § 83; with further references therein ). It covers personal information which individuals can legitimately expect should not be published without their consent (see Axel Springer AG [GC], cited above, § 83; Saaristo and Others v. Finland, no. 184/06, § 61, 12 October 2010; and Flinkkilä and Others v. Finland, no. 25576/04, § 75, 6 April 2010 ). 37. While the essential object of Article 8 of the Convention is to protect individuals against arbitrary interference by public authorities, it may also impose on the State certain positive obligations to ensure effective respect for the rights protected by Article 8 (see Bărbulescu v. Romania [GC], no. 61496/08, § 108, 5 September 2017; Hämäläinen v. Finland [GC], no. 37359/09, § 62, ECHR 2014; and the authorities cited therein). These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves ( see Fernández Martínez [GC], cited above, § 114, and Evans v. the United Kingdom [GC], no. 6339/05, § 75, ECHR 2007 ‑ I). 38. The boundaries between the State ’ s positive and negative obligations under the Convention do not lend themselves to precise definition. The applicable principles are nonetheless similar. In both contexts regard must be had in particular to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole, subject in any event to the margin of appreciation enjoyed by the State (see Bărbulescu [GC], cited above, § 108; Fernández Martínez [GC], cited above, § 114; and Palomo Sánchez and Others v. Spain [GC], nos. 28955/06 and 3 others, § 62, ECHR 2011 ). (b) Application to the present case 39. The Court observes at the outset that the applicant was not a party to the liability proceedings brought against the public administration. The national courts justified such restrictions by the special nature, purpose and scope of that type of proceedings. As described in paragraphs 13 and 19 above, the courts held that such proceedings solely concerned the public administration ’ s strict liability for the “normal or abnormal” functioning of public services. Therefore, the rights and legitimate interests affected were those of the injured party who brought the action to obtain compensation for damage sustained as a result of acts by public officials in the exercise of their duties. The possible liability of the public officials who had intervened in the situation at stake or had allegedly caused damage was not the subject of the proceedings, and consequently they could not participate in them. It was only the public administration concerned which was obliged to pay compensation as a result of the administrative or judicial decision, which was why it was the only party responsible for defending its acts and, therefore, the acts of its authorities and staff. A declaration of liability of the public administration did not entail any automatic benefit or damage to the public officials ’ rights. Hence, according to the courts, the applicant could have defended himself in person and contested all the constituent elements of liability, including the acts attributed to him, in a possible recovery action ( acción de repetición ) under section 145(2) of Law 30/1992. As the Constitutional Court noted, neither the reasoning nor the statement of facts set out in liability proceedings against the public administration had under any circumstances the force of res judicata with regard to subsequent proceedings judging the liability of the public official concerned. 40. The Court reiterates that the concept of private life extends to aspects relating to personal identity, such as a person ’ s name or physical and moral integrity, as well as to reputation and honour. In this connection, the Court notes that the judgment of the High Court of Justice of 2 November 2011 disclosed the applicant ’ s identity and held that the applicant ’ s conduct had amounted to psychological harassment and bullying. The publication of these findings was capable of adversely affecting his enjoyment of private and family life. Therefore, in the Court ’ s view, the facts underlying the applicant ’ s complaint fall within the scope of Article 8 of the Convention. 41. The Court also reiterates that Article 8 cannot be relied on in order to complain of a loss of reputation which is the foreseeable consequence of one ’ s own actions such as, for example, the commission of a criminal offence (see, inter alia, Gillberg [GC], cited above, § 67; Sidabras and Džiautas v. Lithuania, nos. 55480/00 and 59330/00, § 49, ECHR 2004 ‑ VIII; and Mikolajová v. Slovakia, no. 4479/03, § 57, 18 January 2011 ). The Court is of the opinion that in the instant case it can reasonably be supposed that the applicant could not have foreseen the consequences that the judgment of the High Court of Justice entailed for him. On the one hand, he was reportedly unaware of the proceedings. He had not been summoned to appear and was not a party to the proceedings, which in addition were solely aimed at determining the strict liability of the public administration concerned as a result of professional acts and omissions by public officials in the exercise of their duties. Furthermore, the complaint lodged against him by his colleague for psychological harassment in the workplace had been previously dismissed (see paragraph 6 above), and the colleague concerned had not taken further action against him. The Court also lays emphasis on the fact that the applicant was never charged with or proved to have committed any criminal offence. It follows that the disclosure of the applicant ’ s identity in the reasoning of the judgment of the High Court of Justice cannot be considered to be a foreseeable consequence of the applicant ’ s own doing. 42. Accordingly, the Court finds that the inclusion by the High Court of Justice of the applicant ’ s identity, coupled with the statement on his acts as part of its own reasoning in the judgment constituted an “ interference ” with the applicant ’ s right to respect for his private life as guaranteed by Article 8 § 1 of the Convention (see, mutatis mutandis, C.C. v. Spain, no. 1425/06, § 26, 6 October 2009; Sanchez Cardenas v. Norway, no. 12148/03, § 34, 4 October 2007; and Z v. Finland, no. 22009/93, § 71, 25 February 1997 ). 43. It therefore remains to be examined whether the interference was justified under Article 8 § 2. Such interference will give rise to a breach of Article 8 of the Convention unless it can be shown that it was “in accordance with the law”, pursued one or more of the legitimate aims referred to in paragraph 2 and was “necessary in a democratic society” in order to achieve them. 44. In this regard the Court notes that it is undisputed that the interference was “in accordance with the law” and the Court finds no reason to hold otherwise. 45. As to the question of whether the inclusion of the statement in the aforementioned judgment pursued any of the legitimate aims, the Court recognises that there is a public interest in ensuring the transparency of court proceedings and thereby the maintenance of the public ’ s confidence in the courts (see Z v. Finland, cited above, § 77). The Court is of the view that the reasoning of the High Court ’ s judgment may have pursued one or more of the legitimate aims enumerated in Article 8 § 2, notably “ the protection of the rights and freedoms of others ”, particularly of the applicant ’ s colleague – as an alleged victim of harassment in the workplace – by acknowledging and publicly disclosing the facts as a way of reparation for the damage suffered and in the interests of the proper administration of justice. 46. The Court further reiterates that an interference will be considered “necessary in a democratic society” for a legitimate aim if it answers a “pressing social need” and, in particular, if it is proportionate to the legitimate aim pursued and if the reasons adduced by the national authorities to justify it are “relevant and sufficient” (see, for example, Fernández Martínez [GC], cited above, § 124; S. and Marper [GC], cited above, § 101; and the authorities cited therein). 47. The Court accepts that the liability proceedings against the public administration had specific features that must be taken into account. Notwithstanding this, the Court notes that the High Court of Justice did not confine its reasoning to simply declaring the strict liability of the public administration or to concluding that the situation suffered by the applicant ’ s colleague had amounted to workplace harassment and that the education authorities, despite being aware of the situation, had not taken effective measures to prevent it or bring it to an end. It went beyond this by stating that the applicant ’ s conduct had amounted to repeated psychological harassment. The High Court of Justice drew its conclusion by conducting a thorough analysis of the facts and the evidence before it that identified the applicant by stating his full name and other relevant data. 48. Furthermore, the Court observes that the above portrayal of the applicant ’ s conduct in an authoritative judicial ruling was likely to have great significance by the way it stigmatised him and was capable of having a major impact on his personal and professional situation, as well as his honour and reputation. In fact, the High Court of Justice itself acknowledged in its decision of 2 March 2012 (see paragraph 13 above) that in this type of proceedings the public officials concerned were identifiable, their honour and moral integrity could be affected, and the administrative or judicial decisions were subject to potential media coverage. 49. The Court is therefore of the opinion that the disclosure of the applicant ’ s full name in the High Court of Justice ’ s judgment coupled with the statement of his acts as part of its own reasoning was not supported by any cogent reasons. As the Constitutional Court pointed out (see paragraph 19 above), Law 30/1992 made no mention of identifying the public official who had caused the damage, nor did it make the liability conditional upon establishing the public official ’ s negligence, fault or intent. This was not even required, it having been sufficient to prove the damage and its link with the functioning of the public service. In this connection, the Court reiterates that the protection of personal data is of fundamental importance to a person ’ s enjoyment of his or her right to respect for private and family life (see Z v. Finland, § 95, and C.C. v. Spain, § 31, both cited above ). 50. The Court also observes that under the relevant Spanish law (see paragraphs 20-24 above), the High Court of Justice had a discretion to omit mentioning any names in the judgment permitting the identification of the applicant or to restrict publication of the judicial proceedings for reasons of public policy or for the protection of rights and freedoms. Moreover, access to the text of a judgment, or to certain matters therein, could be restricted when any person ’ s right to private life was affected. 51. Hence, the High Court of Justice had the ability to adopt protective measures to preserve the applicant ’ s anonymity and decide of its own motion not to disclose the applicant ’ s identity or to remove identifying information in protection of his rights and freedoms. This could have been achieved by, for instance, referring to him simply by his initials. Such a measure would have to a great extent limited the impact of the judgment on the applicant ’ s right to reputation and private life. It is not apparent to the Court why the High Court of Justice did not take measures to protect the applicant ’ s identity, particularly given that he was not a party to the proceedings and had not been summoned to appear in them. 52. The Court points out that the practice of refraining from disclosing the identity of certain individuals in judicial decisions is also followed by the Constitutional Court of Spain itself (see paragraph 24 above). The Court also follows the same practice. Although the general rule is that all documents shall be accessible to the public, the President of the Chamber can decide otherwise by restricting public access to a document or to any part of it where “ the protection of the private life of the parties or of any person concerned so require ” (Rule 33 of the Rules of Court). Moreover, the Court may authorise anonymity or grant it of its own motion (Rule 47 § 4 of the Rules of Court). 53. The Court also takes note that the applicant reported that he only knew about the proceedings through the publication of information in a León newspaper some time after the judgment had been delivered. This was accepted by the domestic courts (see paragraph 13 above) and has not been challenged by the Government. It means that he would not have been aware of the proceedings until around a month after the judgment had been rendered. That is, more than five years after the complaint against the applicant had been dismissed by the competent education authorities (see paragraph 6 above) and after his colleague had filed a claim requesting that the administration be found liable for alleged psychological harassment in the workplace (see paragraphs 7 and 8 above). Nor does it emerge from any of the documents in the case file that the applicant was informed, questioned, summoned or in any other way notified by any other domestic authority of her colleague ’ s latter complaint. The Court further observes that his colleague did not reportedly take any (criminal or other) judicial action against the applicant after the complaint of harassment lodged with the education authorities had been dismissed. Accordingly, the applicant did not have the opportunity to request the non-disclosure of his identity or personal information by the High Court of Justice before its judgment was passed. The interference with the applicant ’ s private life was thus not accompanied by effective and adequate safeguards. 54. The Court lastly observes that under domestic law judicial proceedings are in principle public unless decided otherwise for reasons of public policy or for the protection of rights and freedoms. As a result, judgments are delivered in public and, once issued and signed by those who delivered them, published. The High Court of Justice ’ s judgment itself made reference to its own publication. Although the Government have suggested that the publication of the text of the judgment could have been caused by any of the parties to the proceedings, the Court observes that this argument is not sufficiently substantiated by the material in the case file. The manner in which the media had access to the information has not been established. Nonetheless, the case had a significant impact and repercussions in media. The press certainly had access to the applicant ’ s full name, as shown by the fact that his identity was disclosed in the information published; publications that followed its disclosure in the High Court ’ s judgment. 55. In this connection, the Court further notes that the parties have not disputed whether the judgment, once passed, was fully accessible by third parties not involved in the proceedings. The Court observes that it is not a judge but a court registrar who is in charge of authorising the disclosure of documents relating to judicial proceedings (see paragraph 22 above). Therefore, once the judgment was delivered, the access to the judgment was beyond the control of the High Court of Justice. Taking this into consideration, and the State authorities ’ obligation to protect individuals ’ right to reputation, the High Court of Justice should have adopted appropriate measures to protect the applicant ’ s right to respect for private life in drafting the judgment. 56. In the light of the above, the Court finds that the interference with the applicant ’ s right to respect for his private life occasioned by the High Court of Justice ’ s judgment, was not sufficiently justified in the particular circumstances of the case and, notwithstanding the national court ’ s margin of appreciation in such matters, was disproportionate to the legitimate aims pursued. Accordingly, there has therefore been a violation of Article 8 of the Convention. II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 57. The applicant complained under Article 6 § 1 of the Convention that, by refusing his request to become a party to the liability proceedings brought against the public administration despite his having a direct interest in them, he had not been given the opportunity to defend himself against serious allegations of harassment in the workplace in violation of his right of access to a court. The applicant further alleged that the lack of effective remedies to challenge the interference on his right to reputation and honour complained of under Article 8 had given rise to a violation of Article 13 of the Convention. 58. The Government contested that argument. 59. The Court notes that the complaints are linked to the one examined above under Article 8 of the Convention and must therefore likewise be declared admissible. 60. Having regard to its findings under Articles 8 of the Convention, the Court considers that it is not necessary to examine whether, in this case, there has been a violation of Articles 6 § 1 and 13 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 61. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 62. The applicant claimed a total of 37,061.62 euros (EUR) in respect of pecuniary and non-pecuniary damage. He claimed this amount as a result of the time he had been unfit for work while receiving psychological treatment and because he had suffered various after effects. 63. The Government contested that claim. 64. The Court observes that the applicant has not substantiated his claim concerning pecuniary damage; it therefore rejects this claim. On the other hand, it awards the applicant EUR 12 ,000 in respect of non-pecuniary damage. B. Costs and expenses 65. The applicant also claimed EUR 9,268.60 for the costs and expenses incurred before the domestic courts and before the Court. 66. The Government did not contest these claims. 67. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 9,268.60 covering costs under all heads. C. Default interest 68. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 8 (right to respect for private life) of the Convention, finding that, overall, the interference with the applicant’s right to respect for his private life had not been properly justified . The Court noted in particular that there had been no good reason to name the applicant in the judgment, which had led to him being stigmatised in proceedings to which he was not a party. He had only found about the judgment from the local press and had had no chance to request that his name not be disclosed in the judgment handed down by the High Court in question. |
343 | Rape and sexual abuse | II. RELEVANT DOMESTIC LAW A. Applicable criminal law 32. At the time of the incident, the applicable criminal law was the 1977 Criminal Code of the Socialist Republic of Slovenia. However, in the course of the retrial proceedings, a new Criminal Code was adopted in 1994 introducing more lenient sentences for the criminal offences of rape and aggravated rape. In accordance with the general principle of domestic criminal law that a law more lenient on the perpetrator may be applied retroactively, Article 180 of the 1994 Criminal Code was used in the proceedings, which reads, in so far as relevant, as follows: “(1) Whoever compels a person of the same or opposite sex to submit to sexual intercourse with him by force or threat of imminent attack on life or limb shall be sentenced to imprisonment for not less than one and not more than ten years. (2) If the offence under the preceding paragraph has been committed in a cruel or extremely humiliating manner or successively by at least two perpetrators or against an offender serving a sentence in a closed or semi-open type of penal institution, the perpetrator(s) shall be sentenced to imprisonment for not less than three years. ... ” 33. Section 286 ( 2 ) of the Criminal Procedure Act 1994 provides that the presiding judge shall schedule a first trial hearing within two months of receipt of the indictment. If he fails to do so, he must inform the president of the court thereof, and the latter is required to take the necessary steps to schedule the hearing. A provision to this effect was also included in the previously applicable Criminal Procedure Act 1977. B. Applicable civil law 34. According to Article 179 of the Code of Obligations, which constitutes the statutory basis for awarding compensation for non-pecuniary damage, such compensation may be awarded in the event of the infringement of a person ’ s personal rights, provided that the circumstances of the case, and in particular the level and duration of the distress and fear caused thereby, justify an award. C. The 2006 Act 35. Under Section 2 of the 2006 Act, the right to a trial within a reasonable time is guaranteed to, amongst others, injured parties in criminal proceedings. Section 16 of the Act provides for a compensatory remedy and fixes the maximum amount that may be awarded. It reads as follows: “(1) Monetary compensation shall be payable for non-pecuniary damage caused by a violation of the right to a trial without undue delay. Strict liability for any damage caused shall lie with the Republic of Slovenia. (2) Monetary compensation in respect of individual, finally decided cases shall be awarded in an amount of between 300 and 5,000 euros. (3) When deciding on the amount of compensation, the criteria referred to in section 4 of this Act shall be taken into account, in particular the complexity of the case, the actions of the State, the actions of the party [making the claim] and the importance of the case for that party.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 36. The applicant complained that the delays in the criminal proceedings against the individuals who raped her or participated were at variance with the respondent State ’ s obligation to provide an effective system of prosecution of the criminal offences committed against her, as required by Article 3 of the Convention. She also relied on Articles 6 § 1 and 13 of the Convention, alleging that her right to trial within a reasonable time had been violated in these proceedings. 37. The Court, being the master of the characterisation to be given in law to the facts of the case, finds that the above complaint falls to be examined under Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Admissibility 1. Incompatibility ratione temporis 38. The Government highlighted that Slovenia had ratified the Convention on 28 June 1994 and that the most important procedural steps taken concerning the criminal trial in issue had occurred before the critical date. Notably, the pre-trial proceedings had been carried out, the criminal investigation concluded and, most importantly, the entire first set of criminal proceedings before two courts (trial and appeal) had also been concluded. In the Government ’ s opinion, the criterion of a genuine connection between the event and the entry into force of the Convention was rather loose. However, they refrained from taking a position on whether these procedural steps excluded the present case from the Court ’ s temporal jurisdiction. 39. The applicant pointed out that her complaints were related to a situation which still obtained after the Convention became operational in respect of Slovenia, therefore she was of the opinion that her case fell within the Court ’ s temporal jurisdiction. 40. The Court reiterates that its jurisdiction ratione temporis covers only the period after the date of ratification of the Convention and its Protocols by the respondent State. After ratification, the State ’ s acts must conform to the Convention or its Protocols and subsequent facts fall within the Court ’ s jurisdiction, even where they are merely extensions of an already existing situation (see, for example, Almeida Garrett, Mascarenhas Falcão and Others v. Portugal, nos. 29813/96 and 30229/96, § 43, ECHR 2000-I). 41. With regard to the procedural obligations incumbent on the States, the Court observes that they have been implied in varying contexts under the Convention (see, for example, B. v. the United Kingdom, 8 July 1987, § 63, Series A no. 121; Cyprus v. Turkey [GC], no. 25781/94, § 147, ECHR 2001 ‑ IV; and M.C. v. Bulgaria, no. 39272/98, §§ 148-153, ECHR 2003 ‑ XII) where this has been perceived as necessary to ensure that the rights guaranteed under the Convention are not theoretical or illusory, but practical and effective ( İlhan v. Turkey [GC], no. 22277/93, § 91, ECHR 2000 ‑ VII). In particular, the Court has interpreted Articles 2 and 3 of the Convention, having regard to the fundamental character of these rights, as containing a procedural obligation to carry out an effective investigation into alleged breaches of the substantive limb of these provisions ( Ergi v. Turkey, 28 July 1998, § 82, Reports of Judgments and Decisions 1998 ‑ IV; Assenov and Others v. Bulgaria, 28 October 1998, §§ 101-06, Reports 1998 ‑ VIII; Mastromatteo v. Italy [GC], no. 37703/97, § 89, ECHR 2002 ‑ VIII, and Šilih v. Slovenia [GC], no. 71463/01, § 153, ECHR 2009 ). 42. Moreover, the Court has already held that the procedural obligation to carry out an effective and prompt investigation under Article 2 has evolved into a separate and autonomous duty capable of binding the State, even when the substantive act took place before the critical date (see Šilih, cited above, § 159, and, more recently, Janowiec and Others v. Russia [GC], nos. 55508/07 and 29520/09, § § 141-150, 21 October 2013 ). For such a procedural obligation to come into effect, a significant proportion of the investigating steps required by this provision will have been or ought to have been taken after the critical date ( see Janowiec and Others, § 1 42 ). Subsequently, the Court has applied this principle to cases concerning deaths at the hands of private individuals (see Lyubov Efimenko v. Ukraine, no. 75726/01, § 63, 25 November 2010, and Frandeş v. Romania (dec.) no. 35802/05, 17 May 2011). Finally, in Tuna v. Turkey (no. 22339/03, § 58, 19 January 2010) and in Stanimirović v. Serbia ( no. 26088/06, § 28, 18 October 2011 ), it went on to hold that the principles established in Šilih similarly applied to the procedural obligation to investigate under Article 3. 43. In the present case, the Court observes that the applicant ’ s complaint of failure to comply with the procedural obligations arising from Article 3 primarily concerns the allegedly excessive duration of the criminal proceedings concerning her gang rape and sexual assault which took place in 1990, four years before the entry into force of the Convention in respect of Slovenia. The Court agrees with the Government that a considerable number of procedural steps were carried out before the critical date. However, it is worth noting that following the remittal of the case for fresh examination, three entire retrials involving a number of hearings were conducted after this date. Furthermore, the criminal proceedings against the ten individuals accused of raping and sexually assaulting the applicant took place before three judicial instances and were only concluded on 12 July 2007, thirteen years after the entry into force of the Convention. A significant proportion of the proceedings covering a lengthy period of time therefore took place after the critical date and, finally, the applicant ’ s complaints about the State ’ s failure to conduct effective and prompt criminal proceedings also pertain to a large extent to this period. 44. In view of this, the Court finds that the alleged procedural violation of Article 3 falls within its temporal jurisdiction and that it is therefore competent to examine this part of the application in so far as the events occurred after 28 June 1994. 2. Non-exhaustion of domestic remedies 45. The Government objected that the applicant had failed to exhaust domestic remedies, as she had not introduced an action against the State for compensation of non-pecuniary damage caused by the State authorities based on Article 179 of the Code of Obligations. According to the Government, any unlawful conduct on the part of the authorities might constitute a violation of an individual ’ s personal rights. In support of their submissions, they cited eight decisions of the Supreme Court adopted between 1998 and 2009 and two decisions of the Ljubljana Higher Court of 2010 and 2011 showing that the State had been found by the domestic courts to be liable for damages related to the work of its employees and the exercise of their powers. Moreover, the Government submitted eleven decisions of the Supreme Court, the Ljubljana Higher Court and the Maribor Higher Court in which a wide range of rights, such as the rights to personal dignity, to physical and mental integrity, to a healthy living environment, to personal liberty, to respect for the deceased and to the inviolability of the home had been considered as “personal rights” by the courts and their unlawful infringement had been found to cause mental distress warranting compensation. 46. The applicant challenged the Government ’ s arguments, observing that she had exhausted all available domestic remedies and that she had only been able to achieve partial success with her claim for compensation under the 2006 Act. 47. The general principles on the exhaustion of domestic remedies are set out in Sejdovic v. Italy ([GC], no. 56581/00, §§ 43-46, ECHR 2006 ‑ II). The Court will apply these principles to the legal avenue relied upon by the Government. It emphasises at the outset that the rule of exhaustion of domestic remedies is neither absolute nor capable of being applied automatically : in reviewing whether the rule has been observed, it is essential to have regard to the particular circumstances of the individual case. This means, among other things, that the Court must take realistic account not only of the existence of formal remedies in the legal system of the Contracting Party concerned but also of the general context in which they operate, as well as the personal circumstances of the applicant (see, among other authorities, Akdivar and Others v. Turkey, 16 September 1996, §§ 66 and 68-69, Reports 1996-IV; Orchowski v. Poland, no. 17885/04, §§ 105-106, 22 October 2009; Demopoulos and Others v. Turkey (dec.) [GC], nos. 46113/99, 3843/02, 13751/02, 13466/03, 10200/04, 14163/04, 19993/04 and 21819/04, § 70, ECHR 2010; and Kurić and Others v. Slovenia [GC], no. 26828/06, § 286, 26 June 2012 ). 48. In the present case, the Government argued that the applicant could have introduced an action for damages against the State under Articles 148 and 179 of the Code of Obligations. The Court notes that the prospects of success of such a remedy would depend on whether the applicant could prove that the conduct of the domestic authorities had amounted to unlawful “infringement of her personal rights” (see the relevant domestic provisions summarised in paragraph 34 above). However, none of the decisions cited by the Government showed that the procedural obligation to provide for effective prosecution of violent acts against individuals would be considered by the domestic courts within the context of “personal rights” and that the authorities ’ failure to comply with their procedural obligation would amount to the “infringement” of these rights. The domestic decisions cited by the Government related to substantive fundamental rights and not to the rights arising from the State ’ s positive obligation to conduct an effective investigation and criminal proceedings. Moreover, it cannot be overlooked that the Government disputed the applicant ’ s victim status on account of the compensation she had been awarded in the proceedings against the State under the 2006 Act (see paragraph 51 below). Having regard to the specific circumstances of the present case, where the applicant essentially complained of the lack of promptness in dealing with her case, this Government ’ s objection reinforces the Court ’ s doubts as to whether she could have obtained a separate examination of her complaints in the light of the State ’ s positive obligations under Article 3 in a civil action brought in accordance with the general rules of civil law. 49. In light of the above, the Court is not convinced that, in the present case, a claim for damages against the State would have had reasonable prospects of success and would constitute an effective remedy for the purposes of Article 35 § 1 of the Convention (see, mutatis mutandis, Mandić and Jović v. Slovenia, nos. 5774/10 and 5985/10, § § 115-116, 20 October 2011 ). 50. It follows that the Government ’ s objection of non-exhaustion of domestic remedies should be dismissed. 3. Lack of victim status 51. The Government objected that the applicant could no longer claim to be a victim of a violation of Article 3, having been awarded and paid compensation on the grounds that the criminal proceedings against the perpetrators of the criminal acts against her had not been concluded within a reasonable time. 52. The applicant, on the other hand, argued that the compensation in the amount of EUR 5,000, the maximum amount that may be awarded pursuant to the 2006 Act, had not constituted sufficient redress in her case and maintained her complaint. 53. Article 34 of the Convention, in so far as relevant, provides: “The Court may receive applications from any person ... claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. ...” 54. Having regard to the fact that the national authorities acknowledged a violation of the applicant ’ s right to trial within a reasonable time under Article 6 of the Convention and awarded her compensation under this head, the Court considers that the issue of whether the applicant can still be considered a victim of the violation complained of depends on whether the domestic decisions rendered in the course of the 2006 Act proceedings entailed an acknowledgment, at least in substance, of a violation of the State ’ s positive obligations under Article 3 to undertake an effective prosecution of the criminal offences committed against the applicant, and whether the compensation she received constituted appropriate and sufficient redress. The Court finds that these questions are closely linked to the substance of the applicant ’ s complaint and should accordingly be joined to the merits. 4. Failure to respect the six-month rule 55. The Government asserted that in her original application of 22 May 2006, the applicant had only complained of a violation of her right to trial within a reasonable time in the criminal proceedings. She had only raised the complaint under Article 3 of the Convention in her submissions made on 23 June 2009, in which she had claimed that the State had failed to provide her with effective vindication of her right not to be subjected to inhuman or degrading treatment by conducting unduly long criminal proceedings against the perpetrators of the criminal acts against her. Accordingly, in the opinion of the Government, the applicant ’ s latter complaint was lodged after the expiry of the six-month period and was therefore inadmissible. 56. The applicant disputed this objection by arguing that she had already made her complaint under Article 3 in substance in her initial application of 22 May 2006. 57. The Court notes that the applicant ’ s main complaint raised under Article 6 of the Convention in her initial application form of 22 May 2006 was essentially the same as the one raised under Article 3 in her additional submissions. In both instances, she complained of the allegedly excessive length of the criminal proceedings concerning the criminal acts of which she was the victim and as a result of which she had endured prolonged mental distress and almost sixteen years of uncertainty as to whether her rapists would be convicted. Reiterating that it is not bound by the legal characterisation of the facts put forward by the parties and recalling that the requirement of promptness is implicit in various Convention provisions including the procedural limb of Article 3 of the Convention (see paragraph 6 4 below), in the light of the specific circumstances of the present case the Court considers it appropriate that the applicant ’ s complaint should be examined under this latter provision. 58. It follows that the Government ’ s objection that the applicant ’ s complaint under Article 3 was lodged out of time should be dismissed. 5. Conclusion 59. The Court notes that the complaint under Article 3 is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The applicant ’ s victim status 60. The Court considers that in the present case it cannot answer the question whether the applicant subsequently lost her initial status as the victim of a breach of Article 3 of the Convention within the meaning of Article 34 of the Convention without having first examined whether the domestic authorities discharged their procedural obligation under Article 3 to effectively investigate and prosecute the criminal offences of sexual abuse. Thereafter, the adequacy or otherwise of the authorities ’ response thereto can be considered. ( a ) Whether the impugned treatment was contrary to the procedural aspect of Article 3 ( i ) The parties ’ submissions 61. The applicant complained that the conduct of the criminal proceedings against the perpetrators of the criminal acts against her had caused her a much greater level of distress than should have been necessary. She first referred to the excessive delays in the proceedings, in particular the complete inactivity of the authorities between 1991 and 2000. In her additional submissions the applicant pointed out that all perpetrators of the gang rape and sexual assault had been acquitted of all charges in the initial proceedings, which, for her, had resulted in prolonged and heightened uncertainty as to whether her rapists would be convicted and had caused her severe suffering. In the retrial, the proceedings against the two missing defendants had had to be severed into separate cases, which had entailed her involvement in three separate trials in which she had had to relive the events in question over and over. She had also felt deeply humiliated by the statements made by the defendants at the hearings, in which they had laid heavy emphasis on her physical disability. Finally, the applicant pointed out that the perpetrators had been handed down very lenient prison sentences which had not sufficiently taken her young age at the time of the commission of their crimes and her physical and learning disabilities into account. 62. The Government claimed that the domestic authorities had investigated the criminal offences against the applicant conscientiously and effectively. The perpetrators of the acts had been identified, their criminal liability had been established and they had received prison sentences, albeit reduced on account of the significant passage of time from the commission of their offences to their conviction. In this connection, the Government acknowledged that the length of the criminal proceedings had been excessive, and explained that the situation had resulted from a systemic problem of court backlogs, which had, however, been effectively addressed as part of the “ Lukenda ” project created specifically to deal with considerable delays in processing cases. One of the measures adopted within this project was the 2006 Act, under which the applicant had been awarded compensation for the excessive length of the proceedings. (ii ) The Court ’ s assessment 63. The relevant principles concerning the State ’ s obligation inherent in Article 3 of the Convention to investigate cases of ill-treatment, and in particular sexual abuse committed by private individuals, are set out in M.C. v. Bulgaria ( cited above, §§ 148-153 ). 64. As regards the Convention requirements relating to the effectiveness of an investigation, the Court has held that any investigation should in principle be capable of leading to the establishment of the facts of the case and to the identification and punishment of those responsible for an offence. This is not an obligation of result, but one of means. The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, such as by taking witness statements and gathering forensic evidence, and a requirement of promptness and reasonable expedition is implicit in this context (see Denis Vasilyev v. Russia, no. 32704/04, § 100, 17 December 2009, with further references). The promptness of the authorities ’ reaction to the complaints is an important factor (see Labita v. Italy [GC], no. 26772/95, §§ 133 et seq., ECHR 2000-IV). Consideration has been given in the Court ’ s judgments to matters such as the time taken to open investigations, delays in identifying witnesses or taking statements (see Mătăsaru and Saviţchi v. Moldova, nos. 38281/08, §§ 88 and 93, 2 November 2010), the length of time taken for the initial investigation (see Indelicato v. Italy, no. 31143/96, § 37, 18 October 2001), and unjustified protraction of the criminal proceedings resulting in the expiry of the statute of limitations (see Angelova and Iliev v. Bulgaria, no. 55523/00, §§ 101-1 03, 26 July 2007, and P.M. v. Bulgaria, no. 49669/07, § 66, 24 January 2012 ). 65. Moreover, in so far as the investigation leads to charges being brought before the national courts, the procedural obligations under Article 3 of the Convention extend to the trial stage of the proceedings. In such cases the proceedings as a whole, including the trial stage, must satisfy the requirements of the prohibition of ill-treatment (see Okkalı v. Turkey, no. 52067/99, § 65, ECHR 2006 ‑ XII (extracts), and Çelik v. Turkey (no. 2), no. 39326/02, § 34, 27 May 2010 ). In this respect, the Court has already held that, regardless of the final outcome of the proceedings, the protection mechanisms available under domestic law should operate in practice in a manner allowing for the examination of the merits of a particular case within a reasonable time (see Ebcin v. Turkey, no. 19506/05, § 40, 1 February 2011, with further references). 66. Turning to the present case, the Court notes that by the time the Convention entered into force with respect to Slovenia on 28 June 1994, the pre-trial stage of the criminal proceedings against the men accused of raping the applicant had been concluded (see paragraph 7 above), a trial had been conducted and the first-instance judgment pronounced, which was however overturned on appeal (see paragraphs 9 and 11 above). Following the remittal of the case and an initial inquiry seeking to establish the defendants ’ places of residence in 1991, all activity in the case ceased until, and beyond, the entry into force of the Convention for Slovenia, owing to the fact that two defendants could not be found. Between 1995 and 2001 another four similar inquiries were made with no success (see paragraph 12 above). For the same reason, the five hearings scheduled between 1999 and 2001 also had to be adjourned (see paragraph 14 above). At the applicant ’ s suggestion, on 29 May 2001 the competent court severed the cases against the two missing defendants, who allegedly resided abroad, into separate proceedings and subsequently issued an international arrest warrant against them. The first hearing in the main proceedings against eight defendants was held on 22 November 2001, and on 4 June 2002 the court found them guilty of the charges (see paragraph 19 above) and imposed prison sentences on them. The first-instance judgment was upheld both by the higher court on 25 January 2006 and by the Supreme Court on 12 July 2007 (see paragraph 20 above). In addition the two missing defendants, who were subsequently found abroad and extradited to Slovenia, were eventually convicted as charged and their appeals were dismissed in 2004 and 2006 (see paragraphs 21 and 22 above). 67. Recalling the Government ’ s acknowledgment that the delays accumulated in the criminal proceedings had indeed been excessive, the Court finds no reason to disagree with that assessment. Namely, it notes with concern that the only procedural activity undertaken by the competent court between the remittal of the case in 1991 and the first retrial hearing, which took place on 22 November 2001, was to make a few inquiries about the defendants ’ places of residence and to schedule five hearings, all of which were adjourned for failure of some of the defendants to appear in court. Considering that it was clear from as early as July 1991 that two defendants were not to be found in Slovenia, in the Court ’ s opinion these steps were clearly insufficient to secure their presence at the hearings and thus to proceed with the case in a diligent manner. In this connection, the Court finds it striking that detention orders and international arrest warrants against them were only issued in 2001. It is equally striking that the separation of the cases against these defendants from the main proceedings was also first envisaged in 2001, at the suggestion of the applicant, who, since 1995, had repeatedly been urging the district court to accelerate the proceedings. In the Court ’ s opinion, this course of proceedings implies a lack of interest on the part of the competent courts in bringing the responsible persons to justice, which was at variance with the Convention requirements of effective investigation and trial as set out in paragraph 63 above. 68. Moreover, it is worth noting that the defendants who were eventually convicted of the criminal acts against the applicant received prison sentences of between eight months and a year, which amounted to less than the minimum sentences prescribed by law, as the district court took into account, inter alia, the significant lapse of time which had passed from the commission of the crimes until conviction. 69. In light of the above, the Court agrees with the applicant that the prolonged state of uncertainty and other negative implications of the lengthy proceedings, in particular having to relive the painful events a number of times in three separate retrials, caused her unnecessary suffering and frustration which could have been avoided had the criminal- law mechanisms aimed at deterrence of and punishment for criminal acts of sexual abuse been applied in an effective and prompt manner. In this regard, the Court would add that the failure of the State to ensure effective prosecution of rape cannot be justified by the backlog of cases in the relevant courts (see, mutatis mutandis, Scordino v. Italy (no. 1) [GC], no. 36813/97, § 183, ECHR 2006 ‑ V, and the references cited therein). Neither can it be justified by the frequent changes of the sitting judges who were dealing with the applicant ’ s case. Namely, as the Court has already emphasised on many occasions, it is for the State to organise its judicial system in such a way as to enable its courts to comply with the requirements of the Convention (see, for example, Šilih, cited above, § 210). 70. Finally, the Court points out that the requirement imposed on the States to ensure effective protection against ill-treatment by private individuals, in particular, to children and other vulnerable persons, also applies in the context of their procedural obligation to provide the effective investigation and prosecution of such ill-treatment (see M.C. v. Bulgaria, cited above, § § 150 -153 ). Against that backdrop, the Court considers that the deficiencies established with regard to the conduct of the criminal proceedings in issue are all the more serious in light of the applicant ’ s particular vulnerability as person with physical and learning disabilities. 71. Therefore, the Court finds that the domestic authorities did not comply with their positive obligations under Article 3 of the Convention. (b) Whether the applicant lost her victim status (i ) Arguments of the parties 72. The Government, agreeing that the delays in the criminal proceedings concerning the applicant ’ s rape had been excessive, argued that the situation had been appropriately redressed by the competent domestic authorities, which had awarded the applicant EUR 5, 000 as compensation for non-pecuniary damage sustained as a result of the violation of the right to trial within a reasonable time. Taking the view that in the specific circumstances of the present case the remedy in question had constituted appropriate and sufficient redress with regard to both the alleged violations of the “reasonable time” requirement under Article 6 of the Convention and of the applicant ’ s procedural rights under Article 3 of the Convention, the Government argued that she had lost her victim status. They pointed out that in the proceedings for compensation under the 2006 Act, the domestic courts had taken account of the particular circumstances of the criminal proceedings, emphasising that the applicant ’ s case had not been handled in a careful, resolute and rapid manner, as required by the serious nature of the criminal acts involved, and that during the lengthy proceedings the applicant had had to relive the abuse she had suffered, which had caused her severe mental distress. Consequently, the applicant had been awarded a considerably higher amount than would normally have been granted under the 2006 Act. In the Government ’ s opinion, the domestic courts had therefore appropriately examined the substantial deficiencies in the criminal proceedings on which the applicant had based her allegations concerning a violation of the State ’ s positive obligations under Article 3. 73. The applicant acknowledged that the award of compensation had constituted partial redress for the mental distress she had suffered as a result of the lengthy criminal proceedings. However, she considered that EUR 5,000 had not sufficiently compensated her for the multitude of failures surrounding the excessive length of the proceedings and the different human rights violations caused thereby. In this regard, she contended that her own case had been quite extreme and EUR 5,000 could not be regarded as sufficient redress. ( ii ) The Court ’ s assessment 74. The Court reiterates that a decision or measure favourable to the applicant is not in principle sufficient to deprive him of his status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see, for example, Amuur v. France, 25 June 1996, § 36, Reports 1996- III, and Dalban v. Romania [GC ], no. 28114/95, § 44, ECHR 1999-VI). 75. In the present case, the domestic authorities acknowledged that the applicant ’ s right to trial within a reasonable time had been violated and awarded her compensation for this violation. The Court must therefore examine whether this acknowledgment ought also to apply in the context of the applicant ’ s complaint under Article 3 of the Convention, and if so, whether the compensation constituted appropriate and sufficient redress for the breach of the applicant ’ s rights under the Convention. α ) The acknowledgment of a violation 76. The Court observes that the applicant ’ s complaint under Article 3 of the failure of the State to ensure an effective trial of the charges of her rape was directed mainly against the delays in the proceedings. Therefore, while mindful of the fact that the remedies provided by the 2006 Act – including the award of compensation – specifically concern the right to have one ’ s case examined within a reasonable time, within the meaning of Article 6 § 1 of the Convention (see paragraph 35 above), and do not in principle address situations in which delays are examined in terms of interference by the State with an applicant ’ s rights under other Convention provisions (see, in this regard, Šilih, cited above, § § 169-170; and Eberhard and M. v. Slovenia, no. 8673/05 and 9733/05, § 105, 1 December 2009 ), the Court does not exclude the possibility that the compensation awarded to the applicant under this Act may have provided her with effective redress for the breach of her rights under Article 3, on condition that the breach of this provision was acknowledged by the relevant domestic courts in substance. 77. In this regard, the Court agrees with the Government that the local court deciding on the compensation to be awarded to the applicant took particular account of the nature of the criminal acts committed against her, emphasising their gravity, the importance of conducting particularly diligent and prompt criminal proceedings concerning these acts, and the mental distress and suffering endured by the applicant due to the lengthy proceedings. Therefore, although the criminal proceedings were examined from the perspective of the “reasonable time requirement”, the Court finds that the local court ’ s reasoning, confirmed by the higher court, included both recognition of the State ’ s obligation to effectively prosecute cases of sexual abuse and a finding that the competent authorities had failed to comply with this obligation. Moreover, it is not to be overlooked that the serious nature of the applicant ’ s case influenced the amount of the compensation awarded to her, the local court having departed from the established domestic criteria for the calculation of awards made in compensation for the breach of the right to trial within a reasonable time. 78. In light of the foregoing, the Court finds that although the domestic courts did not specifically refer to Article 3 of the Convention in their decisions, their reasoning entailed an acknowledgement in substance of a breach of this Article. β ) The characteristics of the redress 79. The Court reiterates that the question whether the applicant received reparation for the damage caused – comparable to just satisfaction as provided for under Article 41 of the Convention – is an important issue ( see Shilbergs v. Russia, no. 20075/03, § 72, 17 December 2009 ). 80. In the present case the violation of the Convention found by the Court consists of the State ’ s failure to conduct a prompt and effective trial of the charges of rape and sexual abuse of the applicant. Having regard to the fact that the deficiencies in the conduct of the proceedings cannot be rectified anymore by restoring the situation as it existed before the breach of the Convention, or by preventing the continuation of the violation, there can be no doubt that an award of compensation constituted an appropriate form of redress for the delays and related mental distress suffered by the applicant. 81. It remains to be ascertained whether the redress already afforded to the applicant at the domestic level was sufficient. It has already been established by the Court that in cases involving a breach of Article 3 at national level, an applicant ’ s victim status may, inter alia, depend on the level of compensation awarded at domestic level, having regard to the facts complained about before the Court (see Gäfgen v. Germany [GC], no. 22978/05, § 118, ECHR 2010 ). Having regard to the wider margin of appreciation left to the domestic courts in this regard (see Shilbergs, cited above, § 77, and the references cited therein), the Court has emphasised, in particular, that the sums awarded may not be unreasonable in comparison with the awards made by the Court in similar cases. Whether the amount awarded may be regarded as reasonable falls to be assessed in the light of all the circumstances of the case. However, where the amount of compensation is substantially lower than what the Court generally awards in comparable cases, the applicant retains his or her status as a “victim” of the alleged breach of the Convention (see, mutatis mutandis, Scordino, cited above, §§ 1 82-92 and 202-15 ). 82. The parties ’ positions in the present case differed on this point, the Government alleging that the EUR 5,000 awarded to the applicant constituted appropriate redress, and the applicant maintaining that this amount, albeit the statutory maximum, had not provided sufficient compensation given the extreme nature of her case. Indeed, the Court considers that the duration and severity of the violation are among the factors to be taken into account in assessing whether the domestic award could be regarded as adequate and sufficient redress (see, mutatis mutandis, Shilbergs, cited above, § 74, and Shishkin v. Russia, no. 18280/04, § 108, 7 July 2011 ). 83. The Court is mindful that the task of making an estimate of damages to be awarded is a difficult one. It is especially difficult in a case where personal suffering, whether physical or mental, is the subject of the claim. There is no standard by which pain and suffering, physical discomfort and mental distress and anguish can be measured in monetary terms (see Shilbergs, cited above, § 76, and Nardone v. Italy (dec.), no. 34368/02, 25 November 2004). The Court does not doubt that the domestic courts in the present case attempted to assess the level of mental distress and suffering sustained by the applicant as a result of the lack of effectiveness in conducting the criminal proceedings concerning her rape. However, this assessment was by definition limited by the statutory maximum of EUR 5,000, an amount which could not be exceeded regardless of the circumstances of the applicant ’ s case (see paragraphs 30 and 31 above). This amount, however, is substantially lower than the amounts awarded by the Court in other cases involving deficiencies in an investigation and/or a prosecution of cases of sexual abuse committed by private individuals (see M.C. v. Bulgaria, cited above; P.M. v. Bulgaria, cited above; C.A.S. and C.S. v. Romania, no. 26692/05, 20 March 2012; and D.J. v. Croatia, no. 42418/10, 24 July 2012 ). 84. In the Court ’ s opinion the effects of the prolonged uncertainty as to the outcome of the criminal proceedings and related mental distress endured by the applicant over the period of seventeen years, coupled with the short prison sentences imposed on the defendants, are comparable to the breaches found by the Court in the cases cited in the previous paragraph, which should be reflected in the amount of compensation awarded to the applicant. This finding cannot be changed by the fact that the outcome of the present case, in which eight out of ten defendants were eventually convicted and sentenced to imprisonment, was, as pointed out by the Government, favourable to the applicant. 85. Therefore, the Court considers that the compensation awarded to the applicant by the domestic courts did not constitute sufficient redress and thus she may still claim to be a “victim” of a breach of Article 3 of the Convention. 2. Compliance with Article 3 86. Having regard to the above findings, the Court finds that the criminal proceedings regarding the applicant ’ s rape did not comply with the procedural requirements imposed by Article 3. 87. There has been a violation of Article 3 of the Convention in its procedural limb. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 88. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 89. The applicant claimed 20,000 euros (EUR) with statutory default interest payable from 22 May 2006, the date on which she submitted this application to the Court, until settlement in respect of non-pecuniary damage. Moreover, without specifying the amount, the applicant claimed statutory default interest payable over the period from 22 May 2006 until 12 June 2009 in respect of the compensation in the amount of EUR 5,000 she had received in the domestic proceedings. She alleged that the deficiencies in the conduct of the criminal proceedings concerning her rape, in particular the delays and the consequential prolonged uncertainty regarding the outcome of the proceedings, had caused her severe mental distress and unnecessary suffering which, to a large extent, could have been avoided, had the proceedings been conducted in a more effective manner. 90. The Government disputed the applicant ’ s claims, taking the view that her claim was excessive both from the standpoint of similar cases of other affected Member States of the Council of Europe, as well as with regard to the financial burden imposed on the respondent State. 91. The Court reiterates that the amount it will award under the head of non-pecuniary damage under Article 41 may be less than that indicated in its case-law where the applicant has already obtained a finding of a violation at the domestic level and compensation by using a domestic remedy. The Court considers, however, that where an applicant can still claim to be a “victim” after making use of that domestic remedy he or she must be awarded the difference between the amount actually obtained from the national authorities and the figure which, but for the national compensation, the Court would have awarded on equitable principles. 92. Regard being had to the above criteria, and taking into account the gravity and duration of the violation found, as well as the compensation she has received at the domestic level, the Court, deciding in equity, awards the applicant EUR 15 ,0 00. B. Costs and expenses 93. The applicant also claimed EUR 2,652. 50 for costs and expenses incurred before the Court. 94. The Government submitted that the applicant ’ s claim was excessive as to quantum and, moreover, did not contain specification of the costs incurred. Under these circumstances, the Government were of the opinion that no award should be made under this head. 95. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 1,800 for the proceedings before the Court. C. Default interest 96. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a procedural violation of Article 3 (prohibition of inhuman and degrading treatment) of the Convention, finding that the criminal proceedings regarding the applicant’s rape did not comply with the procedural requirements imposed by Article 3. |
1,047 | Professional services (lawyers, doctors, etc.) | II. RELEVANT LEGISLATION AND PRACTICE A. The profession of avocat in Belgium, in general 14. Although it is in various respects regulated by legislation, the profession of avocat in Belgium is a liberal profession; under Article 444 of the Judicial Code, "avocats exercise their profession freely in the interests of justice and truth". 15. In each of the country ’ s twenty-seven judicial districts, there is an Ordre des avocats; it is independent of the executive and endowed with legal personality in public law and its Council takes decisions "without appeal" with regard to entry on the register of avocats and admission to pupillage (Articles 430 and 432 of the Judicial Code). A pupillage normally lasting three years is a pre-requisite to entry on the register of avocats (Article 434 and the second paragraph of Articles 435 and 436). Subject to the powers of the General Council of the National Ordre, the Council of the district Ordre determines the obligations of pupils (Articles 435 and 494). In the main these consist of attending at a pupil-master ’ s chambers, attending hearings, following courses on the rules of professional conduct and the art of advocacy (Article 456, third paragraph) and acting as defence counsel in cases assigned by the Legal Advice and Defence Office (Article 455). The Council of the Ordre ensures that these obligations are complied with and may, if need be, prolong the pupillage "without prejudice to the right to refuse entry on the register"; any pupil who is unable, after five years at the latest, to show that he or she has satisfied the said obligations "may be omitted from the roll" of pupils (Article 456, second and fourth paragraphs). Pupils in principle enjoy the same rights as their colleagues who are already entered on the register of avocats. However, they may not plead before the Court of Cassation or the Conseil d ’ État (Article 439), vote in elections of the chairman or other members of the Council of the Ordre (Article 450) or deputise for judges and members of the public prosecutor ’ s department. 16. In the oath that he takes at the end of his pupillage, the avocat undertakes, amongst other things, not to advise or appear in any case which he does not consider to the best of his knowledge and belief to be just (Article 429). Subject to the exceptions provided for by law, for example in Article 728 of the Judicial Code and Article 295 of the Code of Criminal Procedure, avocats - including pupil avocats - enjoy an exclusive right of audience before the courts (Article 440 of the Judicial Code). They pay a subscription to the Ordre (Article 443) and social security contributions. 17. The Council of the Ordre sanctions or punishes as a disciplinary matter offences and misconduct, without prejudice, where appropriate, to proceedings before the courts (Article 456, first paragraph). It will hear disciplinary cases on application made by its chairman, either of his own motion or following a complaint or after a written notification from the procureur général (public prosecutor) (Article 457). The Council may, depending on the circumstances, warn, censure, reprimand, suspend for a maximum of one year or strike a name off the register of avocats or the roll of pupils (Article 460). Both the avocat concerned and the procureur général may challenge such a decision - finding the avocat guilty or not guilty - by applying to the competent disciplinary appeal board (Articles 468 and 472). The disciplinary appeal board is composed of a chairman (who is the first president of the Court of Appeal or a president of a chamber delegated by him), four assessors (who are avocats) and a secretary (who is a member or former member of the Council of the Ordre des avocats); the procureur général or a judicial officer from his department delegated by him fulfils the functions of prosecuting authority (Articles 473 and 475). The avocat concerned or the procureur général may refer the decision of the disciplinary appeal board to the Court of Cassation (Article 477). B. Officially appointed avocats 1. At the time of the facts in issue 18. In Belgium, as in many other Contracting States, there exists a long tradition that the Bar should provide legal representation, if need be on a free basis, for indigent persons. At the time of the relevant facts, the Council of the Ordre des avocats was under a duty to make provision for "the assistance of persons of insufficient means" by setting up a "Legal Advice and Defence Office" in such manner as it should determine (Article 455, first paragraph, of the Judicial Code). "Obviously ill-founded cases [were not to] be allocated" (second paragraph of the same Article), but in criminal matters the Legal Advice and Defence Office had to make an officially appointed - or "pro Deo" - avocat available to any indigent accused who so requested at least three days before the hearing (Article 184 bis of the Code of Criminal Procedure). Officially appointed avocats were thus designated by the Office by virtue of a statutory competence conferred by the State. In Antwerp and Liège a system of rotation was used whereas in Brussels the matter was dealt with on a more flexible basis. The Office almost always selected pupil avocats who, if need be, had to continue acting in the case even after the end of their pupillage, as occurred in the present circumstances (see paragraph 12 above). It nonetheless happened - in less than one per cent of the cases - that a difficult case was entrusted to a more experienced avocat. 19. Under the third paragraph of Article 455 of the Judicial Code, pupil avocats were required to "report to the [Legal Advice and Defence] Office on the steps they [had] taken in the cases entrusted to them"; such cases accounted on average for approximately one quarter of their working time, especially during their third year. The Ordres des avocats would decline to enter a pupil avocat on the register unless he had acted as officially appointed avocat on a sufficient number of occasions; the Antwerp Ordre enjoyed considerable discretion in the matter since no minimum or maximum was laid down in its pupillage regulations. Pupil avocats could invoke the so-called "conscience clause" laid down in Article 429 of the Judicial Code (see paragraph 16 above) or objective grounds of incompatibility. In the event of an unjustified refusal to deal with cases that the Office wished to allocate to him, the Council of the Ordre could extend the pupillage of a pupil avocat to a maximum period of five years, strike his name off the roll of pupils or refuse his application for entry on the register of avocats for failure to perform fully his obligations (Article 456, second and fourth paragraphs). 20. Officially appointed avocats were entitled neither to remuneration nor to reimbursement of their expenses. Nevertheless, the Legal Advice and Defence Office could, "depending upon the circumstances, .... fix the amount which the [assisted] party [was] required to pay either by way of advance provision or as fees" (Article 455, final paragraph, of the Judicial Code). In practice such awards tended to be somewhat exceptional - in approximately one case out of four at Antwerp - and, what is more, pupil avocats only succeeded in actually recovering a fraction - roughly one quarter - of the amounts so fixed. 2. The Act of 9 April 1980 21. The position described in the preceding paragraph has changed in one respect subsequent to the end of the applicant ’ s pupillage: an Act of 9 April 1980 "intended to furnish a partial solution to the problem of legal aid and regulating the remuneration of pupil avocats appointed to provide legal aid" has amended Article 455 by, inter alia, inserting the following provisions: "The State shall grant to the pupil avocat appointed by the Legal Advice and Defence Office compensation in respect of the services which he was appointed to render. After obtaining the opinion of the General Council of the National Ordre des avocats, the King shall prescribe, by Decree laid before the Council of Ministers, the conditions governing the granting, scale and manner of payment of such compensation." In certain circumstances, the State will be able to take action against the assisted person to recover the compensation awarded. The Act is not retroactive. Furthermore, for the moment it remains inoperative since budgetary reasons have up till now prevented the bringing into force of the Royal Decree provided for under Article 455. C. Official appointment, official assignment, legal aid 22. The official appointment of an avocat should not be confused with two other possibilities which are likewise often included in the notion of legal aid, namely - "official assignment", which is provided for under the law in various circumstances where the intervention of an avocat is obligatory, independently of the means of the person concerned (Articles 446, second paragraph, and 480 of the Judicial Code, Article 290 of the Code of Criminal Procedure, etc.); - "legal aid" in the narrow sense, which "consists of exempting, in whole or in part, persons whose income is insufficient to meet the costs of proceedings, including extrajudicial proceedings, from paying stamp duty, registration duty, registry and copying fees and any other expenditure involved", and of providing "the services of public and publicly appointed officers free" for such persons (Articles 664 and 699 of the Judicial Code). D. Legal aid and public or publicly appointed officers 23. Indigent persons requiring the services of notaries, bailiffs or avocats of the Court of Cassation may apply for the appointment by the Legal Aid Bureau (see paragraph 22 above) of the persons who are under a duty to give their services free of charge (Articles 664, 665, 685 and 686 of the Judicial Code). The State reimburses the latter persons for their out-of-pocket expenditure (Article 692) but grants no remuneration, the one exception being bailiffs who receive the equivalent of one quarter of their usual fees (Article 693). PROCEEDINGS BEFORE THE COMMISSION 24. In his application of 7 March 198O to the Commission (no. 8919/80), Mr. Van der Mussele called in question his appointment by the Antwerp Legal Advice and Defence Office to assist Mr. Njie Ebrima; he complained, not of this appointment as such, but because a refusal to act would have made him liable to sanctions and because he had not been entitled to any remuneration or reimbursement of his expenses. In his submission, these circumstances gave rise both to "forced or compulsory labour" contrary to Article 4 § 2 (art. 4-2) of the Convention and to treatment incompatible with Article 1 of Protocol No. 1 (P1-1). He further claimed that, in breach of Article 14 of the Convention taken in conjunction with Article 4 (art. 14+4), there was discrimination in this respect between avocats and certain other professions. 25. The Commission declared the application admissible on 17 March 1981. In its report of 3 March 1982 (Article 31 of the Convention) (art. 31), the Commission concluded that there had been no breach of - Article 4 § 2 (art. 4-2) of the Convention, by ten votes to four; - Article 1 of Protocol No. 1 (P1-1), by nine votes to five; - Article 14 of the Convention, taken in conjunction with the two above-mentioned Articles (art. 14+4-2, art. 14+P1-1), by seven votes to seven, with the casting vote of the President (Rule 18 § 3 of the Commission ’ s Rules of Procedure). The report contains two dissenting opinions. FINAL SUBMISSIONS MADE TO THE COURT BY THE GOVERNMENT 26. At the hearings on 22 February 1983, counsel for the Government reaffirmed in substance the final submissions set out in the memorial of 25 November 1982 in which the Government requested the Court to hold "that Mr. Van der Mussele has not been the victim of any violation of the rights guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms, and that accordingly application no. 8919/80 lodged by him is without foundation". AS TO THE LAW I. SCOPE OF THE PRESENT CASE 27. Mr. Van der Mussele complained essentially of the fact that he had been required to defend Mr. Ebrima without receiving any remuneration or being reimbursed his expenses. This was, in his eyes, a typical example that he had selected in order to call in question the obligations imposed on Belgian avocats, and in particular on pupil avocats, in connection with pro Deo cases. He mentioned similar appointments in about fifty other cases, but formally speaking his grievances do not relate to those other appointments. In proceedings originating in an "individual" application (Article 25 of the Convention) (art. 25), the Court has to confine its attention, as far as possible, to the issues raised by the concrete case before it. However, it appears from the material before the Court that the appointment complained of cannot be reviewed from the standpoint of the Convention without putting it in the general context both of the relevant Belgian legislation applicable at the time and of the practice followed thereunder; the Commission ’ s Delegates rightly drew attention to this. II. RESPONSIBILITY OF THE BELGIAN STATE 28. Before the Commission and in their memorial to the Court, the Government submitted that there was no primary or subordinate legislation that obliged avocats to accept work entrusted to them by a Legal Advice and Defence Office: their duty to act for indigent persons was said to derive solely from professional rules freely adopted by the Ordres des avocats themselves. According to the Government, the Belgian State did not prescribe either how appointments were to be made or their effects; it was therefore not answerable for any infringements of the Convention ’ s guarantees that might be occasioned by implementation of the professional rules. 29. This argument, to which counsel for the Government did not revert at the hearings before the Court, was not accepted by the applicant or the Commission. Neither does it convince the Court. Under the Convention, the obligation to grant free legal assistance arises, in criminal matters, from Article 6 § 3 (c) (art. 6-3-c); in civil matters, it sometimes constitutes one of the means of ensuring a fair trial as required by Article 6 § 1 (art. 6-1) (see the Airey judgment of 9 October 1979, Series A no. 32, pp. 14-16, § 26). This obligation is incumbent on each of the Contracting Parties. The Belgian State - and this was not contested by the Government - lays the obligation by law on the Ordres des avocats, thereby perpetuating a state of affairs of long standing; under Article 455, first paragraph, of the Judicial Code, the Councils of the Ordres are to make provision for the assistance of indigent persons by setting up Legal Advice and Defence Offices (see paragraph 18 above). As was pointed out by the applicant, the Councils have "no discretion as regards the principle itself": legislation "compels them to compel" members of the Bar to "defend indigent persons". Such a solution cannot relieve the Belgian State of the responsibilities it would have incurred under the Convention had it chosen to operate the system itself. Moreover, the Government recognised at the hearings that "the obligation", for pupil avocats, "to act as defence counsel in cases assigned by the Legal Advice and Defence Office" arose from Article 455 of the Judicial Code; in paragraph 21 of their memorial, they had already conceded that Belgian law, by not making any provision for indemnifying pupil avocats, acknowledged at least implicitly that the latter have to bear the expenses incurred in dealing with the cases in question. In addition, the Belgian Bars, bodies that are associated with the exercise of judicial power, are, without prejudice to the basic principle of independence necessary for the accomplishment of their important function in the community, subject to the requirements of the law. The relevant legislation states their objects and establishes their institutional organs; it endows with legal personality in public law each of the Councils of the twenty-seven local Ordres and the General Council of the National Ordre (see paragraph 15 above). 30. The responsibility of the Belgian State being thus engaged in the present case, it has to be ascertained whether that State complied with the provisions of the Convention and of Protocol No. 1 art. 4, art. 14, P1-1) relied on by Mr. Van der Mussele. III. ALLEGED VIOLATION OF ARTICLE 4 OF THE CONVENTION, TAKEN ALONE (art. 4) 31. The applicant maintained that he had had to perform forced or compulsory labour incompatible with Article 4 (art. 4) of the Convention. Under that Article (art. 4): "1. ... 2. No one shall be required to perform forced or compulsory labour. 3. For the purpose of this Article (art. 4) the term "forced or compulsory labour" shall not include: (a) any work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 (art. 5) of this Convention or during conditional release from such detention; (b) any service of a military character or, in case of conscientious objectors in countries where they are recognised, service exacted instead of compulsory military service; (c) any service exacted in case of an emergency or calamity threatening the life or well-being of the community; (d) any work or service which forms part of normal civic obligations." Four members of the Commission considered that this had been the case, but a majority of ten of their colleagues arrived at the opposite conclusion. The Government contended, as their principal submission, that the labour in question was not "forced or compulsory" or, in the alternative, that it formed part of the applicant ’ s "normal civic obligations". 32. Article 4 (art. 4) does not define what is meant by "forced or compulsory labour" and no guidance on this point is to be found in the various Council of Europe documents relating to the preparatory work of the European Convention. As the Commission and the Government pointed out, it is evident that the authors of the European Convention - following the example of the authors of Article 8 of the draft International Covenant on Civil and Political Rights - based themselves, to a large extent, on an earlier treaty of the International Labour Organisation, namely Convention No. 29 concerning Forced or Compulsory Labour. Under the latter Convention (which was adopted on 28 June 1930, entered into force on 1 May 1932 and was modified - as regards the final clauses - in 1946), States undertook "to suppress the use of forced or compulsory labour in all its forms within the shortest possible period" (Article 1 § 1); with a view to "complete suppression" of such labour, States were permitted to have recourse thereto during a "transitional period", but "for public purposes only and as an exceptional measure, subject to the conditions and guarantees" laid down in Articles 4 et seq. (Article 1 § 2). The main aim of the Convention was originally to prevent the exploitation of labour in colonies, which were still numerous at that time. Convention No. 105 of 25 June 1957, which entered into force on 17 January 1959, complemented Convention No. 29, by prescribing "the immediate and complete abolition of forced or compulsory labour" in certain specified cases. Subject to Article 4 § 3 (art. 4-3), the European Convention, for its part, lays down a general and absolute prohibition of forced or compulsory labour. The Court will nevertheless take into account the above-mentioned ILO Conventions - which are binding on nearly all the member States of the Council of Europe, including Belgium - and especially Convention No. 29. There is in fact a striking similarity, which is not accidental, between paragraph 3 of Article 4 (art. 4-3) of the European Convention and paragraph 2 of Article 2 of Convention No. 29. Paragraph 1 of the last-mentioned Article provides that "for the purposes" of the latter Convention, the term "forced or compulsory labour" shall mean "all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily". This definition can provide a starting-point for interpretation of Article 4 (art. 4) of the European Convention. However, sight should not be lost of that Convention ’ s special features or of the fact that it is a living instrument to be read "in the light of the notions currently prevailing in democratic States" (see, inter alia, the Guzzardi judgment of 6 November 1980, Series A no. 39, p. 34, § 95). 33. It was common ground between those appearing before the Court that the services rendered by Mr. Van der Mussele to Mr. Ebrima amounted to "labour" for the purposes of Article 4 § 2 (art. 4-2). It is true that the English word "labour" is often used in the narrow sense of manual work, but it also bears the broad meaning of the French word "travail" and it is the latter that should be adopted in the present context. The Court finds corroboration of this in the definition included in Article 2 § 1 of Convention No. 29 ("all work or service", "tout travail ou service"), in Article 4 § 3 (d) (art. 4-3-d) of the European Convention ("any work or service", "tout travail ou service") and in the very name of the International Labour Organisation (Organisation internationale du Travail), whose activities are in no way limited to the sphere of manual labour. 34. It remains to be ascertained whether there was "forced or compulsory" labour. The first of these adjectives brings to mind the idea of physical or mental constraint, a factor that was certainly absent in the present case. As regards the second adjective, it cannot refer just to any form of legal compulsion or obligation. For example, work to be carried out in pursuance of a freely negotiated contract cannot be regarded as falling within the scope of Article 4 (art. 4) on the sole ground that one of the parties has undertaken with the other to do that work and will be subject to sanctions if he does not honour his promise. On this point, the minority of the Commission agreed with the majority. What there has to be is work "exacted ... under the menace of any penalty" and also performed against the will of the person concerned, that is work for which he "has not offered himself voluntarily". 35. The definition given in Article 2 § 1 of ILO Convention No. 29 leads the Court to inquire firstly whether there existed in the circumstances of the present case "the menace of any penalty". Had Mr. Van der Mussele refused without good reason to defend Mr. Ebrima, his refusal would not have been punishable with any sanction of a criminal character. On the other hand, he would have run the risk of having the Council of the Ordre strike his name off the roll of pupils or reject his application for entry on the register of avocats (see paragraph 19 above); these prospects are sufficiently daunting to be capable of constituting "the menace of [a] penalty", having regard both to the use of the adjective "any" in the definition and to the standards adopted by the ILO on this point ("Abolition of Forced Labour": General Survey by the Committee of Experts on Application of Conventions and Recommendations, 1979, paragraph 21). 36. It must next be determined whether the applicant "offered himself voluntarily" for the work in question. According to the majority of the Commission, the applicant had consented in advance to the situation he complained of, so that it ill became him to object to it subsequently. Their argument ran as follows. On the eve of embarking on his career, the future avocat will make "a kind of prospective assessment": he will weigh up the pros and cons, setting the "advantages" of the profession against the "drawbacks" it entails. And here the drawbacks were "perfectly foreseeable" by the future avocat since he was not unaware either of the existence or of the scope of the obligations he would have to bear as regards defending clients free of charge, obligations that were "limited" both in quantity (about fourteen cases each year) and in time (the period of pupillage). He also had knowledge of the corresponding advantages: the freedom he would enjoy in carrying out his duties and the opportunity he would have of familiarising himself with life in the courts and of "establishing for himself a paying clientele". One of the distinctive features of compulsory labour was therefore lacking and this was sufficient to establish that there had not been a violation of Article 4 § 2 (art. 4-2). This argument, which was supported by the Government, correctly reflects one aspect of the situation; nevertheless, the Court cannot attach decisive weight thereto. Mr. Van der Mussele undoubtedly chose to enter the profession of avocat, which is a liberal profession in Belgium, appreciating that under its rules he would, in accordance with a long-standing tradition, be bound on occasions to render his services free of charge and without reimbursement of his expenses. However, he had to accept this requirement, whether he wanted to or not, in order to become an avocat and his consent was determined by the normal conditions of exercise of the profession at the relevant time. Nor should it be overlooked that what he gave was an acceptance of a legal régime of a general character. The applicant ’ s prior consent, without more, does not therefore warrant the conclusion that the obligations incumbent on him in regard to legal aid did not constitute compulsory labour for the purposes of Article 4 § 2 (art. 4-2) of the Convention. Account must necessarily also be taken of other factors. 37. On the basis of jurisprudence of its own which dates back to 1963 (admissibility decision on application no. 1468/62, Iversen v. Norway, Yearbook of the Convention, vol. 6, pp. 327-329) and which it has subsequently re-affirmed, the Commission expressed the opinion that for there to be forced or compulsory labour, for the purposes of Article 4 § 2 (art. 4-2) of the European Convention, two cumulative conditions have to be satisfied: not only must the labour be performed by the person against his or her will, but either the obligation to carry it out must be "unjust" or "oppressive" or its performance must constitute "an avoidable hardship", in other words be "needlessly distressing" or "somewhat harassing". After examining the issue "as a supplementary consideration", the Commission concluded by a majority that the second condition was no more satisfied than the first condition. The Court would observe that the second criterion thus applied is not stated in Article 2 § 1 of ILO Convention No. 29. Rather it is a criterion that derives from Article 4 and the following Articles of that Convention, which are not concerned with the notion of forced or compulsory labour but lay down the requirements to be met for the exaction of forced or compulsory labour during the transitional period provided for under Article 1 § 2 (see "ILO-internal minute - January 1966", paragraph 2). Be that as it may, the Court prefers to adopt a different approach. Having held that there existed a risk comparable to "the menace of [a] penalty" (see paragraph 35 above) and then that relative weight is to be attached to the argument regarding the applicant ’ s "prior consent" (see paragraph 36 above), the Court will have regard to all the circumstances of the case in the light of the underlying objectives of Article 4 (art. 4) of the European Convention in order to determine whether the service required of Mr. Van der Mussele falls within the prohibition of compulsory labour. This could be so in the case of a service required in order to gain access to a given profession, if the service imposed a burden which was so excessive or disproportionate to the advantages attached to the future exercise of that profession, that the service could not be treated as having been voluntarily accepted beforehand; this could apply, for example, in the case of a service unconnected with the profession in question. 38. The structure of Article 4 (art. 4) is informative on this point. Paragraph 3 (art. 4-3) is not intended to "limit" the exercise of the right guaranteed by paragraph 2 (art. 4-2), but to "delimit" the very content of this right, for it forms a whole with paragraph 2 (art. 4-2) and indicates what "the term ‘ forced or compulsory labour ’ shall not include" (ce qui "n ’ est pas considéré comme ‘ travail forcé ou obligatoire ’ "). This being so, paragraph 3 (art. 4-3) serves as an aid to the interpretation of paragraph 2 (art. 4-2). The four sub-paragraphs of paragraph 3 (art. 4-3-a, art. 4-3-b, art. 4-3-c, art. 4-3-d), notwithstanding their diversity, are grounded on the governing ideas of the general interest, social solidarity and what is in the normal or ordinary course of affairs. The final sub-paragraph, namely sub-paragraph (d) (art. 4-3-d) which excludes "any work or service which forms part of normal civil obligations" from the scope of forced or compulsory labour, is of especial significance in the context of the present case. 39. When viewed in the light of the foregoing considerations, the circumstances complained of can be seen to be characterised by several features, each of which provides a standard of evaluation. The services to be rendered did not fall outside the ambit of the normal activities of an avocat; they differed from the usual work of members of the Bar neither by their nature nor by any restriction of freedom in the conduct of the case. Secondly, a compensatory factor was to be found in the advantages attaching to the profession, including the exclusive right of audience and of representation enjoyed by avocats in Belgium as in several other countries (see paragraph 16 above); the exceptions to which the applicant drew attention (ibid.) do not divest the rule of its substance. In addition, the services in question contributed to the applicant ’ s professional training in the same manner as did the cases in which he had to act on the instructions of paying clients of his own or of his pupil-master. They gave him the opportunity to enlarge his experience and to increase his reputation. In this respect, a certain degree of personal benefit went hand in hand with the general interest which was foremost. Moreover, the obligation to which Mr. Van der Mussele objected constituted a means of securing for Mr. Ebrima the benefit of Article 6 § 3 (c) (art. 6-3-c) of the Convention. To this extent, it was founded on a conception of social solidarity and cannot be regarded as unreasonable. By the same token, it was an obligation of a similar order to the "normal civic obligations" referred to in Article 4 § 3 (d) (art. 4-3-d). The Court is not required on the present occasion to rule on the correctness of the argument of the minority of the Commission to the effect that the almost routine allocation of pro-Deo cases to pupil avocats might not be fully consonant with the need to provide effective legal aid to impecunious litigants (see the Artico judgment of 13 May 198O, Series A no. 37, pp. 15-16, § 33). Finally, the burden imposed on the applicant was not disproportionate. According to his own evidence, acting for Mr. Ebrima accounted for only seventeen or eighteen hours of his working time (see paragraph 11 above). Even if one adds to this the other cases in which he was appointed to act during his pupillage - about fifty in three years, representing, so he said, a total of some seven hundred and fifty hours (see paragraph 13 above) -, it can be seen that there remained sufficient time for performance of his paid work (approximately two hundred cases). 40. In point of fact, the applicant did not challenge the principle, as such, of the obligation in question; his complaint was limited to two aspects of the manner in which the obligation was implemented, namely the absence of fees and more especially the non-reimbursement of incurred expenditure (see paragraphs 12, 20 and 24 above). He felt it unjust - and on this the minority of the Commission concurred with him - to entrust the free representation of the most needy citizens to pupil avocats who themselves were in receipt of insufficient resources and to make them bear the cost of a public service instituted by law. He drew attention to the fact that for many years the successive chairmen of the Ordre des avocats in Belgium have regarded such a state of affairs as intolerable. For their part, the Government acknowledged that the practice complained of was inspired by a "paternalism" that was now "outmoded". They asserted that the traditional stance of a profession jealous of its independence accounted for the fact that Belgium had delayed in "endeavouring", by means of the Act of 9 April 1980 (see paragraph 21 above), "to bring its standards" in this sphere to "the level of other States, notably European": until recent times, so the Government stated, the Bar had viewed with "distrust" State-payment of pupil avocats, the idea of an official scale of fees inspiring deep-rooted hostility amongst its members. The Commission also described as unfortunate a legal situation which in its opinion, while being compatible with Article 4 (art. 4), no longer meets "the requirements of modern life". Pointing out that if pupil avocats were remunerated their professional training would not suffer thereby, the Commission expressed the wish for a prompt and effective implementation of the Act of 9 April 1980. The Court has not overlooked this aspect of the problem. While remunerated work may also qualify as forced or compulsory labour, the lack of remuneration and of reimbursement of expenses constitutes a relevant factor when considering what is proportionate or in the normal course of affairs. In this connection, it is noteworthy that the respective laws of numerous Contracting States have evolved or are evolving, albeit in varying degrees, towards the assumption by the public purse of the cost of paying lawyers or trainee lawyers appointed to act for indigent litigants. The Belgian Act of 9 April 1980 is an example of this development; that Act, once it has been implemented, should bring about a significant improvement, without thereby threatening the independence of the Bar. At the relevant time, the state of affairs complained of undoubtedly caused Mr. Van der Mussele some prejudice by reason of the lack of remuneration and of reimbursement of expenses, but that prejudice went hand in hand with advantages (see paragraph 39 above) and has not been shown to be excessive. The applicant did not have a disproportionate burden of work imposed on him (ibid.) and the amount of expenses directly occasioned by the cases in question was relatively small (see paragraph 12 above). The Court would recall that Mr. Van der Mussele had voluntarily entered the profession of avocat with knowledge of the practice complained of. This being so, a considerable and unreasonable imbalance between the aim pursued - to qualify as an avocat - and the obligations undertaken in order to achieve that aim would alone be capable of warranting the conclusion that the services exacted of Mr. Van der Mussele in relation to legal aid were compulsory despite his consent. No such imbalance is disclosed by the evidence before the Court, notwithstanding the lack of remuneration and of reimbursement of expenses - which in itself is far from satisfactory. Having regard, furthermore, to the standards still generally obtaining in Belgium and in other democratic societies, there was thus no compulsory labour for the purposes of Article 4 § 2 (art. 4-2) of the Convention. 41. In view of this conclusion, the Court need not determine whether the work in question was in any event justified under Article 4 § 3 (d) (art. 4-3-d) as such and, in particular, whether the notion of "normal civic obligations" extends to obligations incumbent on a specific category of citizens by reason of the position they occupy, or the functions they are called upon to perform, in the community. IV. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION, TAKEN TOGETHER WITH ARTICLE 4 (art. 14+4) 42. The applicant also invoked Article 14 read in conjunction with Article 4 (art. 14+4). Article 14 (art. 14) provides as follows: "The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status." 43. Article 14 (art. 14) complements the other substantive provisions of the Convention and the Protocols. It may be applied in an autonomous manner as breach of Article 14 (art. 14) does not presuppose breach of those other provisions. On the other hand, it has no independent existence since it has effect solely in relation to "the enjoyment of the rights and freedoms" safeguarded by the other substantive provisions (see, inter alia, the Marckx judgment of 13 June 1979, Series A no. 31, pp. 15-16, § 32). As the Court has found that there was no forced or compulsory labour for the purposes of Article 4 (art. 4), the question arises whether the facts in issue fall completely outside the ambit of that Article (art. 4) and, hence, of Article 14 (art. 14). However, such reasoning would be met by one major objection. The criteria which serve to delimit the concept of compulsory labour include the notion of what is in the normal course of affairs (see paragraph 38 above). Work or labour that is in itself normal may in fact be rendered abnormal if the choice of the groups or individuals bound to perform it is governed by discriminatory factors, which was precisely what the applicant contended had occurred in the present circumstances. Consequently, this is not a case where Article 14 (art. 14) should be held inapplicable; the Government, moreover, did not contest the point. 44. In a memorial of 27 October 1980 filed before the Commission, Mr. Van der Mussele stated that he was not complaining of any discrimination between pupil avocats and avocats entered on the register He did not alter his attitude before the Court, and the Court sees no reason for examining the issue of its own motion. 45. On the other hand, in the applicant ’ s submission, Belgian avocats are subject, in respect of the matters under consideration, to less favourable treatment than that of members of a whole series of other professions. In legal aid cases, the State accords remuneration to judges and registrars, pays the emoluments of interpreters (Article 184 bis of the Code of Criminal Procedure and Article 691 of the Judicial Code) and, "in lieu of the legally aided person", advances "the travel and subsistence expenses of judicial, public or publicly appointed officers, the costs and fees of experts, the allowances of witnesses ..., the disbursements and one quarter of the salaries of bailiffs as well as the disbursements of other public or publicly appointed officers" (Article 692 of the Judicial Code and paragraph 23 above). Medical practitioners, veterinary surgeons, pharmacists and dentists, for their part, are not required to provide their services free of charge to indigent persons. According to the applicant, these all represented instances of arbitrary inequality, being devoid of any "objective and reasonable justification" (see the judgment of 23 July 1968 in the "Belgian Linguistic" case, Series A no. 6, p. 34, § 10); they thereby contravened Articles 14 and 4 (art. 14+4) taken together. The minority of the Commission shared this view, at least to a large extent. 46. Article 14 (art. 14) safeguards individuals, placed in analogous situations, from discrimination (see the above-mentioned Marckx judgment, Series A no. 31, p. 15, § 32). Yet between the Bar and the various professions cited by the applicant, including even the judicial and parajudicial professions, there exist fundamental differences to which the Government and the majority of the Commission rightly drew attention, namely differences as to legal status, conditions for entry to the profession, the nature of the functions involved, the manner of exercise of those functions, etc. The evidence before the Court does not disclose any similarity between the disparate situations in question: each one is characterised by a corpus of rights and obligations of which it would be artificial to isolate one specific aspect. On the basis of the applicant ’ s grievances, the Court accordingly does not find any breach of Articles 14 and 4 taken together (art. 14+4). V. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 (P1-1) 47. Mr. Van der Mussele finally relied on Article 1 of Protocol No. 1 (P1-1), which reads: "Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties." 48. His arguments do not bear examination in so far as they relate to the absence of remuneration. The text set out above is limited to enshrining the right of everyone to the peaceful enjoyment of "his" possessions; it thus applies only to existing possessions (see, mutatis mutandis, the above-mentioned Marckx judgment, Series A no. 31, p. 23, § 50). In the instant case, however, the Legal Advice and Defence Office of the Antwerp Bar decided on 18 December 1979 that no assessment of fees could be made, because of Mr. Ebrima ’ s lack of means (see paragraph 12 above). It follows, as the Commission unanimously inferred, that no debt in favour of the applicant ever arose in this respect. Consequently, under this head, there is no scope for the application of Article 1 of Protocol No. 1 (P1-1), whether taken on its own or together with Article 14 (art. 14+P1-1) of the Convention; moreover, Mr. Van der Mussele invoked the latter Article solely in conjunction with Article 4 (art. 14+4). 49. The matter cannot be put in the same terms as far as the non-reimbursement of expenses is concerned, since Mr. Van der Mussele was required to pay certain sums out of his own pocket in this connection (see paragraph 12 above). That does not suffice, however, to warrant the conclusion that Article 1 of Protocol No. 1 (P1-1) is applicable. In many cases, a duty prescribed by law involves a certain outlay for the person bound to perform it. To regard the imposition of such a duty as constituting in itself an interference with possessions for the purposes of Article 1 of Protocol No. 1 (P1-1) would be giving the Article a far-reaching interpretation going beyond its object and purpose. The Court sees no valid cause to think otherwise in the instant case. The expenses in question were incurred by Mr. Van der Mussele in acting for his pro Deo clients. Although in no wise derisory (the epithet bestowed on them by the Government), these expenses were relatively small and resulted from the obligation to perform work compatible with Article 4 (art. 4) of the Convention. Article 1 of Protocol No. 1 (P1-1), whether taken alone or in conjunction with Article 14 (art. 14+P1-1) of the Convention, is thus not applicable in this connection. | The Court found no violation of Article 4 (prohibition of forced labour) of the Convention. The free legal aid service the applicant was asked to provide was connected with his profession, he received certain advantages for it, like the exclusive right to audience in the courts, and it contributed to his professional training; it was related to another Convention right – Article 6 § 1 (right to a fair trial) – and could be considered part of “normal civic obligations” allowed under Article 4 § 3 of the Convention. Finally, being required to defend people without being paid for it did not leave the applicant without sufficient time for paid work. |
13 | Compulsory childhood vaccination | RELEVANT LEGAL FRAMEWORK AND PRACTICE DOMESTIC LAW AND PRACTICEDomestic lawCharter of Fundamental Rights and Freedoms (Constitutional Law no.2/1993 Coll.) Domestic lawCharter of Fundamental Rights and Freedoms (Constitutional Law no.2/1993 Coll.) Charter of Fundamental Rights and Freedoms (Constitutional Law no.2/1993 Coll.) Domestic lawCharter of Fundamental Rights and Freedoms (Constitutional Law no.2/1993 Coll.) Charter of Fundamental Rights and Freedoms (Constitutional Law no.2/1993 Coll.) Charter of Fundamental Rights and Freedoms (Constitutional Law no.2/1993 Coll.) 65. In so far as relevant, Article 4 provides: “1. Duties may be imposed only on the basis and within the bounds of the law and only if the fundamental rights and freedoms of the individual are respected. 2. Limitations may be placed upon fundamental rights and freedoms only by the law and under the conditions prescribed in [this Charter].” 66. Pursuant to Article 7 § 1: “The inviolability of the person and of his or her private life shall be guaranteed. It may only be restricted in the cases provided for by law.” 67. The relevant part of Article 15 § 1 reads as follows: “Freedom of thought, conscience and religious conviction shall be guaranteed. ...” 68. Under Article 16 § 1: “Everybody has the right to manifest freely his or her religion or faith, alone or jointly with others, privately or in public, through religious service, instruction, religious practice, or religious rites.” 69. Article 31 provides that: “Everyone shall have the right to the protection of his or her health. Citizens shall have the right, on the basis of public insurance, to free health care and to health aids under the conditions provided for by law.” 70. As to the scope of the second sentence of Article 31, the Constitutional Court held (constitutional judgment of 10 July 1996, published in the Collection of Laws under no. 206/1996) that its content is limited to what is covered by public insurance, which in turn depends on the amount of the insurance premiums collected. All of the relevant Chapter of the Charter depends on the economic and social level achieved by the State and the attendant standard of living. 71. Under Article 33 § 1: “Everybody shall have the right to education. School attendance shall be mandatory for the period specified by law.” 72. Pursuant to the relevant part of Article 41 § 1; “[The right to education under Article 33] can be relied on only within the scope of the laws adopted for the implementation of that provision.” Public Health Protection Act (Law no. 258/2000 Coll., as amended) 73. This legislation sets out the general framework for vaccination, defining its purpose, personal scope, vaccine types, the conditions for administering vaccination as well as for assessing immunity, and other matters. Section 46(1) and (6) provides for the adoption by the Ministry of Health of implementing measures, regulating in greater detail matters such as the classification of vaccines, the timing of injections and other conditions for the administration of vaccinations, and methods for checking immunity (see below). Moreover, it provides that day-care facilities for children up to the age of three and other types of preschool facilities (i.e. those that receive children until the school year following the date on which they reach the age of six) may only accept children who have received the required vaccinations, or who have been certified as having acquired immunity by other means or as being unable to undergo vaccination due to a permanent contraindication (section 50). Decree on Vaccination against Infectious Diseases 74. As provided for in the PHP Act, the Ministry adopted the Decree on Vaccination against Infectious Diseases. In the period under consideration in the present case, there were two successive Decrees in force: Decree no. 439/2000 Coll., as amended, until 31 December 2006, replaced by Decree no. 537/2006 Coll., as amended, from 1 January 2007 onwards. Since the provisions that are relevant to the present case are essentially identical in both instruments, further references to the Decree in this judgment mean the 2006 Decree, unless otherwise indicated. 75. The Decree determines the classification of vaccinations, the conditions for the administration of vaccines and the methods for examining immunity (section 1 (a)). 76. It defines the scope of compulsory vaccination as comprising vaccination against diphtheria, tetanus, whooping cough (pertussis), Haemophilus influenzae type b infections, poliomyelitis, hepatitis B, measles, mumps, rubella and – for children with specified health indications – pneumococcal infections (sections 4, 5 and 6). 77. The Decree also defines the sequence in which the vaccinations are to be administered, normally starting from the ninth week after birth, with at least two months between the first two rounds of vaccination and the third round being administered between the ages of eleven and thirteen months (sections 4 and 5). In the case of some illnesses, initial vaccination (section 2(2)(a)) is to be followed by booster vaccination (section 2(2)(b)). Pharmaceutical Drugs and Medications Act (Law no. 378/2007 Coll.) 78. Sections 25 to 50 regulate the registration of pharmaceutical drugs, including vaccines, by the State Agency for Drug Control. 79. Under section 93b(1), all doctors, dentists and other health care workers have to report to the above Agency any suspected serious or unexpected side-effects of pharmaceutical drugs, on pain of a fine of up to CZK 300,000 pursuant to section 108(7) (currently equivalent to some EUR 11,350). Education Act (Law no. 561/2004 Coll., as amended) 80. Section 33 defines the aim of preschool education as being to support the development of the personality of the child of preschool age. Such education plays a role in the healthy emotional, intellectual and physical development of children, in their acquisition of basic rules of conduct and fundamental life values, and in their developing of interpersonal relations. Preschool education provides the basic preconditions for continuing with education. It assists in equalising differences in the development of children before entering basic education and provides adapted pedagogical care to children with special educational needs. 81. Section 34(1) provides that preschool education is organised for children who are generally aged from three to six, but not younger than two. A child younger than two is not entitled to admission to nursery school. This provision was amended with effect from 1 September 2017, making preschool education mandatory from the beginning of the school year following the child’s fifth birthday until the beginning of mandatory school attendance. Paragraph 5 of this section includes among the conditions for school admission the vaccination requirement under section 50 of the PHP Act (see paragraph 73 above). 82. Under section 36(3), mandatory school attendance commences at the beginning of the school year following the date on which the child reaches the age of six, unless the child is granted a postponement. Minor Offences Act (Law no. 200/1990 Coll., as amended) 83. At the relevant time, section 29(1)(f), dealing with minor offences in the area of health care, made it a minor offence punishable by a fine of up to the equivalent of some EUR 400 (subsection 2) to fail to discharge a duty imposed in order to prevent the occurrence or spread of infectious diseases. Compensation for Health Damage due to Compulsory Vaccination Act (Law no. 116/2020 Coll.) 84. The Act entered into force on 8 April 2020. It provides for strict liability on the part of the State for damage to health due to compulsory vaccination (section 1). Such compensation is provided for in the event of a particularly grave injury to the health ( zvlášť závažné ublížení na zdraví ) of the vaccinated person and in respect of suffering, loss of income, impairment of one’s ability to be useful in society ( ztížení společenského uplatnění ), expenses in respect of the medical care of the vaccinated person, and care for his or her person and his or her household (section 2). The Act provides for an irreversible presumption of a causal connection between the vaccination and the symptoms appearing after the vaccination, in so far as such symptoms are recognised – in secondary legislation yet to be adopted – as likely consequences of the given vaccine (sections 3 and 8). Domestic practiceSAC case-law SAC case-law SAC case-law 85. In judgment no. 3 Ads 42/2010 of 21 July 2010, an ordinary chamber of the SAC held that the 2000 Ministerial Decree exceeded the permissible limits in that it regulated matters that were reserved to the legislature. It held that, as a result of the very general wording of section 46(1) of the PHP Act, the 2000 Ministerial Decree provided for primary rights and duties beyond the limits fixed by the law. Accordingly, the court quashed an administrative decision imposing a fine on parents for failure to comply with their vaccination duty in relation to their children. 86. This opinion was, however, overruled by an extended chamber of that court in a decision of 3 April 2012 (no. 8 As 6/2011) in the case of the applicant Novotná. In particular, the extended chamber found as follows: “The framework regulation in section 46 of the [PHP] Act on the duty for individuals to undergo vaccination and the precisions added to it by the [2006 Ministerial] Decree satisfy the constitutional requirements to the effect that duties may only be imposed on the basis and within the bounds of the law (Article 4 § 1 of the Charter) and that limitations on fundamental rights and freedoms may only be imposed by the law (Article 4 § 2 of the Charter).” 87. A situation in which primary duties were provided for by law (i.e. by an Act of Parliament) and clarified by secondary legislation within the limits set by that law was compatible with Article 4 § 2 of the Charter. With regard to Article 26 § 1 of the Oviedo Convention, it was similar to Articles 8-11 of the European Convention on Human Rights. In the European Court’s case-law, the term “prescribed by law” used in those provisions was interpreted in the substantive sense, so as to include not only a legislative act by a Parliament, but also any accessible and foreseeable legal rule. None of those provisions thus prevented the finer points of the vaccination duty from being regulated by an implementing instrument, provided that this was done on the basis of the law and within its limits. In the present case, the PHP Act provided for a sufficiently clear and precise framework, placing a duty, in a valid and specific manner, on certain groups of individuals to undergo vaccination after having undergone an immunity test. Although it did not define them, section 46 nonetheless brought out the fundamental meaning of the words “valid and specific vaccination”. The 2000 Ministerial Decree then specified the types of illnesses, the timetable and other details of the vaccination process. Such a legislative approach made it possible to react with flexibility to a given epidemiological situation and to developments in medical science and pharmacology. However, it did not prevent the limitations on fundamental rights provided for in the Ministerial Decree from being subjected, in specific cases, to an assessment of proportionality by the courts. 88. In judgment no. 4 As 2/2011 of 25 April 2012, the SAC pointed out, inter alia, that unlike for the MMR vaccination, the 2006 Ministerial Decree set out legally binding deadlines and age limits for compliance with the vaccination duty in respect of initiation of the primary immunisation series and/or booster doses for diphtheria, tetanus, whooping cough, poliomyelitis, hepatitis B and Haemophilus influenzae type b vaccination (under section 4(1) the last dose of the hexavalent vaccine was to be administered before the age of 18 months). It was therefore an error-free and complete legal norm ( perfektní právní norma ), i.e. non-compliance with it could entail a penalty under the MO Act. 89. In judgment no. 8 As 20/2012 of 29 March 2013, the SAC noted, with regard to the exceptional circumstances capable of outweighing the need for protection of public health within the meaning of the Vavřička jurisprudence (see paragraph 28 above), that the appellant was not alleging, for example, that submitting to the vaccination would compromise his status, or that of his parents, were they to be members of a religious community, or that it would otherwise prevent them from manifesting their beliefs. A different opinion on the part of the appellant’s parents was not sufficient. The vaccination duty pursued a legitimate aim, that of the protection of public health, which outweighed the different views of the parents of the children concerned. While everyone had the right to hold an opinion and to express it freely (Articles 15 and 16 of the Charter), this did not authorise, in a democratic State governed by the rule of law, non ‑ compliance with the regulations in force. A failure to comply entailed the consequences provided for by law. Case-law of the Constitutional Court (a) Judgment no. Pl. ÚS 19/14 of 27 January 2015 90. In the context of proceedings on constitutional appeal no. I. ÚS 1253/14 (see paragraph 93 below), in which the parents of an underage child complained that they had each been fined CZK 4,000 for having refused the routine vaccination of their child, the relevant chamber referred to the plenary formation the appellants’ free-standing request ( akcesorický návrh ) to have section 46 of the PHP Act and section 29(1)(f) of the MO Act set aside. The parents relied on the SAC’s judgment no. 3 Ads 42/2010 (see paragraph 85 above) and argued that the said provisions were contrary to Article 4 of the Charter. They further argued that the regulations on compulsory vaccination were contrary to Articles 5, 6 and 26 of the Oviedo Convention, since it was not a necessary measure for the protection of public health, in the absence of an objective basis in the form of a complex and independent analysis. Relying on their rights to dignity and respect for their physical integrity, as well as their freedom of thought and conscience, they claimed to have refused vaccination in the child’s interests, in order to protect his health. They were thus eligible for an exception within the meaning of the Vavřička jurisprudence (see paragraph 28 above). They noted in this respect that each individual’s attitude towards vaccination was based on his or her personal position, not on objective data. It was thus unthinkable that an administrative authority could re-examine the “correct” or “justified” nature of the parents’ conviction in this respect. Referring to Article 24 of the Oviedo Convention, the appellants noted that the State did not assume any liability for the side effects or damage to health caused by vaccination. There was accordingly no fair balance between the demands of the public interest and the individual’s rights. 91. By judgment no. Pl. ÚS 19/14 of 27 January 2015, the plenary formation of the Constitutional Court dismissed the above-mentioned free ‑ standing request. It noted that the regulations on compulsory vaccination fell fully within the competence of the national legislature. As to the rule that certain matters could only be regulated by an Act of Parliament (Article 4 of the Charter), the Constitutional Court endorsed the conclusions of the extended chamber of the SAC in its judgment no. 8 As 6/2011 (see paragraph 86 above). The wording of section 46 of the PHP Act was sufficiently clear and understandable and it duly defined all necessary parameters for the regulation of details by secondary legislation. This arrangement made it possible to react promptly to the epidemiological situation and to the current state of medical and pharmacological knowledge. Compulsory vaccination amounted to an interference with the individual’s physical integrity and, accordingly, with his or her right to respect for private or family life. As a restriction on this fundamental right, the vaccination duty was accompanied by safeguards to minimise any potential abuse and to prevent this medical intervention from being carried out where the conditions were not met (section 46(2) and (3)). The compatibility of this restriction with the right to respect for private life was to be established on the basis of the following five-step test. Firstly, the issue in question had to fall within the material scope of the rights that were limited, which in the present case it manifestly did. Secondly, there had to be an interference with the right in question, which in the case at hand there was, by virtue of an intrusion into the personal integrity of the vaccinated individual and, in the case of children under fifteen, an interference with the right of their parents to decide on matters concerning their care and education, or even, where applicable, with the right to manifest one’s religion or beliefs freely. Thirdly, the restriction had to be in accordance with the law, which it was, the term “law” being understood in the substantive sense, including texts of secondary legislation. Fourthly, the restriction had to pursue a legitimate aim, in this instance the protection of health. Fifthly, the restriction had to be necessary, and it was, as it was clear from data provided by national and international experts – the assessment of which was a matter for the legislature and the executive, not for the Constitutional Court – that the approach of general vaccination against the specified infectious diseases was to be recommended and that the interest in protecting public health outweighed the arguments of appellants who were opposed to vaccination. In an obiter dictum, referring to Article 24 of the Oviedo Convention, the Constitutional Court considered that if the State imposed penalties for non ‑ compliance with the vaccination duty, it ought also to envisage the situation where vaccination damaged the health of the individual concerned. Thus, it was incumbent on the legislature to give consideration to regulations governing State liability for such consequences, which was not uncommon in other States. (b) Decision no. III. ÚS 3311/12 of 17 August 2015 92. By this decision, the Constitutional Court dismissed a constitutional appeal of parents fined in minor-offence proceedings for having refused the routine vaccination of their child. The court noted, inter alia : “29 ... [T]he present case is not ... an exceptional case in which compulsory vaccination cannot be enforced due to specific circumstances. In the appellants’ case ... the Constitutional Court did not find any exceptional reasons for them not to be penalised for having refused compulsory vaccination of their [child], on the grounds that the penalty would amount to an interference with their freedom of thought and conscience. The Constitutional Court did not find any exceptional or convincingly and consistently claimed reasons for which the appellants had refused to have their [child] vaccinated and which would fundamentally call for respecting their autonomy despite the undisputed and significant public interest in vaccination. 30. The appellants’ arguments ... remained at a completely general level; the appellants ... acted on a general conviction regarding the child’s best interest. They refused vaccination on the basis of an opinion that they had reached (only) by studying literature and other resources. A general opinion so presented cannot be understood as unique and constitutionally relevant reasons for refusing vaccination. The appellants’ assertions are not sufficiently convincing. Over the course of time they were even inconsistent, because in the proceedings before the administrative authorities the appellants cited their reasons ... in a much more urgent manner than in the proceedings before the administrative courts in which, instead of their personal reasons for refusing compulsory vaccination, the mainstay of their arguments was a general analysis of the ... compliance of compulsory vaccination legislation with the constitutional order. Before the Constitutional Court, they once again focused on the reasons for refusing vaccination in their specific case. However, the appellants did not state any relevant circumstances (they noted that their [child] was a healthy child who only suffered from occasional common illnesses) to support [the existence of] any interference with the constitutionally guaranteed rights and freedoms.” (c) Judgment no. I. ÚS 1253/14 of 22 December 2015 93. The case was brought by parents fined for having refused several of the compulsory vaccinations of their child. In its judgment on their constitutional appeal, the Constitutional Court developed and clarified its conclusions reached in Vavřička (see paragraph 28 above). As to the right to a “secular objection of conscience”, it held: “42. The existence of the constitutional judgment [in the Vavřička case] leads to the following postulates regarding the justifiability of the secular objection of conscience, which must be satisfied cumulatively. These are (1) the constitutional relevance of the claims contained in the objection of conscience, (2) the urgency of the reasons that the holder of the fundamental freedom cites in support of his objection, (3) the consistency and persuasiveness of that person’s claims, and (4) the social impact that the acceptance of a secular objection of conscience may have in the specific case. 43. [In the Vavřička judgment] the Constitutional Court held that if all of the above requirements were satisfied then compulsory vaccination of the particular person was not to be insisted upon, i.e. non ‑ compliance with the vaccination duty was not to be penalised, nor was the duty in that case to be enforced by other means. ... 44. The claims underlying the secular conscientious objection to compulsory vaccination acquire a constitutional dimension due to the collision between the protection of public health and the health of the person in whose favour the objection of conscience is applied ... Nor can the parents’ claim of an interference with their right of parental care be ignored ... Article 15 § 1 [of the Charter] on freedom of conscience or conviction of holders of a fundamental right remains immanent to the case. Nor can a very frequent argument that vaccination is an interference with bodily integrity be ignored ... Moreover, all these cases involve fundamental rights that can be weighed against each other (with a view to finding an optimal balance). 45. The urgency of the reasons underlying the conscientious objection to compulsory vaccination remains, undoubtedly, subjective in its nature. It is the proverbial aspect of “here and now” which impedes compliance with a lawful order without any exception. It is difficult to define the variety of the content of the objection; undoubtedly, it potentially includes the conviction that irreversible damage can be caused to the health of a close person. If this is a minor who is represented by a statutory representative, the specific aspects of his or her interest in avoiding the vaccination must be taken into consideration. 46. The convincing and consistent character of the claims underlying a secular conscientious objection must be assessed ad personam and cannot be subjected to the test of objective truthfulness; the content of those claims must not lack an element based on values or strongly contradict the social environment, but it must pass muster above all with the person making such claims and those who are the closest to him. The Constitutional Court has previously required [in the Vavřička case] the author of the objection to communicate with the competent public authority, i.e. to refrain from justifying his conviction only at the later stages of the proceedings. This still applies, and unambiguity and appropriate (reasonable) clarity of the manifestation of that person’s conscience must be a matter of course. 47. Finally, with all due respect for the autonomy of manifestations of will, the social impact of the secular objection of conscience, if it is to be accepted, must not exceed the sphere of the legitimate aims relevant for the given field of law to an excessive degree. In this specific case this means, inter alia, that the desirable level of vaccination coverage ... must be taken into account. The exception granted must not be associated with conclusions that would allow such exceptions to become the rule. ... 49. As regards the relation between the two types of conscientious objections, both religious and secular, the Constitutional Court concludes that in a secular State (Article 2 § 1 of the Charter) there is no reason to treat them differently. ... 50. ... [R]efusal of compulsory vaccination on the grounds of religion and belief, which cannot be completely ruled out depending on the specific circumstances, must remain a restrictively perceived exception, for which the Constitutional Court has already opened some space on account of strong reasons, but not a dispensation granted automatically to a specific religion or a group of persons professing a specific belief. 51. All of the above applies with equal force also in cases where a certain person is to undergo compulsory vaccination and a secular objection of conscience is raised ... [A]n exception from the statutory duty may be considered only in exceptional cases closely linked to the person subject to the vaccination duty, or to persons closely related to such person (a highly adverse reaction to previous vaccination in the case of that person, that person’s child, etc.). The opposite finding would contradict the fact that compulsory vaccination serves the protection of public health, such protection being the preferred option in the law as approved by the Constitutional Court in its judgments nos. Pl. ÚS 19/14 and Pl. ÚS 16/14.” COMPARATIVE MATERIALConstitutional jurisprudence Constitutional jurisprudence Constitutional jurisprudence 94. The following relevant constitutional judgments are included in the CODICES database of the Venice Commission. France 95. In case no. 2015-458 QPC, the Constitutional Council considered a request from the Court of Cassation for a preliminary ruling on the constitutionality of certain provisions of the Public Health Code. Those provisions related to compulsory vaccination against diphtheria, tetanus and poliomyelitis for minor children under the responsibility of their parents. The applicants in the original proceedings claimed that the compulsory vaccinations could entail a health risk, in breach of the constitutional requirement of health protection. 96. In a decision of 20 March 2015, the Constitutional Council ruled that the provisions in question were in conformity with the Constitution. It observed that, by making the given vaccinations compulsory, the legislature had intended to combat three diseases that were very serious and contagious or could not be eradicated. In doing so, it had made each of these vaccinations compulsory only on condition of there being no known medical contraindication. 97. The Constitutional Council ruled that the legislature was free to shape a vaccination policy to protect individual and public health. It was not for the Constitutional Council, which did not enjoy the same general power of assessment and decision-making as Parliament, to call into question the provisions enacted by the legislator, having regard to the state of scientific knowledge, or to seek to establish whether the objective of health protection set by the legislature might have been attained by other means, since the arrangements provided for by the law were not manifestly inappropriate to the objective pursued. Hungary 98. In a constitutional judgment of 20 June 2007 in case no. 39/2007, the Constitutional Court examined a petition lodged by a married couple who were refusing to have their child vaccinated, and who had challenged the constitutionality of the 1997 Health Act providing for compulsory vaccination. A failure to comply warranted an administrative order for the given vaccine to be carried out, the order being directly enforceable, regardless of any appeal. 99. The court found, inter alia, that the protection of children’s health justified compulsory vaccination at certain ages and accepted the legislature’s position, based on scientific knowledge, that the benefits of vaccination for both the individual and society outweighed any possible harm due to side ‑ effects. The system of compulsory vaccination thus did not contravene children’s right to physical integrity. At the same time, the court acknowledged that the system of compulsory vaccination might result in more significant harm for parents who, for reasons of religious conviction or conscience, did not agree with vaccination. The regulation was however in accordance with the requirements of the neutrality of the State. The legal norms in question, being binding on everybody and protecting the health of the children concerned, all other children, and in fact society as a whole, were based on postulates of the natural sciences, rather than the acceptance of the truth content of different ideologies. 100. However, there had been an unconstitutional omission to legislate, as the legislature had failed to provide an effective legal remedy against the refusal of exemptions from compulsory vaccination. In particular, the statutory provision permitting the immediate enforcement of an order for vaccination, with no recourse to any legal remedy, was unconstitutional and accordingly repealed. North Macedonia 101. In case no. U.Br. 30/2014 the Constitutional Court reviewed the constitutionality of certain statutory provisions pertaining to the compulsory vaccination of children and the consequences of non-compliance with it. The legislation in question provided for the compulsory vaccination of all persons of a certain age against tuberculosis, diphtheria, tetanus, whooping cough, polio, measles, mumps, rubella, Haemophilus influenzae type b infections and hepatitis B. In its judgment of 8 October 2014, the court held, inter alia, as follows. 102. Mandatory vaccination could not be called into question with regard to the constitutional provisions on the rights and duties of citizens in relation to the protection and promotion of their own health and that of others. Neither could it be questioned with regard to the provisions on the right and duty of parents to take care of and raise their children. A refusal of a vaccination by the parents not only endangered the health of their children, but also the health of other persons who had not been vaccinated on account of medical contraindications, and it thus denied them the right to a healthy life. 103. In order to safeguard the health of the child and the child’s right to health, which was subject to a special level of protection, it was justified to deny the parents’ freedom to refuse vaccination, since the right of the child to health prevailed over the parents’ right to choose. 104. Moreover, the legislature was not prevented from regulating penal policy in respect of a breach of the vaccination duty by making it punishable by a fine. 105. Similarly, there was no obstacle for the legislature to make enrolment in primary school dependant on the parents’ submitting proof of vaccination of the child. In that regard, the court noted specifically that since all children of the given age were eligible for enrolment in the first grade, a large number of students would enrol from different areas and backgrounds, which carried an inherent risk of the spread of certain diseases. Moreover, parents who refused to vaccinate their children were to be reminded that other parents also had the right to protection from serious illness in respect of their children, and that unvaccinated children posed a greater risk of spreading the disease, especially in child-care facilities, schools and other educational establishments. Italy (a) Constitutional judgment no. 5/2018 106. In this judgment, delivered on 22 November 2017, the Constitutional Court considered the constitutional validity of a decree-law introduced as a matter of urgency to increase the number of compulsory vaccinations from four to ten. The decree-law made access to early childhood educational services conditional on the receipt of all ten vaccines. The sanction for failure to comply was an administrative fine. This was challenged on a number of grounds, including as an unjustifiable interference with the constitutional guarantee of individual autonomy. This argument was dismissed with the following reasoning. 107. The court noted the preventive nature of vaccination, the critically unsatisfactory level of vaccination in Italy at the given time, and the existing trends suggesting that the rate of vaccination was deteriorating. It found that the legislation was within the scope of the discretion and political responsibility of the authorities, who were expected to assess the overriding need to intervene urgently and prior to the emergence of crisis scenarios, and to do so in the light of new data and new epidemiological phenomena. Furthermore, they were expected to act consistently with the principle of precaution, which was inherent in the approach to preventive medication, and was of fundamental importance where public health was concerned. 108. Pointing out that there was no scientific basis for the existing trends in popular opinion which considered vaccination to be futile or dangerous, the court noted that, in medical practice, recommendation and obligation were conjoined concepts and, therefore, moving six vaccinations from being simply recommended to being compulsory did not represent a significant change in their status. It also held that requiring a certificate for school enrolment and imposing fines were both reasonable measures for the legislature to take, not least where it had provided for initial steps to be taken before the imposition of such sanctions, i.e. one-to-one meetings with parents and guardians to inform them about the efficacy of vaccinations. 109. The court drew attention to its established case-law to the effect that, in the area of vaccinations, there was a requirement for balance between the individual right to health (including freedom concerning treatment) and the coexistent and reciprocal rights of others and the interests of the community, as well as, in the case of compulsory vaccinations, the interests of children, who required protection even vis-à-vis parents who did not fulfil their duties of care. 110. As to the interests of minor children, they were to be pursued first of all through their parents’ exercise of their joint right and duty to take action that was well-suited to protecting the health of their children. That freedom did not however extend to making choices that were potentially detrimental to the health of minor children. 111. A law imposing a health-related treatment was not incompatible with the Constitution if: the treatment was intended not only to improve or maintain the health of the recipient, but also to preserve the health of others; the treatment was not expected to have a negative impact on the health of the recipient, with the exclusive exception of those consequences that normally arose and, as such, were tolerable; and, in the event of further injury, the payment of just compensation to the injured party was provided for, separate and apart from any damages to which they might be entitled. 112. The court also noted that the issue of vaccination involved many constitutional values, the coexistence of which left room for legislative discretion in choosing the means by which to ensure the effective prevention of infectious diseases. That discretion had to be exercised in the light of the various health and epidemiological conditions, as ascertained by the responsible authorities and of the constantly evolving discoveries of medical research, to which the legislature had to turn for guidance when making its choices in that area. (b) Constitutional judgments nos. 307/1990 and 118/1996 113. In its earlier judgment no. 307/1990, given on 14 June 1990, the Constitutional Court declared unconstitutional a law making provision for compulsory anti-poliomyelitis vaccination, due to its failure to provide for compensation for those suffering damage to their health caused by the vaccine, in the absence of liability for negligence. 114. The legislation subsequently enacted (Law no. 210 of 25 February 1992) was examined by the Constitutional Court in judgment no. 118/1996, of 18 April 1996. The court noted the two aspects of health in constitutional law: the individual and subjective aspect concerning a fundamental right of the individual; and the societal and objective aspect concerning health as a public interest. The risk of damage to an individual’s health could not be completely avoided. The legislature had therefore struck a balance, giving precedence to the collective aspect of health. Yet nobody could be asked to sacrifice their health to preserve that of others without being granted just compensation for damage caused by medical treatment. The court found the law to be contrary to the Constitution, in that it failed to make provision for compensating those whose health was injured by compulsory vaccination before the law entered into force. It observed that such damage gave rise to a claim for compensation under the Constitution itself without any liability for negligence being taken into consideration. (c) Constitutional judgment no. 268/2018 115. This judgment, which was delivered on 22 November 2017 as judgment no. 5/2018 (see paragraph 106 above), concerned a legislative situation in which no compensation was available for damage to health caused by a vaccination which was recommended rather than compulsory. The court observed that there was no qualitative difference between compulsory and recommended vaccinations, the key issue being the essential objective of preventing infectious diseases that was pursued by both types. Accordingly, the exclusion of compensation was contrary to the Constitution. Republic of Moldova 116. In its judgment no. 26 of 30 October 2018, the Constitutional Court examined a challenge to certain legislative provisions making the admission of children to community groups and educational and recreational institutions contingent upon their systematic prophylactic vaccination, the complaint being that this restricted the access of children to education. 117. Among other things, the court noted that the legitimate aims pursued by the challenged provisions were the protection of children’s health and public health from severe illnesses which spread more when vaccination rates were lower. A restriction on access by unvaccinated children, who had no contraindications, for a limited time pending their vaccination, was a less intrusive measure in terms of the right to respect for private life and to education and would efficiently achieve the aims pursued. 118. The court balanced the principle of health protection with the principles of access to education and respect for private life. Refusing to vaccinate children with no contraindications might not only entail their possible exclusion, pending their vaccination, but also exposed them to the risk of contracting an illness. The damage to their health also had negative effects on other rights they were entitled to enjoy. 119. Children with contraindications, while eligible for admission, were also exposed to the risk of contracting a communicable illness from unvaccinated children who had no contraindications. The consequences of an individual’s action on their innocent peers could not be ignored. In the given context, the rights of the individual were not exercised in an existential vacuum, but within an organised society. 120. The children of parents who did not wish them to be vaccinated in the absence of any contraindications had alternative means of learning. Also, from the perspective of leisure opportunities for children in this category, the exercise of social private life was not a central aspect of their right to respect for private life. 121. The differential treatment of vaccinated children compared to those who could be vaccinated but were not was objectively justified and reasonable. Serbia 122. In case no. IUz-48/2016, the Constitutional Court examined several challenges to the constitutionality of certain legislative provisions concerning compulsory vaccination and their conformity with international agreements ratified by Serbia. 123. As regards the necessity in a democratic society of the measures mandated by the contested provisions, the court noted that the available 2015 immunisation records for the vaccines in the immunisation schedule showed the lowest vaccination rate in ten years. This increased the risk of epidemics of communicable diseases which had been prevented for decades by vaccination, because a high level of collective immunity was needed to prevent an outbreak of an epidemic. In view of all the circumstances, including the duty of everyone to respect the public interest and not jeopardise the health of others, the court found that the criterion of necessity was fulfilled. 124. Concerning the argument that, compared to children who had been vaccinated, those who remained unvaccinated were discriminated against because they were deprived of their constitutionally guaranteed right to education, the court found that the fact that children’s attendance at educational institutions was conditional on their having been vaccinated could not be construed as being relevant in constitutional terms to any form of discrimination in respect of the right to education. This was so because all children in certain age groups were subject to vaccination, unless this was contraindicated on health-related grounds. As that duty pertained equally to all persons belonging to the given group, those who did not comply with it could not be considered discriminated against vis-à-vis those who did, because they were not in the same or a similar situation. Slovakia 125. The relevant jurisprudence is referred to in paragraph 229 below. Slovenia 126. In a judgment of 12 February 2004 in case no. U-I-127/01, the Constitutional Court upheld the constitutionality of a system of compulsory vaccination against tuberculosis, diphtheria, tetanus, whooping cough, infantile paralysis, measles, mumps, rubella and hepatitis B. However, it found deficiencies in the existing rules and their operation as regards the mechanism for individuals to claim exemption from the vaccination duty on the grounds of health contraindication. 127. Moreover, the court found a further deficiency in that the legislation did not regulate the right to compensation for damage to health resulting from vaccination side-effects. In particular, under the principle of solidarity, which itself was the basis for making vaccination compulsory, the State ordering such a measure for the benefit of everyone must be required to pay compensation to those who experienced harmful side ‑ effects. United Kingdom 128. In a case concerning the vaccination of a baby placed in the care of the local authorities, notwithstanding the objections of the parents ( Re H (A Child)(Parental Responsibility: Vaccination ), [2020] EWCA Civ 664), the judgment of the Court of Appeal of 22 May 2020 concluded as follows: “(i) Although vaccinations are not compulsory, the scientific evidence now clearly establishes that it is in the best medical interests of children to be vaccinated in accordance with Public Health England’s guidance unless there is a specific contra ‑ indication in an individual case. (ii) Under [the applicable statutory provision] a local authority with a care order can arrange and consent to a child in its care being vaccinated where it is satisfied that it is in the best interests of that individual child, notwithstanding the objections of parents. (iii) The administration of standard or routine vaccinations cannot be regarded as being a ‘serious’ or ‘grave’ matter. Except where there are significant features which suggest that, unusually, it may not be in the best interests of a child to be vaccinated, it is neither necessary nor appropriate for a local authority to refer the matter to the High Court in every case where a parent opposes the proposed vaccination of their child. To do so involves the expenditure of scarce time and resources by the local authority, the unnecessary instruction of expert medical evidence and the use of High Court time which could be better spent dealing with one of the urgent and serious matters which are always awaiting determination in the Family Division. (iv) Parental views regarding immunisation must always be taken into account but the matter is not to be determined by the strength of the parental view unless the view has a real bearing on the child’s welfare.” INTERNATIONAL AND EUROPEAN LAW AND PRACTICEInternational Covenant on Economic, Social and Cultural Rights International Covenant on Economic, Social and Cultural Rights International Covenant on Economic, Social and Cultural Rights 129. The Covenant, which is a part of the legal order of the Czech Republic (Decree of the Minister of Foreign Affairs no. 120/1976 Coll., in conjunction with Article 1 of Constitutional Law no. 4/1993 Coll.), reads in its relevant part as follows: Article 12 “1. The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. 2. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for: ... (c) The prevention, treatment and control of epidemic, endemic, occupational and other diseases; ...” 130. In General comment No. 14 on the right to the highest attainable standard of health, published on 11 August 2000 (E/C.12/2000/4), the UN Committee on Economic, Social and Cultural Rights noted, inter alia : “[Article 12.2 (c). The right to prevention, treatment and control of diseases] 16. ... The control of diseases refers to ... the implementation or enhancement of immunization programmes and other strategies of infectious disease control. ... [Specific legal obligations] 36. The obligation to fulfil requires States parties, inter alia, to give sufficient recognition to the right to health in the national political and legal systems, preferably by way of legislative implementation, and to adopt a national health policy with a detailed plan for realizing the right to health. States must ensure provision of health care, including immunization programmes against the major infectious diseases .... ... [Core obligations] 44. The Committee also confirms that the following are obligations of comparable priority: ... (b) To provide immunization against the major infectious diseases occurring in the community; (c) To take measures to prevent, treat and control epidemic and endemic diseases.” 131. In its Concluding observations as part of the periodic review of individual States, the UN Committee on Economic, Social and Cultural Rights has repeatedly emphasised the duty of preventive vaccination of the highest possible percentage of the population (see, for example, observations of 7 June 2010 on Kazakhstan (E/C.12/KAZ/CO/1), § 4). It has also criticised a decreased rate of vaccination (see, for example, observations of 13 December 2013 on Egypt (E/C.12/EGY/CO/2-4), § 21) and called for a reversal of that negative trend (see, for example, observations of 13 June 2014 on Ukraine (E/C.12/UKR/CO/6), § 19). United Nations Convention on the Rights of the Child 132. This Convention is likewise a part of the legal order of the Czech Republic (Notice of the Federal Ministry of Foreign Affairs no. 104/1991 Coll., in conjunction with Article 1 of Constitutional Law no. 4/1993 Coll.). Article 3 § 1 provides: “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.” Article 24 provides as relevant: “1. States Parties recognize the right of the child to the enjoyment of the highest attainable standard of health ... States Parties shall strive to ensure that no child is deprived of his or her right of access to ... health care services. 2. States Parties shall pursue full implementation of this right and, in particular, shall take appropriate measures: (a) To diminish infant and child mortality; (b) To ensure the provision of necessary medical assistance and health care to all children with emphasis on the development of primary health care; (c) To combat disease ..., including within the framework of primary health care ...; ... (e) To ensure that all segments of society, in particular parents and children, are informed, have access to education and are supported in the use of basic knowledge of child health ...; (f) To develop preventive health care ...” 133. According to General comment No. 15 by the United Nations Committee on the Rights of the Child in relation to the right of the child to the enjoyment of the highest attainable standard of health, published on 17 April 2013 (CRC/C/GC/15), the realisation of this right entails the universal availability of immunisation against the common childhood diseases. 134. In its Concluding observations as part of the periodic review of individual States, the UN Committee on the Rights of the Child often emphasises the need to strengthen the system of vaccination of children, including increased vaccination coverage, and recommends the full vaccination of all children. As regards the Czech Republic, in observations of 18 March 2003 the Committee noted that the vaccination uptake was excellent (CRC/C/15/Add.201, § 3). Documents of the World Health Organisation (WHO) 135. In its “Global Vaccine Action Plan” published in 2013 the WHO recommended attaining a national coverage rate of at least 90% in relation to all vaccines that form part of national immunisation programmes. As regards vaccination in general, it made the following observations: “Overwhelming evidence demonstrates the benefits of immunisation as one of the most successful and cost-effective health interventions known. Over the past several decades, immunization has achieved many things, including the eradication of smallpox, an accomplishment that has been called one of humanity’s greatest triumphs. Vaccines have saved countless lives, lowered the global incidence of polio by 99 percent and reduced illness, disability and death from diphtheria, tetanus, whooping cough, measles, Haemophilus influenzae type b disease, and epidemic meningococcal A meningitis. ... Immunization is, and should be recognized as, a core component of the human right to health and an individual, community and governmental responsibility. Vaccination prevents an estimated 2.5 million deaths each year. Protected from the threat of vaccine-preventable diseases, immunized children have the opportunity to thrive and a better chance of realizing their full potential. These advantages are further increased by vaccination in adolescence and adulthood. As part of a comprehensive package of interventions for disease prevention and control, vaccines and immunization are an essential investment in a country’s – indeed, in the world’s – future. ... The last century was, in many respects, the century of treatment, resulting in dramatic reductions in morbidity and mortality, with the discovery and use of antibiotics as one of the biggest agents of change in health. This century promises to be the century of vaccines, with the potential to eradicate, eliminate or control a number of serious, life-threatening or debilitating infectious diseases, and with immunization at the core of preventive strategies.” 136. One of the main aims of the WHO’s Global Immunisation Vision and Strategy is to immunise “more people against more diseases”. European Social Charter 137. The Social Charter entered into force in respect of the Czech Republic on 3 December 1999 (Notice of the Ministry of Foreign Affairs no. 14/2000 Collection of international treaties). It forms part of the legal order of the Czech Republic and in case of conflict has precedence over statute (Article 10 of the Constitution). The relevant provision reads as follows: Article 11 – The right to protection of health “With a view to ensuring the effective exercise of the right to protection of health, the Contracting Parties undertake, either directly or in co-operation with public or private organisations, to take appropriate measures designed inter alia : ... 3. to prevent as far as possible epidemic, endemic and other diseases.” 138. In the case of Médecins du Monde – International v. France (collective complaint no. 67/2011, decision on the merits of 11 September 2012) the European Committee of Social Rights explained, inter alia : “160. Article 11 § 3 requires states to ensure high immunisation levels, in order to not merely reduce the incidence of these diseases, but also to neutralise the reserves of viruses and thus to reach the objectives set by the [WHO]. The Committee underlines that vaccinations on a large scale are recognised as the most efficient and most economical means of combating infectious and epidemic diseases (see Conclusions XV-2, Belgium, Article 11 § 3). This concerns the population in general ...” 139. If the vaccination coverage in a Council of Europe Member State is too low, the Committee will find that the situation is not in conformity with Article 11 § 3 of the Charter (see e.g. Conclusions XV-2, Belgium, 31 December 2001), or it can warn the State concerned. The Committee considers the WHO targets to be the reference criteria. 140. In the conclusions of 2 January 2010 (XIX-2/def/CZE/11/3/EN) on review of the Czech Republic, the Committee found, pending receipt of the information requested, that the situation in the Czech Republic, including that in matters of immunisation, was in conformity with Article 11 § 3 of the Charter. Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine (Oviedo Convention) 141. The Oviedo Convention was opened for signature on 4 April 1997 and entered into force in respect of the Czech Republic on 1 October 2001 (Notice of the Ministry of Foreign Affairs no. 96/2001 Collection of international treaties). It forms part of the legal order of the Czech Republic and has precedence over statute in case of conflict (Article 10 of the Constitution). The relevant parts read as follows: Article 5 – General Rule “An intervention in the health field may only be carried out after the person concerned has given free and informed consent to it. This person shall beforehand be given appropriate information as to the purpose and nature of the intervention as well as on its consequences and risks. The person concerned may freely withdraw consent at any time.” Article 6 – Protection of persons not able to consent “... 2. Where, according to law, a minor does not have the capacity to consent to an intervention, the intervention may only be carried out with the authorisation of his or her representative or an authority or a person or body provided for by law. The opinion of the minor shall be taken into consideration as an increasingly determining factor in proportion to his or her age and degree of maturity. ...” Article 24 – Compensation for undue damage “The person who has suffered undue damage resulting from an intervention is entitled to fair compensation according to the conditions and procedures prescribed by law.” Article 26 – Restrictions on the exercise of the rights “1. No restrictions shall be placed on the exercise of the rights and protective provisions contained in this Convention other than such as are prescribed by law and are necessary in a democratic society in the interest of public safety, for the prevention of crime, for the protection of public health or for the protection of the rights and freedoms of others. ...” Recommendation 1317 (1997) of the Parliamentary Assembly of the Council of Europe (PACE), entitled “Vaccination in Europe” 142. The relevant passages of the Recommendation, which was adopted on 19 March 1997, read as follows: “5. The Assembly considers that efforts to improve the immunisation level should not be concentrated solely on the plight of the countries undergoing transition. The immunisation level of populations in western Europe has been steadily declining in recent years. The low percentage of fully vaccinated people, coupled with outbreaks of infectious diseases in the same geographic area, raises fears of major epidemics in Western Europe too. 6. The Assembly therefore recommends that the Committee of Ministers invite member states: 6.1. to devise or reactivate comprehensive public vaccination programmes as the most effective and economical means of preventing infectious diseases, and to arrange for efficient epidemiological surveillance; ... 7. The Assembly furthermore invites the Committee of Ministers: 7.1. to define a concerted pan-European policy on population immunisation, in association with all partners concerned, for example the WHO, Unicef and the European Union, aimed at the formulation and observance of common quality standards for vaccines, and to ensure an adequate supply of vaccines at a reasonable cost; 7.2. to call upon member states to ratify the European Social Charter of the Council of Europe, in particular Article 11, securing ‘The right to protection of health’, and to instruct the Charter’s supervisory bodies to pay due attention to the fulfilment of this undertaking.” Resolution 1845 (2011) of the PACE, entitled “Fundamental rights and responsibilities” 143. The relevant passages of the Resolution, which was adopted on 25 November 2011, read as follows: “1. Rights, duties and responsibilities cannot be dissociated from each other. Living as members of society inevitably entails duties and responsibilities as well as rights. ... 4. Some duties are already established in international human rights instruments and national legal orders. These duties are indicative of the existence of unwritten fundamental responsibilities. 5. Duties imposed by law are subject to the proportionality principle. When a burden is placed on an individual, in the name of the general interest, a fair balance has to be struck between the various interests at stake. 6. Likewise, responsibilities can never be so heavy that assuming them would bring the individual’s rights, particularly his or her fundamental rights, into jeopardy. Responsibilities should remain reasonable at all times. ... 8. The Assembly: 8.1. hereby identifies the following set of fundamental responsibilities: 8.1.1. all individuals have the general fundamental responsibility ... to respect the rights of others whilst exercising their own rights; 8.1.2. furthermore, all individuals have specific fundamental responsibilities to respect and protect human life, ... to show solidarity, to act responsibly towards children, ...; 8.2. emphasises that these fundamental responsibilities can never be construed as impairing, restricting or derogating from the rights and freedoms contained in the [Convention], the revised European Social Charter ... and other international and regional human rights instruments; 8.3. calls on the member states of the Council of Europe to take these general and specific fundamental responsibilities into account in a proportional way when dealing with individuals.” Law of the European Union 144. Title XIV of Part Three of the Treaty on the Functioning of the European Union, in its consolidated version, deals with public health. Its relevant part reads: Article 168 “1. A high level of human health protection shall be ensured in the definition and implementation of all Union policies and activities. Union action, which shall complement national policies, shall be directed towards improving public health, preventing physical ... illness and diseases, and obviating sources of danger to physical ... health. Such action shall cover the fight against the major health scourges, ..., their transmission and their prevention, as well as health information and education, and monitoring, early warning of and combating serious cross-border threats to health. ... 2. The Union shall encourage cooperation between the Member States in the areas referred to in this Article ...It shall in particular encourage cooperation between the Member States to improve the complementarity of their health services in cross-border areas. ... 3. The Union and the Member States shall foster cooperation with third countries and the competent international organisations in the sphere of public health. ... 5. The European Parliament and the Council ... may also adopt incentive measures designed to ... combat the major cross-border health scourges, measures concerning ... combating serious cross-border threats to health...” 145. Article 35 of the Charter of Fundamental Rights of the European Union, dealing with health care, and appearing under Title IV, “Solidarity”, provides: “Everyone has the right of access to preventive health care and the right to benefit from medical treatment under the conditions established by national laws and practices. A high level of human health protection shall be ensured in the definition and implementation of all the Union’s policies and activities.” 146. In response to a reference for a preliminary ruling submitted by the Supreme Court of Slovakia, originating in proceedings concerning parents’ duty to have their underage children vaccinated against certain diseases, the Court of Justice of the European Union issued an Order of 17 July 2014 in Milica Široká v Úrad verejného zdravotníctva Slovenskej republiky (Case C ‑ 459/13, EU:C:2014:2120, paragraph 25) to the effect that: “… there is no evidence in the order for reference to indicate that the objective of the main proceedings, relating to the vaccination of underage children against certain diseases, concerns the interpretation or application of a rule of Union law other than those set out in the Charter. It follows that the main proceedings do not correspond to a situation in which Union law is being implemented within the meaning of Article 51, paragraph 1, of the Charter.” 147. In 2005 the European Centre for Disease Prevention and Control was established. Its mission is to identify, assess and communicate current and emerging threats to human health posed by infectious diseases. 148. On 1 December 2014 the Council of the European Union adopted conclusions concerning vaccination as an effective tool in public health, noting, inter alia, that: “… communicable diseases, including some re-emerging ones, such as Tuberculosis, measles, pertussis and rubella, still present a public health challenge and can cause a high number of infections and deaths, and that the recent emergence and outbreaks of communicable diseases, such as polio, avian influenza H5N1 and H7N9 ... and Ebola virus disease have confirmed that vigilance must remain high also with respect to diseases that are not currently present in the territory of the Union. ... [V]accination programmes are the responsibility of individual Member States and ... various vaccination schemes exist in the EU ... [M]any vaccines used in community vaccination programmes have been able to prevent disease in individuals and at the same time interrupt the circulation of pathogens through the so-called ‘herd immunity’ phenomenon, contributing to a healthier global society. Community immunity could thus be considered an objective in national vaccination plans.” 149. The resolution of the European Parliament adopted 19 April 2018 on vaccine hesitancy and the drop in vaccination rates in Europe calls on Member States to ensure sufficient vaccination of healthcare workers, take effective steps against misinformation, and implement measures for improving access to medicines. It also calls on the Commission to facilitate a more harmonised schedule for vaccination across the European Union. 150. On 7 December 2018 the Council of the European Union adopted its recommendation on strengthened cooperation against vaccine ‑ preventable diseases. The recommendation recognises that vaccination is one of the most powerful and cost-effective public health measures developed in the twentieth century and remains the main tool for primary prevention of communicable diseases. Moreover, among the recommendations for Member States it includes the following: “1. Develop and implement vaccination plans, at national and/or regional level, as appropriate, aimed at increasing vaccination coverage with a view to reaching the goals and targets of the WHO’s European Vaccine Action Plan by 2020. These plans could include, for example, provisions for sustainable funding and vaccine supply, a life-course approach to vaccination, capacity to respond to emergency situations, and communication and advocacy activities. 2. Aim to achieve by 2020, for measles in particular, a 95 % vaccination coverage rate, with two doses of the vaccine for the targeted child population, and work towards closing the immunity gaps across all other age groups, with a view to eliminating measles in the EU. 3. Introduce routine checks of vaccination status and regular opportunities to vaccinate across different stages of life, through routine visits to the primary healthcare system and through additional measures taken, for example when beginning (pre-)school, in the workplace or in care facilities, according to national capacities.” 151. The 2018 report by the European Commission on the state of vaccine confidence in the EU includes the following observations: “High confidence in vaccination programmes is crucial for maintaining high coverage rates, especially at levels that exceed those required for herd immunity. Across the European Union (EU), however, vaccine delays and refusals are contributing to declining immunisation rates in a number of countries and are leading to increases in disease outbreaks. Recent measles outbreaks – the highest in the EU for seven years – illustrate the immediate impact of declining coverage on disease outbreaks.” EXPERT material relied on by the Government 152. On 6 November 2015 the Czech Vaccinology Society ( Česká vakcinologická společnost ), the key advisory body in the field of State vaccination policy in the Czech Republic, and the Czech Paediatric Society ( Česká pediatrická společnost ) issued a joint statement for the purposes of these proceedings before the Court. They, as well as the Association of General Practitioners for Children and Youth ( Sdružení praktických lékařů pro děti a dorost ) and the Czech Medical Chamber ( Česká lékařská komora ), resolutely supported maintaining the compulsory vaccination system as it exists in the Czech Republic. It was noted, inter alia, that vaccination was undoubtedly one of the most efficient preventive public health measures and that, since the introduction of compulsory vaccination, the occurrence of and deaths caused by vaccine-preventable diseases had radically dropped. Aiming mainly to protect children suffering from severe chronic diseases, for whom vaccination was ineffective or contraindicated, it secured high global vaccination coverage and averted human deaths and economic losses. Any failure to follow the immunisation schedule was dangerous both for the unvaccinated individual, since it increased the risk of health damage and even death caused by a preventable infectious disease in extreme cases, and for the entire population, if a higher percentage of children were not properly vaccinated. Should vaccination coverage even slightly decline and the non-immune population percentage rise, disease outbreaks could reappear even for diseases that are no longer common nowadays. 153. The Chief Medical Officer of the Czech Republic ( Hlavní hygienik České republiky ) issued an opinion for the purposes of the present proceedings before the Court. He referred to the concept of “herd immunity” as a special immunity phenomenon occurring when a significant proportion of the population was vaccinated against a specific disease, thereby providing a measure of indirect protection for individuals who had not been vaccinated or in whom immunity gained by vaccination had not developed. A dramatic drop in that coverage, for example to less than 95% in relation to measles, would mean that the herd immunity threshold would not be achieved, transmission of infections within the population could increase and the incidence of new cases of the disease could rise. 154. In 2010 the National Immunisation Commission ( Národní imunizační komise ) (“the NIC”) was set up as an advisory body of the Ministry with the principal mission to identify infectious diseases in respect of which the outbreak rate could be influenced by vaccination, to determine the optimum strategy for vaccination policy in the Czech Republic, to determine the State’s priorities in vaccination and to discuss proposals to amend the vaccination strategy. The NIC is composed of representatives of the Ministry and of a number of learned societies with relevant expertise. It has the power to request cooperation from other external experts. The minutes of its meetings are published on the Ministry’s website. 155. In 2015, in a special issue of its information bulletin, the State Agency for Drug Control (see paragraph 78 above) addressed the issue of adverse side-effects of vaccines, as reported in 2014. The vast majority of those effects had in fact been expected reactions, already described in the summary of product characteristics for the medicinal product concerned. 156. In June 2015 the Ministry set up the Working Commission for Vaccination ( Pracovní komise pro problematiku očkování ) to provide a broad platform for discussions between experts and the public about vaccination strategy in the Czech Republic, and included in its membership the Czech Human Rights League and ROZALIO, a third-party intervener before the Court in the present case. 157. In 2012 the Vaccine European New Integrated Collaboration Effort (VENICE), a network of national experts from all Member States of the European Union and Iceland and Norway working in the field of immunisation, published a study entitled “Mandatory and recommended vaccination in the EU, Iceland and Norway: results of the VENICE 2010 survey on the ways of implementing national vaccination programmes”. This study provides, inter alia, an overview of the compulsory vaccination situation in the countries concerned. Another overview of this situation was carried out by the Czech Parliamentary Institute in a report of June 2014. According to these sources, fifteen countries did not impose any compulsory vaccinations and fourteen countries required one or more vaccinations. In eight of the latter, vaccination was compulsory against the same or a higher number of diseases as in the Czech Republic. Although in some States vaccination of children was not compulsory in general, it could be ordered in specific cases, either collectively in response to an emergency or in other circumstances. As regards legislation on strict liability for health damage caused by vaccination, according to a WHO study published in 2011, only nineteen countries in the world had special compensation schemes, of which thirteen were Council of Europe member States. THE LAW PRELIMINARY OBSERVATION 158. At the outset, the Court points out that the present case relates to the standard and routine vaccination of children against diseases that are well known to medical science. These six applications, as indicated above, were introduced between 2013 and 2015 and concern the policy of the respondent State to make the set of relevant vaccines compulsory. JOINDER OF THE APPLICATIONS 159. Having regard to their similar subject matter, the Court finds it appropriate to examine the applications jointly in a single judgment (Rule 42 § 1 of the Rules of Court). ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 160. The applicants complained that it had been arbitrary to impose a fine on Mr Vavřička and to refuse the child applicants admission to nursery school on account of the failure of the parents to comply with their statutory duty to have their children vaccinated according to the prescribed vaccination schedule. They relied on Article 8 of the Convention, the relevant part of which reads as follows: “1. Everyone has the right to respect for his private ... life ... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” AdmissibilityApplication of Mr Vavřička Application of Mr Vavřička Application of Mr Vavřička 161. In relation to the amount of the fine imposed on the applicant, the Government pointed out that it was rather negligible (equivalent to EUR 110 at the relevant time). The applicant had not therefore suffered any significant disadvantage within the meaning of Article 35 § 3 (b) of the Convention. Moreover, in their view the remaining conditions for the application of this provision were also fulfilled, as a result of which the application was inadmissible as a whole. 162. The applicant argued that, at the relevant time, he had been unemployed, had no income and was going through divorce proceedings. The amount of the fine represented more than half of the statutory minimum monthly wage at the time. In addition to the financial burden it had placed on him, he had been distressed by uncertainty as to what other measures the authorities would take in response to his failure to respect the vaccination schedule concerning his children. 163. The Court will here examine the Government’s objection in so far as it concerns the applicant’s complaint under Article 8. It considers that this objection cannot be accepted. This application, along with the others, is now before the Court’s Grand Chamber because it was indeed considered to raise serious questions affecting the interpretation of the Convention or the Protocols thereto and therefore relinquished in accordance with Article 30 of the Convention, neither of the parties having availed themselves of their power to object to this. Moreover, the application of Mr Vavřička raises a distinct aspect, as he alone was subject to a fine for non-compliance with the vaccination duty. The Court is thus of the view that the conditions set down in Article 35 § 3 (b) are not met, since in any event respect for human rights as defined in the Convention and the Protocols thereto requires an examination of this part of Mr Vavřička’s application on the merits. 164. The Government’s objection under Article 35 § 3 (b) of the Convention, in so far as it relates to this applicant’s complaint under Article 8, must accordingly be dismissed. Applications of Mr Brožík and Mr Dubský 165. In relation to their applications as a whole, the Government pleaded non-exhaustion of domestic remedies, pointing out that the merits of the case had been decided by the judgment of the Hradec Králové Regional Court of 10 May 2016 (see paragraph 55 above) and that the applicants could and should have pursued their case further by way of a cassation appeal and a constitutional appeal. 166. In reply, the applicants pointed out that their applications concerned their request to the Regional Court of 18 July 2014 for an interim measure and the outcome of those proceedings. In that regard, the final domestic decision was that of the Constitutional Court of 23 October 2014 (see paragraph 54 above). As that decision was final and not subject to any further appeal, the requirement of exhaustion of domestic remedies had undoubtedly been satisfied. 167. The Court will start by examining the Government’s objection in so far as it concerns the applicants’ complaints under Article 8. To put both the objection and the applicants’ reply in perspective, the Court notes that, in their application forms, the applicants relied on Article 6 § 1 of the Convention and directed their complaints against the dismissal of their application for an interim measure in the course of the proceedings on the merits. Anticipating that the latter proceedings would last beyond their preschool age and that their outcome could by then no longer bring about any change in the fact that they had been prevented from attending nursery school, the applicants argued that by not granting them the interim measure the domestic courts had in fact denied them an effective remedy under Article 13 in respect of what they considered to be a violation of their rights under Articles 8 and 14 of the Convention and Article 2 of Protocol No. 1. 168. The Court has already characterised these complaints as falling, inter alia, under Article 8 of the Convention and it was on that basis that the two applications were communicated, to which there was no objection from the parties. 169. The Court reiterates that it is the master of the characterisation to be given in law to the facts of a case, and is not bound by the characterisation given by an applicant or a Government (see, for example, Molla Sali v. Greece [GC], no. 20452/14, § 85, 19 December 2018, and also Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 123-26, 20 March 2018). In view of the Court’s interpretation of the object of all the applicants’ Article 8 complaints, as addressed in more detail below, it considers that the Government’s non-exhaustion plea in relation to the cases of Brožík and Dubský raises issues that are closely linked to the merits of their Article 8 complaint. 170. Accordingly, in so far as it relates to that aspect of these two applications, the Government’s objection should be joined to the examination of the merits of the complaint raised under Article 8. Conclusion in relation to all the applications 171. The Court notes that the applicants’ Article 8 complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible. MeritsThe parties’ submissions The parties’ submissions The parties’ submissions (a) The applicants 172. The applicant Vavřička complained that it had been arbitrary to impose a fine on him for his failure to have his children vaccinated in accordance with the applicable schedule. The child applicants argued that it had been arbitrary to refuse them admission to nursery school for the same failure on the part of their respective parents. 173. As regards the applicability of Article 8, the applicants invoked their right to personal autonomy in making decisions concerning their health and, in the case of Mr Vavřička, the health of his children. The child applicants also relied on their right to personal development in the context of attending nursery school. The applicants further referred to a right of parents to care for their children in accordance with their opinions, convictions and conscience and in keeping with the children’s best interests. In that regard, they submitted that the best interests of a child were to be primarily assessed and protected by his or her parents, any State intervention being permitted only as a last resort in the most extreme circumstances. 174. They further submitted that since the detailed arrangements for the vaccination duty had been laid down only in secondary legislation (the Ministerial Decree), it could not be considered as being “prescribed by law” within the meaning of Article 8. 175. Moreover, in their view the process of defining the vaccination schedule was not transparent, lacked proper analysis and any public debate and suffered from a conflict of interest on the part of some members of the official bodies involved. In particular, relying on a reply of the Ministry dated 7 February 2020 to their enquiry, the applicants argued that the authorities had failed to provide them with sufficient information showing that the existing compulsory vaccinations were in fact necessary and justified. Furthermore, in defining the vaccination policy, the Ministry had wielded unlimited discretion. 176. In addition, the applicants contended that in a system with compulsory vaccination there was an incentive for fraudulent reporting of vaccination status. This problem did not arise in systems based on voluntary vaccination, which for this reason produced more reliable statistical data on vaccination uptake. In turn, these data could serve to shape the system in a more adapted and efficient way. 177. In so far as the Government relied on the authority of the learned societies specialised in the area of vaccinology in the Czech Republic or of the WHO (see paragraphs 152 et seq. above), the applicants submitted that these were broadly sponsored by pharmaceutical corporations. In particular, the applicants disagreed on matters such as the impact of vaccination on reducing mortality, the susceptibility of infants to infections, the negative impact of non ‑ vaccination and the effectiveness of some of the prescribed vaccines. Moreover, they addressed various aspects of the functioning and development of the vaccination system, for example the interpretation in the Czech Republic of the criterion of permanent contraindication to vaccination. Furthermore, the applicants submitted that in so far as potential side-effects of compulsory vaccines played a role in the assessment of their necessity and justification, these should include not only the immediate side-effects but also long-term side-effects consisting of a general weakening of the vaccinated persons’ immunity to various illnesses. 178. It was not justified to refuse access to nursery schools as a form of punishment for the fact that the children were not vaccinated. The refusal of admission to preschool had meant that the families of the child applicants had had to provide care for them by their own means, which had impacted on the family as a whole, both financially and socially. Depriving the child applicants of preschool education had put them at a significant disadvantage in their subsequent education. This was particularly important for the applicant Novotná, who was interested in pursuing a particular educational model. 179. The applicants argued that the Vavřička jurisprudential exception to the vaccination duty (see paragraphs 28 and 93 above) was almost never granted in relation to admission to nursery school. Moreover, the applicant Vavřička argued that in his case it had been defined by the Constitutional Court in a retroactive manner. On that ground, he claimed that the law at the relevant time had been lacking in quality and that he could not have made proper use of it. 180. As regards the consistency of the attitude of the applicant Vavřička towards the issue of vaccination, given that he had had his children vaccinated against all of the illnesses except for poliomyelitis, hepatitis B and tetanus, he submitted through his lawyer that he was entitled to change his convictions over the course of time. As recognised by the Constitutional Court, what counted was whether or not the conviction remained constant throughout the respective proceedings, and this had been so in his case. 181. In addition, the applicants argued that any judicial review available was merely formal and did not involve any real substantive review of the rationality and proportionality of the vaccination duty. 182. Furthermore, at the relevant time the law did not provide for any means of claiming compensation in respect of non-culpable vaccine injury to health. Under the compensation mechanism that was subsequently introduced, compensation was available only in the event of a “particularly grave injury to health”, which was a prohibitively high threshold (see paragraph 84 above). 183. In contrast to the child applicants, for whom having been vaccinated was a prerequisite for admission to nursery school, there was no such condition for the employment of nursery school staff. Some of the statutorily prescribed vaccines concerned illnesses that were not transmissible, or not transmissible in a nursery school setting. 184. In the view of the applicants, the aim of protecting the health of other children could be achieved by less intrusive means, such as the exclusion of unvaccinated children from educational establishments only in the event of a threatened or actual outbreak of one of the diseases. 185. The applicants acknowledged that vaccination involved issues of general interest, social solidarity and shared responsibility. The problem was that of proportionality. A voluntary vaccination model was based on positive motivation and was therefore both more efficient overall and more proportionate than the mandatory model based on compulsion that was in place in the Czech Republic, which they considered unacceptable. 186. The interference with the applicants’ Article 8 rights had accordingly not been necessary in a democratic society. (b) The Government 187. The Government emphasised that it was important to clarify who was the applicant in each case – child or parent – so as to determine whether and to what extent the matters complained of fell within the Court’s jurisdiction ratione personae. 188. Regarding the issue of the best interests of the child, which was at stake in cases such as the present ones, the Government considered that it was reflected in the right of the child to the enjoyment of the highest attainable standard of health within the meaning of Article 24 of the Convention on the Rights of the Child. In individual cases, the child’s best interests were to be assessed in the light of any objections of the parents, which were to be examined in the appropriate proceedings, ultimately with an element of judicial control. 189. It was accordingly not possible a priori to presume that the interests of the parents were identical to those of the children. There was at least a potential for conflict between the respective interests. 190. Responding to the argument of the applicant Roleček that in consequence of his non-admission to nursery school his mother had been obliged to stay at home with him and that, as a result, their family life had been impacted, the Government noted that the fact that family members were required to enjoy each other’s company in this way could not constitute an interference with the right to respect for family life. 191. Moreover, the Government pointed out that the parameters of the present applications were limited to the facts that directly concerned the applicants and did not include other aspects of the Czech vaccination scheme as it had evolved over time. 192. Nevertheless, the Government did not contest that the facts of the six applications fell within the scope of the right to respect for private life and acknowledged that, regarding the applicant Vavřička, the fine imposed on him constituted an interference with that right. 193. As to the child applicants, irrespective of slight distinctions in how their Article 8 complaints before the Court had been formulated, in view of the actual consequences for them, consisting of their non-admission to nursery school, they were all in fact in the same position. The existence as such of the applicable legal framework did not amount to an interference with their Article 8 rights. To that end, the Government sought to distinguish the child applicants’ cases from those such as, for example, Dudgeon v. the United Kingdom (22 October 1981, § 41, Series A no. 45), Norris v. Ireland (26 October 1988, § 38, Series A no. 142) and Modinos v. Cyprus (22 April 1993, § 29, Series A no. 259), in that the legislative restrictions imposed on the child applicants were not absolute but subject to exceptions and applied only for a limited time (until the mandatory school attendance age – see paragraph 82 above). 194. Moreover, the non-admission of the child applicants to nursery school was due to their parents’ failure to comply with a statutory duty, on subjective grounds put forward by the parents. It was questionable whether it had been in the best interests of the applicants to have been prevented by their parents from attending nursery school and spending time with children of a similar age. The Government pointed out that, unlike in Boffa and Others v. San Marino (no. 26536/95, Commission decision of 15 January 1998, Decisions and Reports (DR) no. 92-B, p. 27), these applicants were the children and what was at stake in their case was their non ‑ admission to a childcare establishment rather than a fine or any other type of penalty. Furthermore, attending nursery school was a public activity and it accordingly fell outside the scope of Article 8 of the Convention. In addition, there were alternative ways of developing one’s personality and the child applicants’ inability to attend nursery school had not fundamentally interfered with their right to development and education. Accordingly, in the Government’s submission, there had been no interference with the child applicants’ Article 8 rights. 195. Should the Court nevertheless find that there had been an interference, the Government maintained that it had been duly “prescribed by law”. The domestic legal framework consisted of the rules on the duty to vaccinate in conjunction with the rules on liability for a minor offence where the duty was not complied with, and also the rules governing admission to childcare establishments. Those rules had the quality of “law” in terms of the Court’s case-law; in so far as they originated in secondary legislation, they were subject to judicial review. Moreover, the constitutionality of the given legislative arrangement had been repeatedly examined and upheld by both the SAC and the Constitutional Court. 196. There was no real dispute about the legitimacy of the aim served by the impugned interference, which was the general interest of society in protecting public health as well as the protection of the rights and freedoms of others. In more concrete terms, vaccination protected those vaccinated as well as others, in particular vulnerable persons who could not themselves be vaccinated or in respect of whom immunisation had been ineffective. While vaccinations were voluntary in some countries and compulsory in others, the underlying aim was the same and vaccination was the safest and the most cost-effective way of achieving it. 197. In relation to the necessity of any interference in abstracto, the Government relied on their positive obligations under the Convention to take measures in the sphere of protection of life and referred to their similar obligations under other international legal instruments. More specifically, States were under a positive obligation to put in place effective public health policies for combating serious and contagious diseases and to protect the life and physical integrity of those within their jurisdiction. In that regard, it was relevant that the diseases in respect of which vaccination was compulsory were all very serious and mostly highly contagious. The risk of these diseases spreading was amplified by the current high level of migration. As these diseases had now effectively been controlled, public and media attention had shifted away from disease prevention to vaccine safety. This had the potential to distort the perception of reality and to generate vaccine misinformation, which in turn could result in decreasing vaccination rates and the possible return of previously controlled vaccine ‑ preventable diseases. Vaccine hesitancy was recognised as a serious global problem. Making vaccination compulsory was a natural response, in that it was demonstrated that it led to an improvement of the vaccination coverage. Other European States were resorting to this approach. 198. In the Czech Republic, vaccines were provided free of charge by the State. The vaccination duty was primarily aimed at children because they were the most vulnerable. In a preschool setting they were inevitably exposed to a higher risk of infection. Therefore, carrying out vaccination at a young age was conducive to achieving the overall aims of the vaccination policy. In that regard, the Government acknowledged that not all of the vaccines that were mandatory in the Czech Republic were aimed at achieving herd immunity and submitted that the herd immunity thresholds varied according to the specific illness in question. 199. The vaccination duty was not directly enforceable and any sanctions for a failure to respect it were merely administrative, with a fine only being imposable as a last resort and only once. 200. The scope of the vaccination duty was determined by the Ministry on the recommendation of its advisory board of epidemiologists and, since 2010, the NIC (see paragraph 154 above). In compliance with the requirements of the Disclosure Code of the European Federation of Pharmaceutical Industries and Associations and those of the WHO, at the beginning of every meeting of the NIC each of its members had to make a declaration as to any conflict of interests he or she might have in relation to any item on the meeting’s agenda. As for the NIC’s membership, the fact that it was limited to officials and experts reflected the prevailing practice among European States. 201. The Government rejected the applicants’ criticism that the Czech vaccination scheme was not based on proper scientific analysis. In particular, publicly available serological surveys had been performed since 1960. Both the scope and the parameters of the scheme were under constant review and there was a comprehensive mechanism in place for monitoring any adverse effects of pharmaceuticals, including vaccines. 202. A vaccination could only take place after a check-up for fitness and there were statutory as well as case-law exceptions. The latter had been defined by the Constitutional Court in the Vavřička case (see paragraph 28 above) and required no legislative implementation. Although it was true that there were no concrete examples that could be cited of application of the case ‑ law objection of conscience in relation to nursery-school admission, the exception was applicable in that context, in particular if there had been any adverse health effects of vaccination in the family of the child concerned. 203. In addition, the legislation left a certain leeway to the parents in selecting the vaccines to be used and the relevant dates, within a defined period for vaccination. Moreover, experience showed that the vaccination policy in place was in fact successful and all relevant Czech expert societies were clearly in favour of preserving it (see paragraphs 152 et seq. above). Any fines or non ‑ admissions to nursery school in connection with a failure to comply with the vaccination duty had to be based on a reasoned decision that was subject to judicial review at several levels of jurisdiction. As there was clearly no European consensus on the matter of compulsory vaccination, the margin of appreciation left to the Member States was wide. An additional reason for allowing a wide margin was that the issue involved the assessment of expert and scientific data by the national authorities. 204. As regards the six applications in concreto, the Government emphasised that as no vaccination had actually taken place against any parent’s wishes, there had been no interference with anyone’s physical integrity. None of the applicants had shown at the national level that any of the criteria for an exemption from the vaccination duty on the basis of religion, conscience or otherwise, had been met. The applicants had rather relied on no more than a generally dismissive attitude towards vaccination. In particular, in the proceedings brought by the applicants Novotná, Hornych and Roleček, the SAC had specifically noted that they had neither invoked any fundamental rights or freedoms nor relied on any exceptional circumstances at all. 205. While it was true that no specific vaccination requirement applied to the hiring of nursery school personnel, such persons were subject to the general vaccination duty applicable to anyone residing on the territory of the Czech Republic. It was thus highly unlikely that such personnel would not have previously received the relevant primary or booster vaccinations, in line with that duty. 206. As regards the possibility to claim compensation in respect of damage to health due to vaccination performed in accordance with the applicable rules and standards, the Government confirmed that there was no provision for granting compensation in respect of any such damage occurring after 31 December 2013. However, any damage caused prior to that date would be covered by the previous legislative regime, which had provided for compensation. New legislation adopted in 2020 made provision for this once again (see paragraph 84 above). This legislative development was due to the fact that, under the original regime, it was the healthcare provider administering the vaccine who could be held strictly liable for damage to the patient’s health. However, as that liability essentially had to do with the public interest, it should rest with the State. 207. Moreover, the costs of the treatment of any harmful side-effect of vaccination would be covered by public health insurance. Nevertheless, serious side ‑ effects, i.e. with life-long health consequences, were rare, with no more than six such incidents per year for 100,000 vaccinated newborns. 208. Although the jurisprudential exception to the vaccination duty on the basis of the right to freedom of religion or belief had been recognised for the first time by the Constitutional Court in the Vavřička case, this did not render the domestic courts’ interpretation and application of the existing legislation arbitrary. Regarding the applicant Novotná, the fact that the decision not to admit her to nursery school was taken in reopened proceedings after she had initially been admitted and had in fact been attending the school for two years had to be considered in the light of the fact that the original admission had been granted on the basis of incorrect information, provided by her. In providing that information she had assumed the risk that the admission decision might be reviewed once this came to light. Regarding the applicant Hornych, there was a similar anomaly in the information provided by his parents in the context of his application to nursery school. Finally, in relation to the applicant Novotná, the Government argued that attendance at a particular type of nursery school was not in fact a precondition for enrolment in an elementary school using the same teaching methodology. In any event, the non-admission of the child applicants to nursery school had not prevented them from developing social relations in other settings and contexts. 209. Relying on the Constitutional Court’s case-law, the Government concluded by submitting that, as an immunisation tool preventing selected diseases, vaccination in general constituted a social benefit calling for shared responsibility on the part of the members of society and for social solidarity from each individual, who assumed a minimum risk in order to protect public health. Submissions of the third-party interveners (a) The Government of France 210. The French Government emphasised the importance for States to be able to adopt effective public health policies to combat serious and contagious diseases, as clearly illustrated by the COVID-19 pandemic. 211. In France, the law of 30 December 2017 provides for the compulsory vaccination of children aged up to 24 months against eleven diseases. Previously, vaccination was compulsory in relation to three of these diseases; regarding the other eight, it was simply recommended. With one exception, the list of illnesses is identical to that in the Czech Republic. Under French law, persons with a medical contraindication are exempted from the duty. The law of 30 December 2017 increased the potential penalty for a breach by a parent of the child vaccination duty, from a term of imprisonment of up to six months and a fine of up to EUR 3,750 to a term of imprisonment of up to two years and a fine of up to EUR 30,000. Compliance with the vaccination duty is a prerequisite for admission to childcare structures and services as well as to the education system ( collectivité ). In the absence of a required vaccination, a child may be admitted provisionally on condition that they are fully vaccinated within three months. Continued attendance is subject to proving each year that the vaccination duty has been complied with. 212. Accepting that compulsory vaccination is an interference with the right to respect for private life, the French Government underlined that it served the legitimate aim of protecting health. The necessity of the interference should be assessed in the light of the States’ positive obligations to protect the life and physical integrity of those within their jurisdiction. The importance of those obligations had recently been emphasised by the Secretary General of the Council of Europe in a document entitled “A toolkit for member states – Respecting democracy, rule of law and human rights in the framework of the COVID-19 sanitary crisis”. As there were competing Convention rights at stake and no European consensus over compulsory vaccination, the French Government invited the Court to recognise that, in matters of public health policy and the prevention of the spreading of very serious diseases, the States enjoy a wide margin of appreciation, since they were in the best position to assess, in the light of the health situation on their territory and the means at their disposal, the measures necessary to protect public health. 213. Compulsory vaccination was justified by the serious adverse public health effects of low vaccination coverage. It was important to protect children from an early age and before the onset of a period of risk. In order to protect the community effectively, a vaccination policy had to apply to the greatest possible number of people. A high rate of vaccination was particularly important to protect those who could not be vaccinated. 214. If vaccination were merely voluntary, it was clear that some would seek to benefit from the effect of herd immunity without exposure to the residual risk associated with vaccination. If such behaviour were to become widespread, it would inevitably cause a decrease in vaccination coverage and ultimately the reappearance of pathologies that were thought to be in decline. 215. The French Government referred to Recommendation No. 1317 (1997) of the Parliamentary Assembly of the Council of Europe entitled “Vaccination in Europe”, to Article 11 of the European Social Charter (Revised), and to the Recommendation of the Council of the European Union on strengthened cooperation against vaccine-preventable diseases (2018/C 466/01) (see paragraphs 137, 142 and 150 above). The diseases in question were all very serious, and most of them highly contagious. The effectiveness of the compulsory vaccines was recognised, their negative side effects were limited and medical contraindications were taken into account. The interference represented by such a compulsory vaccination scheme with the right to respect for private life was accordingly proportionate to the objective of promoting the degree of vaccination coverage needed to reach the herd immunity threshold for the benefit of the entire population. (b) The Government of Germany 216. The German Government clarified that compulsory vaccination referred to a duty to receive vaccination in defined situations, not to the coercive administration of a vaccine. They described the context in which domestic legislation had been adopted after an extensive societal and parliamentary debate, with effect from 1 March 2020, providing for compulsory vaccination against measles. Certain categories of persons are required to provide proof of vaccination, immunity or medical contraindication to vaccination before receiving care or being employed in specified types of facilities, including schools and other educational establishments. The vaccination duty is enforced indirectly by the threat of a penalty of up to EUR 2,500, which may be repeated under certain circumstances, and exclusion from educational institutions. The latter are under a duty to report unvaccinated children to the public health authorities. It is not possible to coerce a person into vaccination; consent is always required. Children under the age of one year are exempted. Other exemptions are based either on purely medical grounds or on the non ‑ availability of a vaccine. There are no exceptions permitted on the basis of religion or belief. Compensation is available for any adverse effects even where the vaccine has been administered in conformity with the applicable rules. 217. The German Government observed that compulsory vaccination aimed to protect not only those vaccinated but also society as a whole and, in particular, vulnerable persons who cannot be vaccinated themselves on account of their age or state of health. If the vaccination rate is sufficiently high, the threshold for measles being 95% of the population, a given disease can be eliminated. Despite efforts to raise awareness, the rate of voluntary vaccinations achieved in Germany never reached more than 93%. This was the challenge faced by the legislature when adopting the legislation. 218. In the interest of achieving the 95% threshold, compulsory vaccination starts at a young age. Moreover, young children are particularly vulnerable to measles, given their immature immune systems. In that context, the German Government referred to the recommendation by the respective body of the Robert Koch Institute, the country’s central scientific institution in the field of biomedicine, to the effect that children should be vaccinated twice against measles before they reach the age of two. Moreover, the German Government considered that the compulsory vaccination scheme was best managed in the context of long ‑ term care such as preschools and nurseries, all the more so in view of the increasing number of children attending such facilities. 219. As already established in the relevant Convention case-law, compulsory vaccination constituted an interference with the right to respect for private life, its compatibility with the provisions of Article 8 depending mainly on respect for the principle of proportionality. 220. A penalty for disrespecting the vaccination duty and exclusion from educational institutions as a consequence of it constituted a real but merely indirect interference with personal integrity. The interest in protecting public health and above all the health of those who cannot be vaccinated was of fundamental significance. The State had positive obligations under Article 2 of the Convention in that regard. The vaccinated person not only carried the burden of vaccination but also benefited from the protection it procured. The above-mentioned 93% vaccination rate had been achieved voluntarily, showing that vaccination was widely accepted by the population. The reasons for parents not to have their children vaccinated had mostly to do with convenience and carelessness. Such cases were easily addressed by a legal duty of vaccination. This constituted no major interference with individual rights but merely a small individual sacrifice. Only a small proportion of the population opposed vaccination as a matter of principle. Once the 95% threshold was reached, the disease would be eliminated, further vaccination would no longer be necessary and the vaccination duty would become dispensable. 221. In any event, the Contracting Parties enjoyed a wide margin of appreciation with regard to their health care systems and policies. (c) The Government of Poland 222. The Polish Government submitted that compulsory vaccination schemes did not constitute a violation of the Convention and the sanctions applicable in this context were compatible with the second paragraphs of Articles 8 and 9. 223. Consent to medical treatment was vital to the principles of self ‑ determination and personal autonomy. An involuntary medical treatment constituted an interference with physical and moral integrity. Epidemics of infectious diseases might lead to sanitary, social and economic crises. The Contracting Parties were obliged to combat such diseases in humans. Vaccinations were an optimal preventive measure in that they not only reduced the number of those infected but also could lead to a complete elimination of a given illness. By promoting “herd immunity”, they protected not only those vaccinated but also others who could not be vaccinated. The more people were vaccinated, the better the community’s resilience. Vaccinations were therefore primarily addressed to the youngest generation. According to the current state of medical knowledge, there were no better preventive measures. Widespread vaccination was also recommended by the European Centre for Disease Prevention and Control (see paragraph 147 above). 224. Vaccinations played an important role in shaping public health. They reduced the social consequences of health complications in connection with infectious diseases, including those related to the costs of the necessary treatment. The compulsory vaccination system thus enabled effective prevention of the spreading of dangerous infectious diseases, striking a balance between the fulfilment of the State’s obligations towards citizens to provide the highest level of public health to as many persons as possible and those of citizens towards the State to comply with the vaccination duty. The cost-effectiveness of vaccinations was also a relevant factor. 225. In Poland, a vaccination duty had existed for nearly 60 years as a duty of an administrative nature. It was currently provided for by a statute of 2008, accompanied by a 2011 ordinance of the Minister of Health, adopted on the basis of that statute. In addition, every year the Chief Sanitary Inspector issued Protective Vaccination Programmes addressed to healthcare professionals implementing the compulsory vaccination scheme. Vaccination against eleven diseases currently found on the territory of Europe was compulsory for anyone residing in the Polish Republic. The State Sanitary Inspection was required to enforce compliance with the vaccination duty in relation to children by using administrative powers, the respective regulation and its enforcement never having been challenged. The State was responsible for the safety of the vaccination procedures and it bore the cost of vaccination as well as of the treatment of any possible side ‑ effects. There was also the possibility of opting for commercially obtainable vaccines, the cost of which was not borne by the State. 226. As there was a diversity of legal and healthcare systems, it was inevitable that the Contracting Parties resorted to varying solutions to ensure a sufficient level of vaccination, reflecting the social, economic and cultural differences between them and the local conditions, habits and expectations as well as each country’s economic possibilities. In the absence of a pan ‑ European consensus, the Contracting Parties had a wide margin of appreciation to make arrangements to the best of their knowledge and possibilities. The assessment of the specific system of sanctions in each Contracting Party should not lead to the undermining of the compulsory vaccination system in general. The proportionality of the solutions adopted was rather to be assessed on a case-by-case basis. (d) The Government of Slovakia 227. The Government of Slovakia noted that the present cases were not about the vaccination duty as such but rather about the consequences of non ‑ compliance with that duty, a distinction that was relevant for the assessment under Article 8 of the Convention. 228. Observing that there was no uniform approach among Council of Europe member States, the Government referred to the arrangement in place in Slovakia. There the vaccination duty was laid down in legislation, consisting of an Act of Parliament and an implementing executive decree. The duty applied to everyone, except if there were health contraindications. There was no mechanism for physically enforcing compliance. However, the attending doctor was duty bound to explain to the patient, or to his or her statutory representatives, all relevant aspects and effects of the vaccination to be given. If still not accepted, the doctor had to report the case to the relevant public health authorities, who would summon the person in question for an interview. A persistent refusal to comply could then be seen as a minor offence punishable by a fine of up to EUR 331. The legislation in force did not provide for the exclusion of unvaccinated children from preschool establishments. 229. The Government referred to a judgment of 10 December 2014 (case no. PL. US 10/2013), in which the Constitutional Court of Slovakia found the vaccination duty to be constitutional. It considered that the State was under a positive obligation to ensure the protection of public health. The legislature’s decision to comply with that obligation by means of compulsory vaccination was primarily of a political and expert nature falling within a broad margin of appreciation. It could contravene the individual right to protection of health if it were to be administered despite medical contraindications or if any general adverse effects of vaccination were demonstrated. However, such was not the case. Mandatory vaccination set two constitutional principles in opposition with one another: the protection of public health and respect for private life. It was not possible to reconcile both principles without fundamentally limiting one of them. The specific contraindication exemption was accompanied by a duty on the attending doctors to enquire into the existence of any contraindications prior to administering any vaccine. As with regard to any medication, the quality and safety of vaccines were supervised by the State Agency for Drug Control. In addition to healthcare providers, who were under a duty to report any suspicion of serious or unexpected side-effects of vaccines, any patient, or – in the case of child patients – their parents, could do so. Moreover, the legislative framework provided for compensation in respect of damage to health resulting from a vaccination performed contrary to the applicable rules. There were, to the existing level of medical knowledge, no other effective means to reduce or eradicate infectious diseases. The interference represented by compulsory vaccination with an individual’s right to respect for private life was accordingly justified by the interest in the protection of public health that it served. While it was true that some countries provided for compensation also in respect of health damage resulting from a vaccination performed in accordance with the applicable rules, the absence of such a scheme in Slovakia had no impact on the above conclusion. 230. The Government added that, specifically with regard to children, the crucial criterion was that of their best interests. This was to be determined by whether or not there was any health contraindication to vaccination. A refusal to vaccinate a child without contraindications could be seen as being contrary to his or her best interests. It was accordingly necessary to ensure compliance with the applicable rules by way of sanctions. It was important to protect children from a young age and especially those who could not be vaccinated on account of contraindications. (e) Společnost pacientů s následky po očkování, z.s. (Association of Patients Injured by Vaccines) 231. The intervening association represents patients who suffer from health problems as a result of having been vaccinated. On that basis it described the situations of children who had not been vaccinated at all or were not in full compliance with the applicable vaccination schedule. Those situations mostly involved the children not being admitted to nursery schools, the mother losing her job as she was left with no alternative but to stay at home with her child and the family losing a source of income. Nonetheless, those families would rather change their lifestyle than expose their children to the risks inherent in vaccination. 232. The existing system in fact ignored individual needs stemming, for example, from previous adverse effects on the child in question or its relatives. This was partly the result of an insufficient level of independent knowledge of the risks and negative effects of vaccination among paediatricians, whose continuing education was often sponsored by the pharmaceutical industry. Moreover, there was a lack of transparency as to the criteria for and the method of defining the compulsory vaccination schedule at the expert level. This created room for arbitrariness on the part of the executive and gave rise to mistrust and resistance on the part of the public. This in turn called for counter-measures by the proponents of vaccination, with the overall effect of polarising society and stigmatising those opposed to vaccination. Such counter-measures consisted of: (i) enforcing the duty on paediatricians to perform vaccination; (ii) massive media campaigns promoting vaccination, funded by the pharmaceutical industry; (iii) the exercise of judicial power in a manner sympathetic to the vaccination duty, in particular by the Constitutional Court; and (iv) a disinformation campaign by official bodies promoting vaccination. 233. The number of compulsory vaccinations and the tight schedule for administering them did not allow in practice for the assessment of any individual needs. For similar reasons, vaccination was also performed in situations in which the patient was not sufficiently healthy to receive it. In addition, in view of the interpretation given in practice to the term “permanent contraindication”, it was not feasible to satisfy this ground for an exemption from the vaccination duty. 234. These features of the existing system had an extensive impact on the children concerned and their families. There was a variety of other and strikingly different arrangements at the European level, including in neighbouring countries with an epidemiological situation similar to that in the Czech Republic, where the vaccination system was the strictest. Were the Court to find that the Czech approach was not at odds with Convention requirements, the situation could even worsen and this trend could spread to other jurisdictions. Should the Court find the opposite, the respondent State would be required to limit the power of the executive to define and apply the criteria for and the method for establishing the vaccination schedule and to open this matter to a wider public and political debate. (f) European Centre for Law and Justice (ECLJ) 235. In so far as the intervention of the ECLJ concerned Article 8, this third-party intervener pointed to the importance of the present case in that it concerns respect for the physical and moral welfare of the human being, as guaranteed by the principles that such welfare must prevail over the sole interest of society or science and that an intervention in the health field may be carried out only with the free and informed consent of those concerned, as established in Articles 2 and 5 of the Oviedo Convention. It emphasised the need for regulating these matters, in particular in view of the experience of several countries in the 20th century with regard to various policies in the fields of health and eugenics, and considered that in so doing use could be made of the case-law principles stemming from the cases decided by the Court concerning forced sterilisation. The present cases involved a situation of strongly encouraging individuals to submit to the vaccination duty by means of the threat of a sanction. As no forced vaccination had taken place, the principal question was not so much the legitimacy of the vaccination duty but rather of the sanction imposed on the applicants for failing to comply with it. 236. The intervener submitted that the physical integrity of a person was covered by the concept of “private life” protected by Article 8 of the Convention and that compulsory vaccination – as an involuntary medical intervention – amounted to an interference with that right. The main problem was the question of the necessity of the measures taken by the authorities in relation to the applicants in support of the vaccination policy. 237. In that respect, an adequate approach was to seek to reconcile the competing rights and interests rather than merely to set them against each other. The conciliatory approach involved seeking compromise and applying principles of pluralism and tolerance. 238. The intervener noted that in countries such as Austria, Cyprus, Denmark, Estonia, Finland, Germany, Ireland, Lithuania, Luxembourg, the Netherlands, Norway, Portugal, Spain, Sweden and the United Kingdom, vaccination was not compulsory. Other countries imposed vaccination in respect of between one (Belgium) and twelve (Latvia) diseases. The usefulness and necessity of compulsory vaccination had not been established. 239. Placing emphasis on information and recommendations, combined with more flexible procedures, was an alternative to coercion, and was more respectful of the moral and physical integrity of individuals guaranteed, inter alia, under Article 8 of the Convention. (g) ROZALIO – Rodiče za lepší informovanost a svobodnou volbu v očkování, z.s. 240. This third-party intervener submitted the following information, based on its experience. There was an increasing number of parents in the Czech Republic who wished to be informed on matters concerning vaccination, who questioned its necessity and timing and who were conscious of their inalienable right to take informed decisions on all matters concerning their children. The majority of such parents did not oppose vaccination of their children en bloc but rather desired an individual approach. They did not know how to communicate on these matters with doctors and authorities and the State failed to provide adequate sources of relevant information. 241. Repressive tools for promoting the vaccination rate were inappropriate because they gave rise to mistrust. Verifiable data showed that an increasing repression level corresponded to a decreasing vaccination rate. A better approach was to promote dialogue with parents on an equal footing. 242. The core of the problem was that the PHP Act provided for sanctions on parents who failed to ensure vaccination of their children and excluded such children from public and private preschool facilities, and from further activities such as school trips and retreats. 243. As regards the sanctions on the parents, the intervener referred to the secular objection of conscience as defined by the Constitutional Court in the case of Vavřička and developed in its judgment of 22 December 2015 in another case (see paragraphs 28 and 93 above). In that connection, it pointed out that after 2011 minor-offence proceedings were no longer instituted in the event of parents’ failure to have their children vaccinated but that since 2018 such proceedings were again being instituted. However, the administrative bodies involved in such proceedings did not grant the exception provided for by the constitutional case-law in any individual case and no such exceptions were applied with regard to the admission of children lacking any prescribed vaccination to preschool establishments. Furthermore, the statutory exception from the duty on health grounds required a permanent contraindication and doctors generally interpreted that category restrictively. 244. The threat of a sanction also applied to preschool establishments if they admitted an unvaccinated child, and the inability to have one’s children admitted to such an establishment resulted in the parents either having to stay and provide for their children at home or to bear the costs of alternative care. The affected parents sometimes organised themselves to provide day-care for their children in informal groups. However, all of this had financial and career implications. 245. The intervener then described the legal regime applicable to vaccinations and its functioning in a wider context, its reform, and the consequences of the vaccination duty for various groups of stakeholders. In 2017/18 preschool attendance became mandatory for children aged five (see paragraph 81 above). Those children were no longer obliged to be vaccinated. Nevertheless, there had been no dramatic effects on public health although such children would usually be kept together with younger children whose vaccination remained compulsory. Any consultative processes at the level of the Ministry in connection with the definition of the vaccination schedule were inadequate: a specialised working commission established in 2015 (see paragraph 156 above) had only met five times, had reached no conclusions and had been dormant since 2018. (h) European Forum for Vaccine Vigilance 246. This intervener submitted that, in contrast to other areas of societal importance in a democratic society, where opposing views were institutionally represented, there were no trade unions of any specific profession in the area of public health to defend an individual’s health ‑ related choices. While in the area of justice there were rules adopted by the lawmaker and adjusted by the judiciary, there was no equivalent to this in the area of health. Whilst there had traditionally been a doctors’ professional body and an administrative body in charge of matters of health, there was generally no institution representing the patient. The need for representation of the patient in relation to the health authorities was, in France, reflected in the creation of a specific university doctorate for patient ‑ experts. 247. However, sworn experts in the area of health in France were appointed by a tribunal and operated in a regime that was open to criticism, inter alia, in view of the scope of their specialisation and expertise. For various reasons, basic, pre-clinical and clinical research in relation to vaccines had a limited potential. 248. Moreover, the intervener criticised the use of aluminium-based compounds in the production of vaccines and attributed it to economic considerations on the part of the pharmaceutical industry. 249. In addition, the intervener described in detail various physiological aspects of immunity and commented on an individual clinical case of adverse health effects arising from vaccination. 250. Public pronouncements by health authorities on the side-effects of vaccines were generally prejudiced and official studies in the area of vaccination would commonly not cite their authors and sources. Yet issues such as the efficiency of booster-vaccination of adults and vaccines administered subcutaneously in general were open to debate. 251. Just as there was the premise in dubio pro reo in matters of liability, doubts in the area of vaccination should be interpreted in favour of a free choice by an individual under the principles of primum non nocere and in dubiis abstinere. 252. It was common in the healthcare world to confuse the categories of “informed consent” and a “permission to proceed with a specific procedure granted by the patient”. This might be because despite long studies doctors were not trained to transmit scientific and medical information to patients in a language that the latter understood. It was unclear whether the state of the science regarding therapeutic approaches adequately took into account individual’s physiological responses. 253. Although the vaccination procedure was intrusive in terms of the law and thus normally subject to the requirement of informed consent, in France it was imposed administratively and not subject to free and informed individual consent. 254. There were many reports of serious pathologies which had emerged as a result of a vaccination, such as autism, multiple sclerosis, Guillain-Barré syndrome, macrophage myofasciitis, etc. Some had been demonstrated before the courts in individual cases against pharmaceutical corporations. It was necessary and a matter of scientific and medical responsibility in a democratic society to rule out potential risks by demonstrating that there was no causal link between the pathologies observed after the vaccination and the administration of the vaccine. Failure to do so could not be justified by economic considerations. 255. The current understanding of physiology was still in its infancy and vaccination as practiced presently was an archaic procedure which was provided by the laboratories and the institutions above them. 256. Many of the illnesses against which vaccination was compulsory did not produce serious consequences and the effect of vaccinating against them was that they would mutate and become more pernicious. 257. Lastly, broad immunisation coverage was currently promoted by many governments through an aggressive vaccination policy, although no scientific studies had proven the effectiveness of this approach. On the other hand, some other European countries provided for a free individual choice in the matter. The first imperative step was to ensure that those concerned were amply informed on all relevant aspects of vaccination and it was questionable whether doctors were able to do so. Secondly, there should be a free choice between informed consent and refusal. The Court’s assessment (a) Subject matter of the applications 258. The Court notes that the applicants formulated their Article 8 complaints principally with reference to the fine imposed on Mr Vavřička and to the non-admission of the child applicants to nursery school. In other words, it was the consequences of non-compliance with the vaccination duty that was complained of. 259. However, in the Court’s opinion, the consequences borne by the applicants cannot be meaningfully dissociated from the underlying duty. On the contrary, they flow immediately and directly from the applicants’ attitude towards it and are therefore intrinsically connected to it. 260. In these circumstances, the Court finds that the subject matter of the applicants’ complaints is the vaccination duty and the consequences for them of non-compliance with it. (b) Scope 261. It is common ground among the parties that the complaint raised under Article 8 of the Convention relates to the right to respect for the applicants’ private life. The Court agrees, it being well established that a person’s physical integrity forms part of their “private life” within the meaning of this provision of the Convention, which also encompasses, to a certain degree, the right to establish and develop relationships with other human beings (see Paradiso and Campanelli v. Italy [GC], no. 25358/12, § 159, 24 January 2017, with further references; and also, in relation to vaccination specifically, Boffa and Others, cited above, and Baytüre and Others v. Turkey (dec.), no. 3270/09, 12 March 2013 ). 262. While some of the applicants also referred to the right to respect for family life, the Court does not consider it necessary to examine their Article 8 complaints from this additional perspective. (c) Interference 263. The Court has established in its case-law that compulsory vaccination, as an involuntary medical intervention, represents an interference with the right to respect for private life within the meaning of Article 8 of the Convention (see Solomakhin v. Ukraine (no. 24429/03, § 33, 15 March 2012, with further references). With regard to the present applicants, it is true that, as the Government underlined, none of the contested vaccinations were performed. However, having regard to the subject matter of this case as established above (see paragraph 260), and also to the fact that the child applicants bore the direct consequences of non ‑ compliance with the vaccination duty in that they were not admitted to preschool, the Court is satisfied that, in their regard, there has been an interference with their right to respect for private life. 264. As regards Mr Vavřička, while it is the vaccination of his children that is at issue, the Court considers that this does not lead to a different conclusion. It notes that under domestic law he was personally subject to the duty to have his children vaccinated, and that the consequences of non ‑ compliance with it, i.e. the fine, were borne by him directly as the person legally responsible for their well-being. As noted above, in opposing their vaccination, he explained that he was principally motivated by concern for their physical integrity, fearing that vaccination could cause serious damage to their health. In these circumstances, the Court considers that the facts of the case of Mr Vavřička also may be regarded as disclosing an interference with the right to respect for private life, as indeed was accepted by the Government (see Boffa and Others, cited above, p. 34). (d) Justification for the interference 265. To determine whether this interference entailed a violation of Article 8 of the Convention, the Court must examine whether it was justified under the second paragraph of that Article, that is, whether the interference was “in accordance with the law”, pursued one or more of the legitimate aims specified therein, and to that end was “necessary in a democratic society”. (i) In accordance with the law 266. The Court reiterates that an impugned interference must have some basis in domestic law, which law must be adequately accessible and be formulated with sufficient precision to enable those to whom it applies to regulate their conduct and, if need be with appropriate advice, to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail (see, for example, Dubská and Krejzová v. the Czech Republic [GC], nos. 28859/11 and 28473/12, § 167, 15 November 2016, with a further reference). 267. The Court notes that the vaccination duty has its specific basis in section 46(1) and (4) of the PHP Act, applied in conjunction with the Ministerial Decree issued by the Ministry in the exercise of the power conferred on it to this end by sections 46(6) and 80(1) of the PHP Act (see paragraphs 11, 13 and 74 above). The consequences of non-compliance with the duty stem, for Mr Vavřička, from the application of section 29(1)(f) and (2) of the MO Act (see paragraphs 17 and 83 above) and, for the child applicants, from the application of section 34(5) of the Education Act, in conjunction with section 50 of the PHP Act (see paragraphs 15, 73 and 81 above). The accessibility and foreseeability of those provisions have not been disputed by the applicants. 268. Rather, the applicants’ specific challenge to the lawfulness of the impugned interference rests primarily on their contention, made in reliance on the provisions of Article 4 of the Charter of Fundamental Rights and Freedoms (see paragraph 65 above), that in the given context the term “law” should be understood as referring exclusively to an Act of Parliament, this being how the notion of “law” ( zákon ) is commonly understood at the national level. They take issue with the fact that the Czech vaccination scheme is based on a combination of primary and secondary legislation. 269. The Court reiterates that the term “law” as it appears in the phrases “in accordance with the law” and “prescribed by law” in Articles 8 to 11 of the Convention, is to be understood in its “substantive” sense, not its “formal” one. It thus includes, inter alia, “written law”, not limited to primary legislation but including also legal acts and instruments of lesser rank. In sum, the “law” is the provision in force as the competent courts have interpreted it (see, for example, Sanoma Uitgevers B.V. v. the Netherlands [GC], no. 38224/03, § 83, 14 September 2010, with a further reference). 270. Moreover, the Court observes that the constitutionality of the legislative arrangement in question was examined in extenso and upheld by both the SAC and the Constitutional Court (see paragraphs 36, 60, 86 and 91 above). 271. The Court is therefore satisfied that the interference in question was in accordance with the law within the meaning of the second paragraph of Article 8 of the Convention. (ii) Legitimate aim 272. With regard to the aims pursued by the vaccination duty, as argued by the Government and as recognised by the domestic courts, the objective of the relevant legislation is to protect against diseases which may pose a serious risk to health. This refers both to those who receive the vaccinations concerned as well as those who cannot be vaccinated and are thus in a state of vulnerability, relying on the attainment of a high level of vaccination within society at large for protection against the contagious diseases in question. This objective corresponds to the aims of the protection of health and the protection of the rights of others, recognised by Article 8. In view of the above, there is no need to decide whether other aims recognised as legitimate under Article 8 § 2 may be of relevance where a State takes measures to guard against major disruptions to society caused by serious disease, namely the interests of public safety, the economic well ‑ being of the country, or the prevention of disorder. (iii) Necessity in a democratic society (α) General principles and margin of appreciation 273. The applicable principles may be summarised as follows (see, in particular, Dubská and Krejzová, cited above, §§ 174-8, with further references): - An interference will be considered “necessary in a democratic society” for the achievement of a legitimate aim if it answers a “pressing social need” and, in particular, if the reasons adduced by the national authorities to justify it are “relevant and sufficient” and if it is proportionate to the legitimate aim pursued. - The Convention system has a fundamentally subsidiary role. The national authorities have direct democratic legitimation in so far as the protection of human rights is concerned and, by reason of their direct and continuous contact with the vital forces of their countries, they are in principle better placed than an international court to evaluate local needs and conditions. - It is therefore primarily the responsibility of the national authorities to make the initial assessment as to where the fair balance lies in assessing the need for an interference in the public interest with individuals’ rights under Article 8 of the Convention. Accordingly, in adopting legislation intended to strike a balance between competing interests, States must in principle be allowed to determine the means which they consider to be best suited to achieving the aim of reconciling those interests. - That assessment by the national authorities remains subject to review by the Court, which makes the final evaluation as to whether an interference in a particular case is “necessary”, as that term is to be understood within the meaning of Article 8 of the Convention. - A certain margin of appreciation is, in principle, afforded to domestic authorities as regards that assessment; its breadth depends on a number of factors dictated by the particular case. The margin will tend to be relatively narrow where the right at stake is crucial to the individual’s effective enjoyment of intimate or key rights. Where a particularly important facet of an individual’s existence or identity is at stake, the margin allowed to the State will also be restricted. Where there is no consensus within the Contracting Parties to the Convention, either as to the relative importance of the interest at stake or as to the best means of protecting it, particularly where the case raises sensitive moral or ethical issues, the margin will be wider. 274. The Court has held that matters of healthcare policy are in principle within the margin of appreciation of the domestic authorities, who are best placed to assess priorities, use of resources and social needs (see Hristozov and Others v. Bulgaria (nos. 47039/11 and 358/12, § 119, ECHR 2012 (extracts), with further references). 275. Lastly, the Court reiterates that the respondent State’s margin of appreciation will usually be wide if it is required to strike a balance between competing private and public interests or Convention rights (see, for example, Evans v. the United Kingdom [GC], no. 6339/05, § 77, ECHR 2007 ‑ I, with further references). (β) The margin of appreciation in the present case 276. As the case in hand concerns a compulsory medical intervention, the vaccination duty may be regarded as relating to the individual’s effective enjoyment of intimate rights (see Solomakhin, cited above, § 33). However, the weight of this consideration is lessened by the fact that no vaccinations were administered against the will of the applicants, nor could they have been, as the relevant domestic law does not permit compliance with the duty to be forcibly imposed. 277. On the existence of a consensus, the Court discerns two aspects. Firstly, there is a general consensus among the Contracting Parties, strongly supported by the specialised international bodies, that vaccination is one of the most successful and cost-effective health interventions and that each State should aim to achieve the highest possible level of vaccination among its population (see paragraph 135 above). Accordingly, there is no doubt about the relative importance of the interest at stake. 278. Secondly, when it comes to the best means of protecting the interest at stake, the Court notes that there is no consensus over a single model. Rather, there exists, among the Contracting Parties to the Convention, a spectrum of policies on the vaccination of children, ranging from one based wholly on recommendation, through those that make one or more vaccinations compulsory, to those that make it a matter of legal duty to ensure the complete vaccination of children. The Czech Republic has positioned itself at the more prescriptive end of that spectrum, a position supported and shared by three of the intervening Governments (see the submissions of the French, Polish and Slovak authorities at paragraphs 211, 225 and 228 above). The Court notes, moreover, a recent change of policy in several other Contracting Parties, towards a more prescriptive approach due to a decrease in voluntary vaccination and a resulting decrease in herd immunity (see the submissions of the French and German Governments above at paragraphs 211 and 216 above, and also the 2018 judgment of the Italian Constitutional Court, summarised at paragraphs 106-112 above). 279. While childhood vaccination, being a fundamental aspect of contemporary public health policy, does not in itself raise sensitive moral or ethical issues, the Court accepts that making vaccination a matter of legal duty can be regarded as so doing, as attested by the examples of constitutional case ‑ law set out above (at paragraphs 95-127). It notes in this regard that the recent change of policy in Germany was preceded by an extensive societal and parliamentary debate on the issue. The Court considers, however, that this acknowledged sensitivity is not limited to the perspective of those disagreeing with the vaccination duty. As submitted by the respondent Government, it should also be seen as encompassing the value of social solidarity, the purpose of the duty being to protect the health of all members of society, particularly those who are especially vulnerable with respect to certain diseases and on whose behalf the remainder of the population is asked to assume a minimum risk in the form of vaccination (see in this respect Resolution 1845(2011) of the Parliamentary Assembly of the Council of Europe, set out at paragraph 143 above). The Court will return to this question below. 280. As reiterated above (see paragraph 274), the Court has previously held that healthcare policy matters come within the margin of appreciation of the national authorities. Having regard to the above considerations and applying its well ‑ established case-law principles, the Court takes the view that in the present case, which specifically concerns the compulsory nature of child vaccination, that margin should be a wide one. (γ) Pressing social need 281. Having recognised the importance, generally, of childhood vaccination as a key measure of public health policy, it must next be considered whether the choice of the Czech legislature to make the vaccination of children compulsory can be said to answer to a pressing social need. 282. In this respect it is relevant to reiterate that the Contracting States are under a positive obligation, by virtue of the relevant provisions of the Convention, notably Articles 2 and 8, to take appropriate measures to protect the life and health of those within their jurisdiction (see L.C.B. v. the United Kingdom, 9 June 1998, § 36, Reports of Judgments and Decisions 1998 III; Budayeva and Others v. Russia, nos. 15339/02 and 4 others, §§ 128-130, ECHR 2008 (extracts); Furdík v. Slovakia (dec.), no. 42994/05, 2 December 2008, with further references; Hristozov and Others, cited above, §§ 106 and 116; İbrahim Keskin v. Turkey, no. 10491/12, § 62, 27 March 2018; and Kotilainen and Others v. Finland, no. 62439/12, §§ 78 et seq., 17 September 2020). Similar obligations arise under other widely accepted international human rights instruments, further developed in the practice of the competent monitoring bodies (see, regarding the International Covenant on Economic, Social and Cultural Rights, paragraphs 129-131 above; regarding the Convention on the Rights of the Child, paragraphs 132-134 above; and regarding the European Social Charter, paragraphs 137-140 above). 283. The Court refers to the expert material submitted by the respondent Government, conveying the firm view of the relevant medical authorities of the Czech Republic that the vaccination of children should remain a matter of legal duty in that country, and underlining the risk to individual and public health to which a possible decline in the rate of vaccination would give rise were it to become a merely recommended procedure (see paragraphs 152-153 above). Concerns at the risk associated with a decrease in vaccine coverage were also expressed by the intervening Governments, with emphasis placed on the importance of ensuring that children are immunised against the diseases in question from an early age (see also the decision of the Italian Constitutional Court at paragraph 107 above). Similar concerns have also been raised at European and international levels (see paragraphs 131, 134, 142, 149 and 151). 284. In view of these submissions, and of the clear stance adopted by the expert bodies in this matter, it can be said that in the Czech Republic the vaccination duty represents the answer of the domestic authorities to the pressing social need to protect individual and public health against the diseases in question and to guard against any downward trend in the rate of vaccination among children. (δ) Relevant and sufficient reasons 285. As regards the reasons put forward for the mandatory nature of vaccination in the Czech Republic, the Court has already acknowledged the weighty public health rationale underlying this policy choice, notably in terms of the efficacy and safety of childhood vaccination. It has likewise acknowledged a general consensus supporting the objective, for every State, to attain the highest possible degree of vaccine coverage. Although the applicants argued that the authorities failed to establish that the duty to accept the prescribed vaccinations was necessary and justified (see paragraph 175 above), the Court considers that the Government have clearly set out the reasons behind this choice. It further notes the conclusion of the Czech Constitutional Court that the relevant data from national and international experts in the matter justified pursuing this policy (see paragraph 91 above). While a system of compulsory vaccinations is not the only, or the most widespread, model adopted by European States, the Court reiterates that, in matters of health-care policy, it is the domestic authorities who are best placed to assess priorities, the use of resources and social needs. All of these aspects are relevant in the present context, and they come within the wide margin of appreciation that the Court should accord to the respondent State. 286. Furthermore, the subject matter of the case necessarily raises the question of the best interests of children. In this respect the applicants maintained that it must be primarily for the parents to determine how the best interests of the child are to be served and protected, and that State intervention can be accepted only as a last resort in extreme circumstances. The Government submitted that, in the context of health care, the best interest of the child was served by enjoying the highest attainable standard of health. 287. It is well established in the Court’s case-law that in all decisions concerning children their best interests are of paramount importance. This reflects the broad consensus on this matter, expressed notably in Article 3 of the UN Convention on the Rights of the Child (see, for example, Advisory opinion concerning the recognition in domestic law of a legal parent-child relationship between a child born through a gestational surrogacy arrangement abroad and the intended mother [GC], request no. P16 ‑ 2018 ‑ 001, French Court of Cassation, § 38, 10 April 2019, with further references; and Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 135, ECHR 2010). 288. It follows that there is an obligation on States to place the best interests of the child, and also those of children as a group, at the centre of all decisions affecting their health and development. When it comes to immunisation, the objective should be that every child is protected against serious diseases (see paragraph 133 above). In the great majority of cases, this is achieved by children receiving the full schedule of vaccinations during their early years. Those to whom such treatment cannot be administered are indirectly protected against contagious diseases as long as the requisite level of vaccination coverage is maintained in their community, i.e. their protection comes from herd immunity. Thus, where the view is taken that a policy of voluntary vaccination is not sufficient to achieve and maintain herd immunity, or herd immunity is not relevant due to the nature of the disease (e.g. tetanus), domestic authorities may reasonably introduce a compulsory vaccination policy in order to achieve an appropriate level of protection against serious diseases. The Court understands the health policy of the respondent State to be based on such considerations, in the light of which it can be said to be consistent with the best interests of the children who are its focus (see General comment No. 15 of the United Nations Committee on the Rights of the Child at paragraph 133 above; see also the findings of the Italian Constitutional Court and the judgment of the Court of Appeal of England and Wales in this regard, set out at paragraphs 109 and 128 above). 289. The Court therefore accepts that the choice of the Czech legislature to apply a mandatory approach to vaccination is supported by relevant and sufficient reasons. This finding extends to the specific interferences complained of by the applicants, as the administrative sanction imposed on Mr Vavřička and the non-admission of the child applicants to preschool stemmed directly from the application of the statutory framework. (ε) Proportionality 290. Finally, the Court must assess the proportionality of the interferences complained of, in light of the aim pursued. 291. It will first examine the relevant features of the national system. The vaccination duty concerns nine diseases against which vaccination is considered effective and safe by the scientific community, as is the tenth vaccination, which is given to children with particular health indications (see paragraph 76 above). While the Czech model espouses compulsory vaccination, this is not an absolute duty. An exemption from the duty is permitted notably in respect of children with a permanent contraindication to vaccination. The applicants and two of the intervening third parties were critical of the manner in which this ground is interpreted and applied by the medical profession in the Czech Republic. The Court notes, however, that none of the applicants, either in the domestic proceedings or before this Court, relied on an actual contraindication in relation to any of the vaccinations concerned by their objections. The question of how the exemption is applied in practice is therefore not specifically relevant to their complaints. The Court reiterates that its task is not to review the relevant legislation or practice in the abstract. While it should not overlook the general context, it must as far as possible confine itself to examining the issues raised by the case before it (see, among many other authorities, Paradiso and Campanelli, cited above, § 180). It therefore cannot attach weight to the criticism now levelled at the statutory exemption to the vaccination duty. 292. In the respondent State, an exemption may also be permitted on the basis of the Vavřička case-law of the Constitutional Court (see paragraph 28 above), subsequently developed into the right to a “secular objection of conscience” (see paragraph 93 above). Pursuant to domestic law, this exemption relates to both forms of interference at issue in the present case, and, as confirmed by the Government, it may be relied on directly to challenge a fine or a refusal to admit a child to nursery school. The applicants argued that this exemption would almost never be granted in practice, in particular as regards admission to preschool. Here too the Court can only note that the child applicants did not seek to rely on this exemption during the domestic proceedings. As for the applicant Vavřička’s criticism in this respect, the Court will address it in its examination of his complaint under Article 9 (see paragraph 335 below). 293. While vaccination is a legal duty in the respondent State, the Court reiterates that compliance with it cannot be directly imposed, in the sense that there is no provision allowing for vaccination to be forcibly administered. In common with the arrangements made in the intervening States, the duty is enforced indirectly through the application of sanctions. In the Czech Republic, the sanction can be regarded as relatively moderate, consisting of an administrative fine that may only be imposed once. In Mr Vavřička’s case, while he argued that the fine was high for him in the circumstances (see paragraph 162 above), the Court notes that the amount was towards the lower end of the relevant scale, and cannot be considered as unduly harsh or onerous. 294. Regarding the child applicants, the Court has viewed their non ‑ admission to preschool as an “interference” within the meaning of Article 8 § 2 of the Convention. The applicants perceived it as a form of sanction or penalty on them. However, the Court regards the consequence, which was clearly provided for in primary legislation, of non-compliance with a general legal duty intended to safeguard in particular the health of young children as being essentially protective rather than punitive in nature (see also paragraph 61 above). It will consider the significance of their non ‑ admission when it assesses the intensity of the interference with their right to respect for private life (see paragraphs 306 and 307 below). 295. The Court notes the procedural safeguards provided for in domestic law. As shown by the course of the domestic proceedings brought by the applicants, they had at their disposal both administrative appeals as well as judicial remedies before the administrative courts and ultimately the Constitutional Court. It was therefore open to them to contest the consequences of their non-compliance with the vaccination duty. Contrary to the applicants’ criticism of these remedies, the Court observes that the Constitutional Court’s case-law in particular cannot be fairly described as merely formal or as eschewing a substantive review of the vaccination duty from the perspective of fundamental rights. While it was in different and later proceedings that the Constitutional Court directly addressed the compatibility with the Constitution of the vaccination duty (see paragraph 93 above), finding that the public interest at stake outweighed the objections of the plaintiffs in those proceedings, its reasoning in the proceedings brought by Mr Vavřička, recognising a constitutional exception to the general duty, must be regarded as a meaningful safeguard. Likewise, in the proceedings brought by Ms Novotná, the Constitutional Court held that in order to effectively protect fundamental rights which conflicted with the public interest, the circumstances of each individual case were to be rigorously assessed. The fact that neither applicant was ultimately successful in their constitutional action does not diminish the significance of this jurisprudential safeguard of fundamental rights. 296. Turning now to the applicants’ opposition to the policy of the compulsory vaccination of children, the Court observes that at the heart of their complaint lies a twofold objection. In the first place, they criticised the institutional arrangements in place in the Czech Republic in this area, contending that the discretion granted to the health authorities was excessive and that there were conflicts of interest and a deficit of transparency and public debate. The Court is not persuaded by this criticism. Regarding the scope left to the executive to devise and implement health policy, the Court has already found that no issue of quality of law arises (see paragraphs 267 et seq. above). Moreover it finds pertinent the observation of the SAC that the legislative approach employed makes it possible for the authorities to react with flexibility to the epidemiological situation and to developments in medical science and pharmacology (see paragraph 87 above; see also the remarks of the Italian Constitutional Court at paragraph 107 above). In addition, the domestic system is, as noted above, attended by significant procedural safeguards. 297. As for the integrity of the policy-making process, the Court notes that in reply to the applicants’ claim about conflicts of interest the Government have explained the procedure followed by the NIC, in accordance with relevant European and international standards (see paragraph 200 above). In the light of the elements before it, the Court considers that the applicants have not sufficiently substantiated their allegations that the domestic system is tainted by conflicts of interest, or their suggestion that the position on vaccination adopted by the relevant Czech expert bodies, or by the WHO, is compromised by financial support from pharmaceutical corporations. 298. With respect to the transparency of the domestic system and the extent to which the authorities invite public discussion, the Court notes that a degree of transparency is achieved in this respect through the publication of the minutes of the meetings of the NIC on the website of the Ministry of Health (see paragraph 154 above). As for public participation, the Government submitted that the exclusively expert composition of the NIC was in line with the practice of many European States. The Court notes the initiative taken in 2015 to set up a platform for public discussion of vaccination policy, bringing together medical experts and civil society (see paragraph 156 above), although the applicants and the intervenor ROZALIO indicated that its meetings were few and had ceased by 2018. It cannot be said that the arrangements in force, under which policy is entrusted to an expert body operating under the aegis of the Ministry of Health, in accordance with the model chosen by the legislature and ultimately accountable to it, suffer from a serious deficit of transparency such as to call into question the validity of the vaccination policy followed by the Czech Republic. 299. In addition to their submissions regarding the institutional aspects of the domestic system, the applicants also take issue with the effectiveness and safety of vaccinations, expressing strong concern with regard to the potential adverse effects on health, including in the long term. The Court notes first of all the Government’s explanation that under the domestic system a certain leeway is allowed regarding the choice of vaccine, although only the standard vaccines are free of charge, the cost of other products resting with the parents. Some leeway regarding the vaccination timetable is also permitted, as long as the child is fully immunised by the relevant age (see paragraphs 76 and 203 above). 300. As for the effectiveness of vaccination, the Court refers once again to the general consensus over the vital importance of this means of protecting populations against diseases that may have severe effects on individual health, and that, in the case of serious outbreaks, may cause disruption to society (see paragraph 135 above). 301. With regard to safety, it is not disputed that although entirely safe for the great majority of recipients, in rare cases vaccination may prove to be harmful to an individual, causing serious and lasting damage to his or her health. Complaints in relation to such situations have been the subject of previous proceedings under the Convention (see, in particular, Association of Parents v. the United Kingdom, no. 7154/75, Commission decision of 12 July 1978, DR 14, p. 31; and Baytüre and Others, cited above, § 28). At the oral hearing in the present case, the Government indicated that out of approximately 100,000 children vaccinated annually in the Czech Republic (representing 300,000 vaccinations), the number of cases of serious, potentially lifelong, damage to health stood at five or six. In view of this very rare but undoubtedly very serious risk to the health of an individual, the Convention organs have stressed the importance of taking the necessary precautions before vaccination (see Solomakhin, cited above, § 36; Baytüre and Others, cited above, § 29, and Association of Parents, cited above, pp. 33-34). This evidently refers to checking in each individual case for possible contraindications. It also refers to monitoring the safety of the vaccines in use. In each of these respects the Court sees no reason to question the adequacy of the domestic system. Vaccination is performed by medical professionals only if there is no contraindication, which is checked beforehand as a matter of routine protocol. Vaccines are subject to registration by the State Agency for Drug Control, with all healthcare professionals concerned being under a specific duty to report any suspicion of serious or unexpected side-effects (see paragraphs 78 and 79 above). Accordingly, the safety of the vaccines in use remains under continuous monitoring by the competent authorities. 302. Turning to the question of the availability of compensation on a no ‑ fault or strict liability basis for injury to health caused by vaccination, which was also raised by the applicants, the Court recalls that it has previously examined a case in which the issue of compensation for damage to health caused by vaccination arose, although the vaccine in question was one that was recommended rather than compulsory in the country concerned (see Baytüre and Others, cited above, §§ 28-30). The Court observes, as a general proposition, that the availability of compensation in case of injury to health is indeed relevant to the overall assessment of a system of compulsory vaccination, and it refers in this respect to the obiter dictum of the Czech Constitutional Court (see paragraph 90 above). The same issue has been raised by other constitutional courts (see the example of the relevant Italian case-law at paragraphs 111, 113, 114 and 115 above, and the Slovenian case-law at paragraph 127 above). However, in the context of the present applications, the issue cannot be given any decisive significance. As previously observed, no vaccine was administered contrary to the will or wishes of any of the applicants. For most of them, the facts occurred at a time when compensation was available under the 1964 Civil Code (i.e. before 31 December 2013). Moreover, in none of the domestic proceedings brought by the various applicants was the issue of compensation specifically raised. The dictum of the Constitutional Court came in the context of proceedings brought by other parties, who expressly included among the grounds advanced the question of compensation. The Court deduces from this that the issue was not actually relevant to the present applicants’ refusal of the vaccination duty, which stemmed instead from the concerns noted above. 303. The Court must furthermore consider the intensity of the impugned interferences with the applicants’ enjoyment of their right to respect for private life. 304. Regarding the first applicant, the Court has already found that the administrative fine imposed on him was not excessive in the circumstances (see paragraph 293 above). The Court notes that there were no repercussions for the education of this applicant’s children, who were already teenagers when the sanction was applied to him. 305. With respect to the remaining applicants, their enrolment in preschool was either denied or revoked for lack of the required vaccinations. While the applicants and some of the intervening associations complained about the impact of this on the organisation of family life, notably in financial and career terms, the Court reiterates that the personal scope of the case, examined under the private life head of Article 8, is limited to the applicants themselves and the repercussions for them of the contested measures. 306. The Court accepts that the exclusion of the applicants from preschool meant the loss of an important opportunity for these young children to develop their personalities and to begin to acquire important social and learning skills in a formative pedagogical environment. However, that was the direct consequence of the choice made by their respective parents to decline to comply with a legal duty, the purpose of which is to protect health, in particular in that age group. As stated by the respondent Government, and by some of the intervening Governments, who rely on extensive scientific evidence (see paragraphs 213, 218 and 223 above), early childhood is the optimum time for vaccination. Moreover, the possibility of attendance at preschool of children who cannot be vaccinated for medical reasons depends on a very high rate of vaccination among other children against contagious diseases. The Court considers that it cannot be regarded as disproportionate for a State to require those for whom vaccination represents a remote risk to health to accept this universally practised protective measure, as a matter of legal duty and in the name of social solidarity, for the sake of the small number of vulnerable children who are unable to benefit from vaccination. In the view of the Court, it was validly and legitimately open to the Czech legislature to make this choice, which is fully consistent with the rationale of protecting the health of the population. The notional availability of less intrusive means to achieve this purpose, as suggested by the applicants, does not detract from this finding. 307. The Court would further observe that, while not underestimating the educational opportunity foregone by the child applicants, they were not deprived of all possibility of personal, social and intellectual development, even at the cost of additional, and perhaps considerable, effort and expense on the part of their parents. Moreover, the effects on the child applicants were limited in time. Upon reaching the age of mandatory school attendance, their admission to primary school was not affected by their vaccination status (see paragraph 82 above). As for the specific wish of the applicant Novotná to be educated in accordance with a particular pedagogical philosophy, she did not contradict the Government’s statement that she would have remained eligible for such schooling notwithstanding her non-attendance at preschool level. 308. Lastly, the applicants argued that the system was incoherent, in that while small children were required to be vaccinated, this did not apply to those employed in preschools. The Court notes, however, the Government’s reply that the general vaccination duty, which consists of initial vaccinations as well as booster vaccinations, applies to everyone residing in the Czech Republic permanently or on a long-term basis (see paragraphs 11 and 77 above), so that the staff members concerned should normally have received all the prescribed vaccinations at the relevant time, as required by law. 309. For these reasons, the Court considers that the measures complained of by the applicants, assessed in the context of the domestic system, stand in a reasonable relationship of proportionality to the legitimate aims pursued by the respondent State through the vaccination duty. (στ) Conclusion 310. The Court would clarify that, ultimately, the issue to be determined is not whether a different, less prescriptive policy might have been adopted, as has been done in some other European States. Rather, it is whether, in striking the particular balance that they did, the Czech authorities remained within their wide margin of appreciation in this area. It is the Court’s conclusion that they did not exceed their margin of appreciation and so the impugned measures can be regarded as being “necessary in a democratic society”. 311. Accordingly, there has been no violation of Article 8 of the Convention. 312. In view of this conclusion, there is no need to examine the Government’s non-exhaustion objection in relation to the Article 8 complaints of the applicants Brožík and Dubský (see paragraphs 169 and 170 above). ALLEGED VIOLATION OF ARTICLE 9 OF THE CONVENTION 313. The applicants Vavřička, Novotná and Hornych also complained that the fine imposed on Mr Vavřička and the non-admission of Ms Novotná and Mr Hornych to nursery school was contrary to their rights under Article 9 of the Convention, which provides: “1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. 2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.” The parties’ submissionsThe Government The Government The Government 314. The Government considered that the complaints made in reliance on Article 9 were essentially a restatement of those made under Article 8 and that they should be examined under the latter provision only. As regards Article 9, they argued mainly that the complaints were incompatible ratione materiae with that provision, or in any event manifestly ill-founded on account of a lack of any interference with the applicants’ Article 9 rights. 315. Personal views on compulsory vaccination based on wholly subjective assumptions about its necessity and suitability did not constitute a “belief” within the meaning of Article 9 of the Convention. That provision essentially aimed to protect religions or theories about philosophical or ideological universal values. Lacking sufficient specification and substantiation, the views professed by the applicants did not constitute a coherent view on a fundamental problem and accordingly did not amount to a manifestation of personal beliefs in the sense of Article 9 of the Convention. 316. The Government submitted that there was no clear line in the existing case-law as to what beliefs were or were not regarded as a “religion or beliefs” within the meaning of Article 9 § 2 of the Convention. Even if that provision were in principle to apply to a situation such as that which obtains in the present case, on the specific facts there had been no interference with the applicants’ rights protected by it. This was because, as the domestic courts had established, the applicants had failed to substantiate their objection to the vaccination duty by giving relevant and sufficient reasons. Moreover, the views of the applicants Vavřička and Novotná had not been consistent and so had not been convincing. Mr Vavřička had accepted the vaccination of his children against some diseases. The same was true for Ms Novotná. 317. Furthermore, although Mr Hornych had claimed before the Court that in his case there had been a medical contraindication to vaccination, in the formulation of his complaints he referred to his parents’ philosophical convictions. Yet his argumentation at the national level had been specifically health related. His complaint before the Court was accordingly inadmissible for non-exhaustion of domestic remedies or, as the case may be, as manifestly ill-founded. 318. In addition, to the extent the applicant Novotná relied in her Article 9 complaint on the views and convictions of her parents, such complaint was incompatible ratione personae with that provision. Moreover, in view of their age and maturity at the relevant time, neither she nor the applicant Hornych could have held any views on the subject of sufficient cogency, seriousness, cohesion and importance to come within the ambit of Article 9. 319. The measures complained of had been the result of the application of general and neutrally formulated legislation which applied to all persons regardless of their thought, conscience or religion. Under the Convention case-law, such legislation could not, in principle, interfere with the rights protected under Article 9. 320. Moreover, the Government’s objection under Article 35 § 3 (b) of the Convention in relation to the application of Mr Vavřička (see paragraph 161 above) extended also to his complaint under Article 9. The applicants 321. The applicant Vavřička submitted that his main motivation had been to protect the health of his children. Being convinced that vaccination caused health damage, his conscience would not allow him to have them vaccinated. 322. The applicants Novotná and Hornych relied on a right to parental care in conformity with parental conscience. On the basis of this, it was their parents who had held views protected under Article 9 of the Convention on the applicants’ behalf since at the relevant time, in view of their age, the applicants could not themselves have had any attitude towards vaccination. 323. As regards the consistency of the views asserted under Article 9, the applicants argued that under the Constitutional Court’s jurisprudence what was essential was that the views be constant throughout the proceedings in question. Yet a development of those views prior to or after those proceedings was no impediment to the applicability of the “secular objection of conscience”, as specified by the Constitutional Court. 324. Lastly, the reply of Mr Vavřička to the Government’s objection based on Article 35 § 3 (b) of the Convention extended also to his complaint under Article 9 (see paragraph 162 above). Submissions of the third-party intervenersThe Government of France The Government of France The Government of France 325. The French Government invited the Court to uphold the existing case-law that a neutral statutory duty applicable to everyone regardless of their thought, conscience or religion could not, in principle, interfere with the rights protected by Article 9. However, even if the duty were to be regarded as an interference, for the reasons already set out above it should be accepted as compatible with the requirements of that provision. The Government of Germany 326. The German Government considered it open to doubt whether compulsory vaccination or measures for its enforcement amounted to an interference with the rights protected under Article 9. Not all opinions or convictions constituted beliefs protected by that provision, and the position of the person opposing vaccination would mostly not attain the level of cogency, seriousness, coherence and importance for its applicability. European Centre for Law and Justice 327. This intervener contested the premise adopted by the Commission in Boffa and Others (cited above) as regards the applicability of Article 9 of the Convention to an individual’s reason for opposing a neutral statutory duty applicable to everyone and proposed a different approach. In the ECLJ’s view, the quality of the conviction invoked as well as of the objection based on it should be examined in order to determine which objections warranted respect in a democratic society and which constituted merely a matter of personal convenience that would fall rather within the ambit of Article 8 of the Convention. In determining the quality of the conviction, the questions to be asked were as follows – Is it “sincere” or, depending on the terminology, does it correspond to a “deeply and genuinely held religious or other belief”? Can the content of the conviction be identified and is it substantial? If the conviction is of a religious nature, does it concern a known religion? If the conviction is not of a religious nature, does it warrant respect in a democratic society and does it not offend human dignity? As to the quality of the objection, the intervener argued that it had itself to be a conviction attaining sufficient cogency, seriousness, cohesion and importance to attract the guarantees of Article 9. An objection only on an intermittent or opportunistic basis would not enjoy the protection of that provision. The objector had to be coherent and the objection had to be motivated by a serious and insurmountable conflict between the obligation objected to and the objector’s conscience or convictions and to rest not on reasons of personal benefit or convenience but on genuinely held religious convictions. As regards moral convictions, as distinct from religious convictions, the respect they deserved depended more directly on the nature of the conviction, since objections based on a moral conviction called into question the very justice of the order objected to, whereas objections based on a religious conviction simply tested the tolerance of society. Objections based on moral convictions were to be examined with great care because, if accepted by society, they afforded the objector immunity both from the duty objected to and from sanctions for having disrespected it. Society had acknowledged the legitimacy of such moral objections only in a very few cases, usually in situations where it tolerated an evil because it was considered necessary or inevitable, such as war, abortion or prostitution. 328. In order to determine whether a conscientious objection of a moral nature was genuinely based on moral convictions and rested on a need for justice, four criteria should apply: the objection had to be aimed at respect for the just and the good; the rule objected to had to derogate from a fundamental right or principle; it had to be possible to generalise the objection as being available to everyone; and the objection had to concern an ethically sensitive issue. 329. Where the refusal was motivated by a genuine belief within the meaning of Article 9, and accordingly deserved the respect of society, but without being acknowledged as a requirement of justice, the existence of a sanction was not in itself sufficient to constitute a breach of Article 9. What needed to be examined then was the necessity of the sanction imposed in a given case, which was not different from the examination carried out under Article 8. The difference between the two provisions lay in the fact that Article 9 protected personal conscience, which was linked to the perception of what was just and good, while Article 8 protected only “individual autonomy”, which was independent of it. The Court’s assessment 330. The three applicants have sought to invoke the protection of Article 9 for their critical stance towards vaccination. There is no suggestion on the part of any of them that their stance on this matter is religiously inspired. It is therefore not their religious freedom that is potentially at stake, but their freedom of thought and conscience. 331. The applicability of Article 9 to this particular conviction has not previously been examined by the Court. It was briefly considered by the Commission in Boffa and Others (cited above). In its decision, in so far as relevant, the Commission held that, in protecting the sphere of personal beliefs, Article 9 did not always guarantee the right to behave in the public sphere in a way which was dictated by such beliefs and noted that the term “practice” did not cover each and every act which was motivated or influenced by a belief. It further noted that the obligation to be vaccinated, as laid down in the legislation at issue in that case, applied to everyone, whatever their religion or personal creed. Consequently, it considered that there had been no interference with the freedom protected by Article 9 of the Convention. 332. The Court finds it relevant to refer to its reasoning in the case of Bayatyan v. Armenia ([GC], no. 23459/03, § 110, ECHR 2011, with further references), in which it considered the applicability of Article 9 to the conscientious objection of the applicant, on religious grounds, to military service. It held that “opposition to military service, where it is motivated by a serious and insurmountable conflict between the obligation to serve in the army and a person’s conscience or his deeply and genuinely held religious or other beliefs, constitutes a conviction or belief of sufficient cogency, seriousness, cohesion and importance to attract the guarantees of Article 9.” It further held that whether and to what extent such objection came within the ambit of Article 9 must be assessed in the light of the particular circumstances of the case (ibid.). 333. The Court would also point to its reasoning in the case of Pretty v. the United Kingdom (no. 2346/02, §§ 82-3, ECHR 2002 ‑ III), in which it did not doubt the firmness of that applicant’s views concerning assisted suicide, but observed that not all opinions or convictions constitute beliefs in the sense protected by Article 9. 334. As regards the applicant Vavřička, the Court notes that in its first ruling on his case, the Constitutional Court held that there must be the possibility of an exceptional waiver of the penalty for non-compliance with the vaccination duty where the circumstances call in a fundamental manner for respecting the autonomy of the individual. It underlined the importance of the consistency and credibility of the person’s claims in this regard, and remarked on the lack of consistency on Mr Vavřička’s part in the proceedings until that stage, who had submitted to that court that his objection to vaccination was primarily health-related; philosophical or religious aspects were secondary (see paragraph 29 above). In the subsequent proceedings, it was found by the SAC that the reasons of conscience given by Mr Vavřička had been brought forward only at a late stage and that he had failed to advance any concrete argument concerning his beliefs and the intensity of the interference with them caused by vaccination. 335. The applicant complained that his conscientious stance had been assessed negatively in accordance with a standard that had been developed only at a late stage in the domestic proceedings. The Court considers, on the contrary, that the approach of the domestic courts was reasonable and indeed in keeping with its own interpretation of Article 9, which has been set out above. Having regard to the conclusions reached by the domestic courts in this regard, and considering that the applicant has not further specified or substantiated his complaint under Article 9 in the present proceedings, the Court finds that his critical opinion on vaccination is not such as to constitute a conviction or belief of sufficient cogency, seriousness, cohesion and importance to attract the guarantees of Article 9. 336. The same applies, a fortiori, to the complaints of the applicants Novotná and Hornych, neither of whom even presented such arguments in the domestic proceedings (see paragraphs 37, 45 and 46 above). 337. The Court therefore finds that these complaints are incompatible ratione materiae with the provisions of Article 9 of the Convention within the meaning of Article 35 § 3 (a), and must be rejected in accordance with Article 35 § 4. 338. This finding makes it unnecessary to address the Government’s other inadmissibility objections. ALLEGED VIOLATION OF ARTICLE 2 OF PROTOCOL NO. 1 The parties’ submissions The parties’ submissions The parties’ submissions 339. The child applicants further complained that the refusal of admission to nursery school was contrary to their rights under Article 2 of Protocol No. 1. 340. The Government submitted that the complaints fell to be examined under the first sentence of that Article. In so far as the applicants complained of any repercussions on their parents, such complaints were incompatible ratione personae with this provision. Moreover, and in any event, the complaints were incompatible ratione materiae since Article 2 did not apply to preschool education. In addition, in so far as the complaint was brought by the applicants Brožík and Dubský, it was also subject to the Government’s objection of non ‑ exhaustion of domestic remedies (see paragraph 165 above). 341. The applicants Brožík and Dubský replied to the said objection as indicated above (see paragraph 166 above). Other than that, all of the applicants did no more than reiterate their complaints, referring in particular to the constitutional judgment of 27 January 2015, recognising that the right to education, within the meaning of Article 33 of the Charter of Fundamental Rights and Freedoms, concerned all types and levels of education, including preschool education (see paragraph 62 above). Submissions of the third-party interveners 342. The Government of Germany noted that the exclusion of non ‑ vaccinated children from nursery schools might amount to an interference with their right to education, although it was not clear from the relevant case-law that this level of education was covered by Article 2 of Protocol No. 1. Even if that provision were held to be applicable, the low education level should be taken into account in assessing the proportionality of the restriction. 343. The Government of Slovakia pointed out that the right to education was not absolute and argued that the existing Convention case-law did not specifically acknowledge its applicability to preschool establishments such as kindergartens. 344. The Government of France commented that the non ‑ admission of an unvaccinated child to school was a justified restriction of the right to education. The Court’s assessment 345. In light of the scope of its examination and findings as regards the child applicants’ complaints under Article 8 of the Convention, the Court finds that there is no need to examine their applications separately under Article 2 of Protocol No. 1. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 346. Lastly, some of the applicants also complained of a violation of Articles 2, 6, 13 and 14 of the Convention. 347. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. Accordingly, the remainder of the applications is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. | The Court held that there had been no violation of Article 8 (right to respect for private life) of the Convention in the present case, finding that the measures complained of by the applicants, assessed in the context of the national system, had been in a reasonable relationship of proportionality to the legitimate aims pursued by the respondent State (to protect against diseases which could pose a serious risk to health) through the vaccination duty. The Court clarified that, ultimately, the issue to be determined was not whether a different, less prescriptive policy might have been adopted, as had been done in some other European States. Rather, it was whether, in striking the particular balance that they did, the Czech authorities had exceeded their wide margin of appreciation in this area. The Court concluded that the impugned measures could be regarded as being “necessary in a democratic society”. The Court noted, in particular, that in the Czech Republic the vaccination duty was strongly supported by the relevant medical authorities. It could be said to represent the national authorities’ answer to the pressing social need to protect individual and public health against the diseases in question and to guard against any downward trend in the rate of vaccination among children. The judgment also emphasised that in all decisions concerning children, their best interests must be of paramount importance. With regard to immunisation, the objective had to be that every child was protected against serious diseases, through vaccination or by virtue of herd immunity. The Czech health policy could therefore be said to be consistent with the best interests of the children who were its focus. The Court further noted that the vaccination duty concerned nine diseases against which vaccination was considered effective and safe by the scientific community, as was the tenth vaccination, which was given to children with particular health indications. |
264 | (Suspected) terrorists | II. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND PRACTICE A. DEPORTATION 57. By section 3 (5) (b) of the Immigration Act 1971 ("the 1971 Act"), a person who is not a British citizen is liable to deportation inter alia if the Secretary of State deems this to be "conducive to the public good". B. Appeal against deportation and the advisory panel procedure 58. There is a right of appeal to an adjudicator, and ultimately to an appeal tribunal, against a decision to make a deportation order (section 15 (1) of the 1971 Act) except in cases where the ground of the decision to deport was that the deportation would be conducive to the public good as being in the interests of national security or of the relations between the United Kingdom and any other country or for other reasons of a political nature (section 15(3) of the 1971 Act). 59. This exception was maintained in the Asylum and Immigration Appeals Act 1993, which came into force in July 1993. 60. Cases in which a deportation order has been made on national security or political grounds are subject to a non-statutory advisory procedure, set out in paragraph 157 of the Statement of Changes in Immigration Rules (House of Commons Paper 251 of 1990). The person concerned is given an opportunity to make written and/or oral representations to an advisory panel, to call witnesses on his behalf, and to be assisted by a friend, but he is not permitted to have legal representation before the panel. The Home Secretary decides how much information about the case against him may be communicated to the person concerned. The panel's advice to the Home Secretary is not disclosed, and the latter is not obliged to follow it. C. The United Nations 1951 Convention on the Status of Refugees 61. The United Kingdom is a party to the United Nations 1951 Convention on the Status of Refugees ("the 1951 Convention"). A "refugee" is defined by Article 1 of the Convention as a person who is outside the country of his nationality due to "a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion". Article 32 of the 1951 Convention provides: "1. The Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security or public order. 2. The expulsion of such a refugee shall only be in pursuance of a decision reached in accordance with due process of law ..." Article 33 provides: " 1. No Contracting State shall expel or return a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. 2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country." 62. Rule 161 of the Immigration Rules (House of Commons Paper 251 of 1990) provides that: "Where a person is a refugee full account is to be taken of the provisions of the Convention and Protocol relating to the Status of Refugees ..." 63. In a case where a person to be deported for national security reasons claims asylum, the Secretary of State must balance the interest of the individual as a refugee against the risk to national security (R. v. Secretary of State for the Home Department, ex parte Chahal [1994] Immigration Appeal Reports, p. 107 - see paragraph 41 above). D. Detention pending deportation 64. A person may be detained under the authority of the Secretary of State after the service upon him of a notice of intention to deport and pending the making of a deportation order, and also after the making of an order, pending his removal or departure from the country (paragraphs 2 (2) and (3) of Schedule III to the 1971 Act). 65. Any person in detention is entitled to challenge the lawfulness of his detention by way of a writ of habeas corpus. This is issued by the High Court to procure the production of a person in order that the circumstances of his detention may be inquired into. The detainee must be released if unlawfully detained (Habeas Corpus Act 1679 and Habeas Corpus Act 1816, section 1). Only one application for habeas corpus on the same grounds may be made by an individual in detention, unless fresh evidence is adduced in support (Administration of Justice Act 1960, section 14 (2)). In addition, a detainee may apply for judicial review of the decision to detain him (see paragraphs 43 above and 66-67 below). In conjunction with either an application for habeas corpus or judicial review, it is possible to apply for bail (that is, temporary release) pending the decision of the court. E. Judicial review 66. Decisions of the Home Secretary to refuse asylum, to make a deportation order or to detain pending deportation are liable to challenge by way of judicial review and may be quashed by reference to the ordinary principles of English public law. These principles do not permit the court to make findings of fact on matters within the province of the Secretary of State or to substitute its discretion for the Minister's. The court may quash his decision only if he failed to interpret or apply English law correctly, if he failed to take account of issues which he was required by law to address, or if his decision was so irrational or perverse that no reasonable Secretary of State could have made it (Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1948] 1 King's Bench Reports, p. 223). 67. Where national security issues are involved, the courts retain a power of review, but it is a limited one because: "the decision on whether the requirements of national security outweigh the duty of fairness in a particular case is a matter for the Government to decide, not for the courts; the Government alone has access to the necessary information and in any event the judicial process is unsuitable for reaching decisions on national security" (Council of Civil Service Unions v. Minister for the Civil Service [1985] Appeal Cases, p. 374, at p. 402). See also R. v. Secretary of State for the Home Department, ex parte Cheblak [1991] 2 All England Reports, p. 9, where a similar approach was taken by the Court of Appeal. PROCEEDINGS BEFORE THE COMMISSION 68. In the application of 27 July 1993 (no. 22414/93) to the Commission (as declared admissible), the first applicant complained that his deportation to India would expose him to a real risk of torture or inhuman or degrading treatment in violation of Article 3 of the Convention (art. 3); that his detention had been too long and that the judicial control thereof had been ineffective and slow in breach of Article 5 paras. 1 and 4 (art. 5-1, art. 5-4); and that, contrary to Article 13 (art. 13), he had had no effective domestic remedy for his Convention claims because of the national security elements in his case. All the applicants also complained that the deportation of the first applicant would breach their right to respect for family life under Article 8 (art. 8), for which Convention claim they had no effective domestic remedy, contrary to Article 13 (art. 13). 69. On 1 September 1994 the Commission declared the application admissible. In its report of 27 June 1995 (Article 31) (art. 31) it expressed the unanimous opinion that there would be violations of Articles 3 and 8 (art. 3, art. 8) if the first applicant were deported to India; that there had been a violation of Article 5 para. 1 (art. 5-1) by reason of the length of his detention; and that there had been a violation of Article 13 (art. 13). The Commission also concluded (by sixteen votes to one) that it was not necessary to examine the complaints under Article 5 para. 4 of the Convention (art. 5-4). The full text of the Commission's opinion and of the partly dissenting opinion contained in the report is reproduced as annex to this judgment [3]. FINAL SUBMISSIONS TO THE COURT 70. At the hearing on 25 March 1996 the Government, as they had done in their memorial, invited the Court to hold that the deportation order, if implemented, would not amount to a violation of Articles 3 and 8 of the Convention (art. 3, art. 8), and that there had been no breaches of Articles 5 and 13 (art. 5, art. 13). 71. On the same occasion the applicants reiterated their requests to the Court, set out in their memorial, to find violations of Articles 3, 5, 8 and 13 (art. 3, art. 5, art. 8, art. 13) and to award them just satisfaction under Article 50 (art. 50). AS TO THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION (art. 3) 72. The first applicant complained that his deportation to India would constitute a violation of Article 3 of the Convention (art. 3), which states: "No one shall be subjected to torture or to inhuman or degrading treatment or punishment." The Commission upheld this complaint, which the Government contested. A. Applicability of Article 3 (art. 3) in expulsion cases 73. As the Court has observed in the past, Contracting States have the right, as a matter of well-established international law and subject to their treaty obligations including the Convention, to control the entry, residence and expulsion of aliens. Moreover, it must be noted that the right to political asylum is not contained in either the Convention or its Protocols (see the Vilvarajah and Others v. the United Kingdom judgment of 30 October 1991, Series A no. 215, p. 34, para. 102). 74. However, it is well established in the case-law of the Court that expulsion by a Contracting State may give rise to an issue under Article 3 (art. 3), and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person in question, if expelled, would face a real risk of being subjected to treatment contrary to Article 3 (art. 3) in the receiving country. In these circumstances, Article 3 (art. 3) implies the obligation not to expel the person in question to that country (see the Soering v. the United Kingdom judgment of 7 July 1989, Series A no. 161, p. 35, paras. 90-91, the Cruz Varas and Others v. Sweden judgment of 20 March 1991, Series A no. 201, p. 28, paras. 69-70, and the above-mentioned Vilvarajah and Others judgment, p. 34, para. 103). The Government contested this principle before the Commission but accepted it in their pleadings before the Court. B. Expulsion cases involving an alleged danger to national security 75. The Court notes that the deportation order against the first applicant was made on the ground that his continued presence in the United Kingdom was unconducive to the public good for reasons of national security, including the fight against terrorism (see paragraph 25 above). The parties differed as to whether, and if so to what extent, the fact that the applicant might represent a danger to the security of the United Kingdom affected that State's obligations under Article 3 (art. 3). 76. Although the Government's primary contention was that no real risk of ill-treatment had been established (see paragraphs 88 and 92 below), they also emphasised that the reason for the intended deportation was national security. In this connection they submitted, first, that the guarantees afforded by Article 3 (art. 3) were not absolute in cases where a Contracting State proposed to remove an individual from its territory. Instead, in such cases, which required an uncertain prediction of future events in the receiving State, various factors should be taken into account, including the danger posed by the person in question to the security of the host nation. Thus, there was an implied limitation to Article 3 (art. 3) entitling a Contracting State to expel an individual to a receiving State even where a real risk of ill-treatment existed, if such removal was required on national security grounds. The Government based this submission in the first place on the possibility of implied limitations as recognised in the Court's case-law, particularly paragraphs 88 and 89 of its above-mentioned Soering judgment. In support, they furthermore referred to the principle under international law that the right of an alien to asylum is subject to qualifications, as is provided for, inter alia, by Articles 32 and 33 of the United Nations 1951 Convention on the Status of Refugees (see paragraph 61 above). In the alternative, the threat posed by an individual to the national security of the Contracting State was a factor to be weighed in the balance when considering the issues under Article 3 (art. 3). This approach took into account that in these cases there are varying degrees of risk of ill-treatment. The greater the risk of ill-treatment, the less weight should be accorded to the threat to national security. But where there existed a substantial doubt with regard to the risk of ill-treatment, the threat to national security could weigh heavily in the balance to be struck between protecting the rights of the individual and the general interests of the community. This was the case here: it was at least open to substantial doubt whether the alleged risk of ill-treatment would materialise; consequently, the fact that Mr Chahal constituted a serious threat to the security of the United Kingdom justified his deportation. 77. The applicant denied that he represented any threat to the national security of the United Kingdom, and contended that, in any case, national security considerations could not justify exposing an individual to the risk of ill-treatment abroad any more than they could justify administering torture to him directly. 78. The Commission, with whom the intervenors (see paragraph 6 above) agreed, rejected the Government's arguments. It referred to the Court's Vilvarajah and Others judgment (cited at paragraph 73 above, p. 36, para. 108) and expressed the opinion that the guarantees afforded by Article 3 (art. 3) were absolute in character, admitting of no exception. At the hearing before the Court, the Commission's Delegate suggested that the passages in the Court's Soering judgment upon which the Government relied (see paragraph 76 above) might be taken as authority for the view that, in a case where there were serious doubts as to the likelihood of a person being subjected to treatment or punishment contrary to Article 3 (art. 3), the benefit of that doubt could be given to the deporting State whose national interests were threatened by his continued presence. However, the national interests of the State could not be invoked to override the interests of the individual where substantial grounds had been shown for believing that he would be subjected to ill-treatment if expelled. 79. Article 3 (art. 3) enshrines one of the most fundamental values of democratic society (see the above-mentioned Soering judgment, p. 34, para. 88). The Court is well aware of the immense difficulties faced by States in modern times in protecting their communities from terrorist violence. However, even in these circumstances, the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the victim's conduct. Unlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4 (P1, P4), Article 3 (art. 3) makes no provision for exceptions and no derogation from it is permissible under Article 15 (art. 15) even in the event of a public emergency threatening the life of the nation (see the Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, p. 65, para. 163, and also the Tomasi v. France judgment of 27 August 1992, Series A no. 241-A, p. 42, para. 115). 80. The prohibition provided by Article 3 (art. 3) against ill-treatment is equally absolute in expulsion cases. Thus, whenever substantial grounds have been shown for believing that an individual would face a real risk of being subjected to treatment contrary to Article 3 (art. 3) if removed to another State, the responsibility of the Contracting State to safeguard him or her against such treatment is engaged in the event of expulsion (see the above-mentioned Vilvarajah and Others judgment, p. 34, para. 103). In these circumstances, the activities of the individual in question, however undesirable or dangerous, cannot be a material consideration. The protection afforded by Article 3 (art. 3) is thus wider than that provided by Articles 32 and 33 of the United Nations 1951 Convention on the Status of Refugees (see paragraph 61 above). 81. Paragraph 88 of the Court's above-mentioned Soering judgment, which concerned extradition to the United States, clearly and forcefully expresses the above view. It should not be inferred from the Court's remarks concerning the risk of undermining the foundations of extradition, as set out in paragraph 89 of the same judgment, that there is any room for balancing the risk of ill-treatment against the reasons for expulsion in determining whether a State's responsibility under Article 3 (art. 3) is engaged. 82. It follows from the above that it is not necessary for the Court to enter into a consideration of the Government's untested, but no doubt bona fide, allegations about the first applicant's terrorist activities and the threat posed by him to national security. C. Application of Article 3 (art. 3) in the circumstances of the case 1. The point of time for the assessment of the risk 83. Although there were differing views on the situation in India and in Punjab (see paragraphs 87-91 below), it was agreed that the violence and instability in that region reached a peak in 1992 and had been abating ever since. For this reason, the date taken by the Court for its assessment of the risk to Mr Chahal if expelled to India is of importance. 84. The applicant argued that the Court should consider the position in June 1992, at the time when the decision to deport him was made final (see paragraph 35 above). The purpose of the stay on removal requested by the Commission (see paragraph 4 above) was to prevent irremediable damage and not to afford the High Contracting Party with an opportunity to improve its case. Moreover, it was not appropriate that the Strasbourg organs should be involved in a continual fact-finding operation. 85. The Government, with whom the Commission agreed, submitted that because the responsibility of the State under Article 3 of the Convention (art. 3) in expulsion cases lies in the act of exposing an individual to a real risk of ill-treatment, the material date for the assessment of risk was the time of the proposed deportation. Since Mr Chahal had not yet been expelled, the relevant time was that of the proceedings before the Court. 86. It follows from the considerations in paragraph 74 above that, as far as the applicant's complaint under Article 3 (art. 3) is concerned, the crucial question is whether it has been substantiated that there is a real risk that Mr Chahal, if expelled, would be subjected to treatment prohibited by that Article (art. 3). Since he has not yet been deported, the material point in time must be that of the Court's consideration of the case. It follows that, although the historical position is of interest in so far as it may shed light on the current situation and its likely evolution, it is the present conditions which are decisive. 2. The assessment of the risk of ill-treatment (a) The arguments ( i ) General conditions 87. It was the applicant's case that the Government's assessment of conditions in India and Punjab had been profoundly mistaken throughout the domestic and Strasbourg proceedings. He referred to a number of reports by governmental bodies and by intergovernmental and non-governmental organisations on the situation in India generally and in Punjab in particular, with emphasis on those reports concerning 1994 and 1995 (see paragraphs 49-56 above) and argued that this material established the contention that human rights abuse in India by the security forces, especially the police, remained endemic. In response to the Government's offer to return him to the part of India of his choice, he asserted that the Punjab police had abducted and killed militant Sikhs outside their home State in the past. Although he accepted that there had been some improvements in Punjab since the peak of unrest in 1992, he insisted that there had been no fundamental change of regime. On the contrary, what emerged from the above reports was the continuity of the practices of the security agencies. In this respect he pointed to the fact that the director general of the Punjab police, who had been responsible for many human rights abuses during his term of office between 1992 and 1995, had been replaced upon his retirement by his former deputy and intelligence chief. 88. The Government contended that there would be no real risk of Mr Chahal being ill-treated if the deportation order were to be implemented and emphasised that the latter was to be returned to whichever part of India he chose, and not necessarily to Punjab. In this context they pointed out that they regularly monitored the situation in India through the United Kingdom High Commission in New Delhi. It appeared from this information that positive concrete steps had been taken and continued to be taken to deal with human rights abuses. Specific legislation had been introduced in this regard; the National Human Rights Commission, which performed an important function, continued to strengthen and develop; and steps had been taken by both the executive and judicial authorities to deal with the remaining misuse of power. The situation in India generally was therefore such as to support their above contention. Furthermore, with reference to the matters set out in paragraphs 45-48 above, they contended that the situation in Punjab had improved substantially in recent years. They stressed that there was now little or no terrorist activity in that State. An ombudsman had been established to look into complaints of misuse of power and the new Chief Minister had publicly declared the government's intentions to stamp out human rights abuses. Legal proceedings had been brought against police officers alleged to have been involved in unlawful activity. 89. Amnesty International in its written submissions informed the Court that prominent Sikh separatists still faced a serious risk of "disappearance", detention without charge or trial, torture and extrajudicial execution, frequently at the hands of the Punjab police. It referred to its 1995 report which documented a pattern of human rights violations committed by officers of the Punjab police acting in under-cover operations outside their home State (see paragraph 55 above). 90. The Government, however, urged the Court to proceed with caution in relation to the material prepared by Amnesty International, since it was not possible to verify the facts of the cases referred to. Furthermore, when studying these reports it was tempting to lose sight of the broader picture of improvement by concentrating too much on individual cases of alleged serious human rights abuses. Finally, since the situation in Punjab had changed considerably in recent years, earlier reports prepared by Amnesty and other organisations were now of limited use. 91. On the basis of the material before it, the Commission accepted that there had been an improvement in the conditions prevailing in India and, more specifically, in Punjab. However, it was unable to find in the recent material provided by the Government any solid evidence that the Punjab police were now under democratic control or that the judiciary had been able fully to reassert its own independent authority in the region. (ii) Factors specific to Mr Chahal 92. Those appearing before the Court also differed in their assessment of the effect which Mr Chahal's notoriety would have on his security in India. In the Government's view, the Indian Government were likely to be astute to ensure that no ill-treatment befell Mr Chahal, knowing that the eyes of the world would be upon him. Furthermore, in June 1992 and December 1995 they had sought and received assurances from the Indian Government (see paragraph 37 above). 93. The applicant asserted that his high profile would increase the danger of persecution. By taking the decision to deport him on national security grounds the Government had, as was noted by Mr Justice Popplewell in the first judicial review hearing (see paragraph 34 above), in effect publicly branded him a terrorist. Articles in the Indian press since 1990 indicated that he was regarded as such in India, and a number of his relatives and acquaintances had been detained and ill-treated in Punjab because of their connection to him. The assurances of the Indian Government were of little value since that Government had shown themselves unable to control the security forces in Punjab and elsewhere. The applicant also referred to examples of well-known personalities who had recently "disappeared". 94. For the Commission, Mr Chahal, as a leading Sikh militant suspected of involvement in acts of terrorism, was likely to be of special interest to the security forces, irrespective of the part of India to which he was returned. (b) The Court's approach 95. Under the Convention system, the establishment and verification of the facts is primarily a matter for the Commission (Articles 28 para. 1 and 31) (art. 28-1, art. 31). Accordingly, it is only in exceptional circumstances that the Court will use its powers in this area (see the Cruz Varas and Others judgment mentioned at paragraph 74 above, p. 29, para. 74). 96. However, the Court is not bound by the Commission's findings of fact and is free to make its own assessment. Indeed, in cases such as the present the Court's examination of the existence of a real risk of ill-treatment must necessarily be a rigorous one, in view of the absolute character of Article 3 (art. 3) and the fact that it enshrines one of the fundamental values of the democratic societies making up the Council of Europe (see the Vilvarajah and Others judgment mentioned at paragraph 73 above, p. 36, para. 108). 97. In determining whether it has been substantiated that there is a real risk that the applicant, if expelled to India, would be subjected to treatment contrary to Article 3 (art. 3), the Court will assess all the material placed before it and, if necessary, material obtained of its own motion (see the above-mentioned Vilvarajah and Others judgment, p. 36, para. 107). Furthermore, since the material point in time for the assessment of risk is the date of the Court's consideration of the case (see paragraph 86 above), it will be necessary to take account of evidence which has come to light since the Commission's review. 98. In view of the Government's proposal to return Mr Chahal to the airport of his choice in India, it is necessary for the Court to evaluate the risk of his being ill-treated with reference to conditions throughout India rather than in Punjab alone. However, it must be borne in mind that the first applicant is a well-known supporter of Sikh separatism. It follows from these observations that evidence relating to the fate of Sikh militants at the hands of the security forces outside the State of Punjab is of particular relevance. 99. The Court has taken note of the Government's comments relating to the material contained in the reports of Amnesty International (see paragraph 90 above). Nonetheless, it attaches weight to some of the most striking allegations contained in those reports, particularly with regard to extrajudicial killings allegedly perpetrated by the Punjab police outside their home State and the action taken by the Indian Supreme Court, the West Bengal State Government and the Union Home Secretary in response (see paragraph 55 above). Moreover, similar assertions were accepted by the United Kingdom Immigration Appeal Tribunal in Charan Singh Gill v. Secretary of State for the Home Department (see paragraph 54 above) and were included in the 1995 United States' State Department report on India (see paragraph 52 above). The 1994 National Human Rights Commission's report on Punjab substantiated the impression of a police force completely beyond the control of lawful authority (see paragraph 49 above). 100. The Court is persuaded by this evidence, which has been corroborated by material from a number of different objective sources, that, until mid-1994 at least, elements in the Punjab police were accustomed to act without regard to the human rights of suspected Sikh militants and were fully capable of pursuing their targets into areas of India far away from Punjab. 101. The Commission found in paragraph 111 of its report that there had in recent years been an improvement in the protection of human rights in India, especially in Punjab, and evidence produced subsequent to the Commission's consideration of the case indicates that matters continue to advance. In particular, it would appear that the insurgent violence in Punjab has abated; the Court notes the very substantial reduction in terrorist-related deaths in the region as indicated by the respondent Government (see paragraph 45 above). Furthermore, other encouraging events have reportedly taken place in Punjab in recent years, such as the return of democratic elections, a number of court judgments against police officers, the appointment of an ombudsman to investigate abuses of power and the promise of the new Chief Minister to "ensure transparency and accountability" (see paragraphs 46 and 48 above). In addition, the 1996 United States' State Department report asserts that during 1995 "there was visible progress in correcting patterns of abuse by the [Punjab] police" (see paragraph 53 above). 102. Nonetheless, the evidence demonstrates that problems still persist in connection with the observance of human rights by the security forces in Punjab. As the respondent Government themselves recounted, the United Kingdom High Commission in India continues to receive complaints about the Punjab police, although in recent months these have related mainly to extortion rather than to politically motivated abuses (see paragraph 47 above). Amnesty International alleged that "disappearances" of notable Sikhs at the hands of the Punjab police continued sporadically throughout 1995 (see paragraph 56 above) and the 1996 State Department report referred to the killing of two Sikh militants that year (see paragraph 53 above). 103. Moreover, the Court finds it most significant that no concrete evidence has been produced of any fundamental reform or reorganisation of the Punjab police in recent years. The evidence referred to above (paragraphs 49-56) would indicate that such a process was urgently required, and indeed this was the recommendation of the NHRC (see paragraph 49 above). Although there was a change in the leadership of the Punjab police in 1995, the director general who presided over some of the worst abuses this decade has only been replaced by his former deputy and intelligence chief (see paragraph 87 above). Less than two years ago this same police force was carrying out well-documented raids into other Indian States (see paragraph 100 above) and the Court cannot entirely discount the applicant's claims that any recent reduction in activity stems from the fact that key figures in the campaign for Sikh separatism have all either been killed, forced abroad or rendered inactive by torture or the fear of torture. Furthermore, it would appear from press reports that evidence of the full extent of past abuses is only now coming to light (see paragraph 53 above). 104. Although the Court is of the opinion that Mr Chahal, if returned to India, would be most at risk from the Punjab security forces acting either within or outside State boundaries, it also attaches significance to the fact that attested allegations of serious human rights violations have been levelled at the police elsewhere in India. In this respect, the Court notes that the United Nations' Special Rapporteur on torture has described the practice of torture upon those in police custody as "endemic" and has complained that inadequate measures are taken to bring those responsible to justice (see paragraph 51 above). The NHRC has also drawn attention to the problems of widespread, often fatal, mistreatment of prisoners and has called for a systematic reform of the police throughout India (see paragraph 50 above). 105. Although the Court does not doubt the good faith of the Indian Government in providing the assurances mentioned above (paragraph 92), it would appear that, despite the efforts of that Government, the NHRC and the Indian courts to bring about reform, the violation of human rights by certain members of the security forces in Punjab and elsewhere in India is a recalcitrant and enduring problem (see paragraph 104 above). Against this background, the Court is not persuaded that the above assurances would provide Mr Chahal with an adequate guarantee of safety. 106. The Court further considers that the applicant's high profile would be more likely to increase the risk to him of harm than otherwise. It is not disputed that Mr Chahal is well known in India to support the cause of Sikh separatism and to have had close links with other leading figures in that struggle (see paragraphs 17 and 20 above). The respondent Government have made serious, albeit untested, allegations of his involvement in terrorism which are undoubtedly known to the Indian authorities. The Court is of the view that these factors would be likely to make him a target of interest for hard-line elements in the security forces who have relentlessly pursued suspected Sikh militants in the past (see paragraphs 49-56 above). 107. For all the reasons outlined above, in particular the attested involvement of the Punjab police in killings and abductions outside their State and the allegations of serious human rights violations which continue to be levelled at members of the Indian security forces elsewhere, the Court finds it substantiated that there is a real risk of Mr Chahal being subjected to treatment contrary to Article 3 (art. 3) if he is returned to India. Accordingly, the order for his deportation to India would, if executed, give rise to a violation of Article 3 (art. 3). II. ALLEGED VIOLATIONS OF ARTICLE 5 OF THE CONVENTION (art. 5) A. Article 5 para. 1 (art. 5-1) 108. The first applicant complained that his detention pending deportation constituted a violation of Article 5 para. 1 of the Convention (art. 5-1), which provides (so far as is relevant): "Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (f) the lawful arrest or detention ... of a person against whom action is being taken with a view to deportation ..." 109. Mr Chahal has been held in Bedford Prison since 16 August 1990 (see paragraph 25 above). It was not disputed that he had been detained "with a view to deportation" within the meaning of Article 5 para. 1 (f) (art. 5-1-f). However, he maintained that his detention had ceased to be "in accordance with a procedure prescribed by law" for the purposes of Article 5 para. 1 (art. 5-1) because of its excessive duration. In particular, the applicant complained about the length of time (16 August 1990 - 27 March 1991) taken to consider and reject his application for refugee status; the period (9 August 1991 - 2 December 1991) between his application for judicial review of the decision to refuse asylum and the national court's decision; and the time required (2 December 1991 - 1 June 1992) for the fresh decision refusing asylum. 110. The Commission agreed, finding that the above proceedings were not pursued with the requisite speed and that the detention therefore ceased to be justified. 111. The Government, however, asserted that the various proceedings brought by Mr Chahal were dealt with as expeditiously as possible. 112. The Court recalls that it is not in dispute that Mr Chahal has been detained "with a view to deportation" within the meaning of Article 5 para. 1 (f) (art. 5-1-f) (see paragraph 109 above). Article 5 para. 1 (f) (art. 5-1-f) does not demand that the detention of a person against whom action is being taken with a view to deportation be reasonably considered necessary, for example to prevent his committing an offence or fleeing; in this respect Article 5 para. 1 (f) (art. 5-1-f) provides a different level of protection from Article 5 para. 1 (c) (art. 5-1-c). Indeed, all that is required under this provision (art. 5-1-f) is that "action is being taken with a view to deportation". It is therefore immaterial, for the purposes of Article 5 para. 1 (f) (art. 5-1-f), whether the underlying decision to expel can be justified under national or Convention law. 113. The Court recalls, however, that any deprivation of liberty under Article 5 para. 1 (f) (art. 5-1-f) will be justified only for as long as deportation proceedings are in progress. If such proceedings are not prosecuted with due diligence, the detention will cease to be permissible under Article 5 para. 1 (f) (art. 5-1-f) (see the Quinn v. France judgment of 22 March 1995, Series A no. 311, p. 19, para. 48, and also the Kolompar v. Belgium judgment of 24 September 1992, Series A no. 235-C, p. 55, para. 36). It is thus necessary to determine whether the duration of the deportation proceedings was excessive. 114. The period under consideration commenced on 16 August 1990, when Mr Chahal was first detained with a view to deportation. It terminated on 3 March 1994, when the domestic proceedings came to an end with the refusal of the House of Lords to allow leave to appeal (see paragraphs 25 and 42 above). Although he has remained in custody until the present day, this latter period must be distinguished because during this time the Government have refrained from deporting him in compliance with the request made by the Commission under Rule 36 of its Rules of Procedure (see paragraph 4 above). 115. The Court has had regard to the length of time taken for the various decisions in the domestic proceedings. As regards the decisions taken by the Secretary of State to refuse asylum, it does not consider that the periods (that is, 16 August 1990 - 27 March 1991 and 2 December 1991 - 1 June 1992) were excessive, bearing in mind the detailed and careful consideration required for the applicant's request for political asylum and the opportunities afforded to the latter to make representations and submit information (see paragraphs 25-27 and 34-35 above). 116. In connection with the judicial review proceedings before the national courts, it is noted that Mr Chahal's first application was made on 9 August 1991 and that a decision was reached on it by Mr Justice Popplewell on 2 December 1991. He made a second application on 16 July 1992, which was heard between 18 and 21 December 1992, judgment being given on 12 February 1993. The Court of Appeal dismissed the appeal against this decision on 22 October 1993 and refused him leave to appeal to the House of Lords. The House of Lords similarly refused leave to appeal on 3 March 1994 (see paragraphs 34, 38 and 40-42 above). 117. As the Court has observed in the context of Article 3 (art. 3), Mr Chahal's case involves considerations of an extremely serious and weighty nature. It is neither in the interests of the individual applicant nor in the general public interest in the administration of justice that such decisions be taken hastily, without due regard to all the relevant issues and evidence. Against this background, and bearing in mind what was at stake for the applicant and the interest that he had in his claims being thoroughly examined by the courts, none of the periods complained of can be regarded as excessive, taken either individually or in combination. Accordingly, there has been no violation of Article 5 para. 1 (f) of the Convention (art. 5-1-f) on account of the diligence, or lack of it, with which the domestic procedures were conducted. 118. It also falls to the Court to examine whether Mr Chahal's detention was "lawful" for the purposes of Article 5 para. 1 (f) (art. 5-1-f), with particular reference to the safeguards provided by the national system. Where the "lawfulness" of detention is in issue, including the question whether "a procedure prescribed by law" has been followed, the Convention refers essentially to the obligation to conform to the substantive and procedural rules of national law, but it requires in addition that any deprivation of liberty should be in keeping with the purpose of Article 5 (art. 5), namely to protect the individual from arbitrariness. 119. There is no doubt that Mr Chahal's detention was lawful under national law and was effected "in accordance with a procedure prescribed by law" (see paragraphs 43 and 64 above). However, in view of the extremely long period during which Mr Chahal has been detained, it is also necessary to consider whether there existed sufficient guarantees against arbitrariness. 120. In this context, the Court observes that the applicant has been detained since 16 August 1990 on the ground, essentially, that successive Secretaries of State have maintained that, in view of the threat to national security represented by him, he could not safely be released (see paragraph 43 above). The applicant has, however, consistently denied that he posed any threat whatsoever to national security, and has given reasons in support of this denial (see paragraphs 31 and 77 above). 121. The Court further notes that, since the Secretaries of State asserted that national security was involved, the domestic courts were not in a position effectively to control whether the decisions to keep Mr Chahal in detention were justified, because the full material on which these decisions were based was not made available to them (see paragraph 43 above). 122. However, in the context of Article 5 para. 1 of the Convention (art. 5-1), the advisory panel procedure (see paragraphs 29-32 and 60 above) provided an important safeguard against arbitrariness. This panel, which included experienced judicial figures (see paragraph 29 above) was able fully to review the evidence relating to the national security threat represented by the applicant. Although its report has never been disclosed, at the hearing before the Court the Government indicated that the panel had agreed with the Home Secretary that Mr Chahal ought to be deported on national security grounds. The Court considers that this procedure provided an adequate guarantee that there were at least prima facie grounds for believing that, if Mr Chahal were at liberty, national security would be put at risk and thus that the executive had not acted arbitrarily when it ordered him to be kept in detention. 123. In conclusion, the Court recalls that Mr Chahal has undoubtedly been detained for a length of time which is bound to give rise to serious concern. However, in view of the exceptional circumstances of the case and the facts that the national authorities have acted with due diligence throughout the deportation proceedings against him and that there were sufficient guarantees against the arbitrary deprivation of his liberty, this detention complied with the requirements of Article 5 para. 1 (f) (art. 5-1-f). It follows that there has been no violation of Article 5 para. 1 (art. 5-1). B. Article 5 para. 4 (art. 5-4) 124. The first applicant alleged that he was denied the opportunity to have the lawfulness of his detention decided by a national court, in breach of Article 5 para. 4 of the Convention (art. 5-4), which provides: "Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful." He submitted that the reliance placed on national security grounds as justification for his detention pending deportation prevented the domestic courts from considering whether it was lawful and appropriate. However, he developed this argument more thoroughly in connection with his complaint under Article 13 of the Convention (art. 13) (see paragraphs 140-41 below). 125. The Commission was of the opinion that it was more appropriate to consider this complaint under Article 13 (art. 13) and the Government also followed this approach (see paragraphs 142-43 below). 126. The Court recalls, in the first place, that Article 5 para. 4 (art. 5-4) provides a lex specialis in relation to the more general requirements of Article 13 (art. 13) (see the De Jong, Baljet and Van den Brink v. the Netherlands judgment of 22 May 1984, Series A no. 77, p. 27, para. 60). It follows that, irrespective of the method chosen by Mr Chahal to argue his complaint that he was denied the opportunity to have the lawfulness of his detention reviewed, the Court must first examine it in connection with Article 5 para. 4 (art. 5-4). 127. The Court further recalls that the notion of "lawfulness" under paragraph 4 of Article 5 (art. 5-4) has the same meaning as in paragraph 1 (art. 5-1), so that the detained person is entitled to a review of his detention in the light not only of the requirements of domestic law but also of the text of the Convention, the general principles embodied therein and the aim of the restrictions permitted by Article 5 para. 1 (art. 5-1) (see the E. v. Norway judgment of 29 August 1990, Series A no. 181-A, p. 21, para. 49). The scope of the obligations under Article 5 para. 4 (art. 5-4) is not identical for every kind of deprivation of liberty (see, inter alia, the Bouamar v. Belgium judgment of 29 February 1988, Series A no. 129, p. 24, para. 60); this applies notably to the extent of the judicial review afforded. Nonetheless, it is clear that Article 5 para. 4 (art. 5-4) does not guarantee a right to judicial review of such breadth as to empower the court, on all aspects of the case including questions of pure expediency, to substitute its own discretion for that of the decision-making authority. The review should, however, be wide enough to bear on those conditions which are essential for the "lawful" detention of a person according to Article 5 para. 1 (art. 5-1) (see the above-mentioned E. v. Norway judgment, p. 21, para. 50). 128. The Court refers again to the requirements of Article 5 para. 1 (art. 5-1) in cases of detention with a view to deportation (see paragraph 112 above). It follows from these requirements that Article 5 para. 4 (art. 5-4) does not demand that the domestic courts should have the power to review whether the underlying decision to expel could be justified under national or Convention law. 129. The notion of "lawfulness" in Article 5 para. 1 (f) (art. 5-1-f) does not refer solely to the obligation to conform to the substantive and procedural rules of national law; it requires in addition that any deprivation of liberty should be in keeping with the purpose of Article 5 (art. 5) (see paragraph 118 above). The question therefore arises whether the available proceedings to challenge the lawfulness of Mr Chahal's detention and to seek bail provided an adequate control by the domestic courts. 130. The Court recollects that, because national security was involved, the domestic courts were not in a position to review whether the decisions to detain Mr Chahal and to keep him in detention were justified on national security grounds (see paragraph 121 above). Furthermore, although the procedure before the advisory panel undoubtedly provided some degree of control, bearing in mind that Mr Chahal was not entitled to legal representation before the panel, that he was only given an outline of the grounds for the notice of intention to deport, that the panel had no power of decision and that its advice to the Home Secretary was not binding and was not disclosed (see paragraphs 30, 32 and 60 above), the panel could not be considered as a "court" within the meaning of Article 5 para. 4 (art. 5-4) (see, mutatis mutandis, the X v. the United Kingdom judgment of 5 November 1981, Series A no. 46, p. 26, para. 61). 131. The Court recognises that the use of confidential material may be unavoidable where national security is at stake. This does not mean, however, that the national authorities can be free from effective control by the domestic courts whenever they choose to assert that national security and terrorism are involved (see, mutatis mutandis, the Fox, Campbell and Hartley v. the United Kingdom judgment of 30 August 1990, Series A no. 182, p. 17, para. 34, and the Murray v. the United Kingdom judgment of 28 October 1994, Series A no. 300-A, p. 27, para. 58). The Court attaches significance to the fact that, as the intervenors pointed out in connection with Article 13 (art. 13) (see paragraph 144 below), in Canada a more effective form of judicial control has been developed in cases of this type. This example illustrates that there are techniques which can be employed which both accommodate legitimate security concerns about the nature and sources of intelligence information and yet accord the individual a substantial measure of procedural justice. 132. It follows that the Court considers that neither the proceedings for habeas corpus and for judicial review of the decision to detain Mr Chahal before the domestic courts, nor the advisory panel procedure, satisfied the requirements of Article 5 para. 4 (art. 5-4). This shortcoming is all the more significant given that Mr Chahal has undoubtedly been deprived of his liberty for a length of time which is bound to give rise to serious concern (see paragraph 123 above). 133. In conclusion, there has been a violation of Article 5 para. 4 of the Convention (art. 5-4). III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION (art. 8) 134. All four of the applicants complained that if Mr Chahal were deported to India this would amount to a violation of Article 8 of the Convention (art. 8), which states (so far as is relevant): "1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security ..." 135. It was not contested by the Government that the deportation would constitute an interference with the Article 8 para. 1 (art. 8-1) rights of the applicants to respect for their family life. The applicants, for their part, conceded that the interference would be "in accordance with the law" and would pursue a legitimate aim for the purposes of Article 8 para. 2 (art. 8-2). The only material question in this connection was, therefore, whether the interference (that is, the deportation) would be "necessary in a democratic society in the interests of national security", within the meaning of Article 8 para. 2 (art. 8-2). 136. The Government asserted that Mr Chahal's deportation would be necessary and proportionate in view of the threat he represented to the national security of the United Kingdom and the wide margin of appreciation afforded to States in this type of case. 137. The applicants denied that Mr Chahal's deportation could be justified on national security grounds and emphasised that, if there were cogent evidence that he had been involved in terrorist activity, a criminal prosecution could have been brought against him in the United Kingdom. 138. The Commission acknowledged that States enjoy a wide margin of appreciation under the Convention where matters of national security are in issue, but was not satisfied that the grave recourse of deportation was in all the circumstances necessary and proportionate. 139. The Court recalls its finding that the deportation of the first applicant to India would constitute a violation of Article 3 of the Convention (art. 3) (see paragraph 107 above). Having no reason to doubt that the respondent Government will comply with the present judgment, it considers that it is not necessary to decide the hypothetical question whether, in the event of expulsion to India, there would also be a violation of the applicants' rights under Article 8 of the Convention (art. 8). IV. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION (art. 13) 140. In addition, the applicants alleged that they were not provided with effective remedies before the national courts, in breach of Article 13 of the Convention (art. 13), which reads: "Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity." 141. The applicants maintained that the only remedy available to them in respect of their claims under Articles 3, 5 and 8 of the Convention (art. 3, art. 5, art. 8) was judicial review, the advisory panel procedure (see paragraphs 29 and 60 above) being neither a "remedy" nor "effective". They submitted, first, that the powers of the English courts to put aside an executive decision were inadequate in all Article 3 (art. 3) asylum cases, since the courts could not scrutinise the facts to determine whether substantial grounds had been shown for belief in the existence of a real risk of ill-treatment in the receiving State, but could only determine whether the Secretary of State's decision as to the existence of such a risk was reasonable according to the" Wednesbury" principles (see paragraph 66 above). This contention had particular weight in cases where the executive relied upon arguments of national security. In the instant case, the assertion that Mr Chahal's deportation was necessary in the interests of national security entailed that there could be no effective judicial evaluation of the risk to him of ill-treatment in India or of the issues under Article 8 (art. 8). That assertion likewise prevented any effective judicial control on the question whether the applicant's continued detention was justified. 142. The Government accepted that the scope of judicial review was more limited where deportation was ordered on national security grounds. However, the Court had held in the past that, where questions of national security were in issue, an "effective remedy" under Article 13 (art. 13) must mean "a remedy that is effective as can be", given the necessity of relying upon secret sources of information (see the Klass and Others v. Germany judgment of 6 September 1978, Series A no. 28, p. 31, para. 69, and the Leander v. Sweden judgment of 26 March 1987, Series A no. 116, p. 32, para. 84). Furthermore, it had to be borne in mind that all the relevant material, including the sensitive material, was examined by the advisory panel whose members included two senior judicial figures - a Court of Appeal judge and a former president of the Immigration Appeal Tribunal (see paragraph 29 above). The procedure before the panel was designed, on the one hand, to satisfy the need for an independent review of the totality of the material on which the perceived threat to national security was based and, on the other hand, to ensure that secret information would not be publicly disclosed. It thus provided a form of independent, quasi-judicial scrutiny. 143. For the Commission, the present case could be distinguished from that of Vilvarajah and Others (cited at paragraph 73 above, p. 39, paras. 122-26) where the Court held that judicial review in the English courts amounted to an effective remedy in respect of the applicants' Article 3 (art. 3) claims. Because the Secretary of State invoked national security considerations as grounds for his decisions to deport Mr Chahal and to detain him pending deportation, the English courts' powers of review were limited. They could not themselves consider the evidence on which the Secretary of State had based his decision that the applicant constituted a danger to national security or undertake any evaluation of the Article 3 (art. 3) risks. Instead, they had to confine themselves to examining whether the evidence showed that the Secretary of State had carried out the balancing exercise required by the domestic law (see paragraph 41 above). 144. The intervenors (see paragraph 6 above) were all of the view that judicial review did not constitute an effective remedy in cases involving national security. Article 13 (art. 13) required at least that some independent body should be appraised of all the facts and evidence and entitled to reach a decision which would be binding on the Secretary of State. In this connection, Amnesty International, Liberty, the AIRE Centre and JCWI (see paragraph 6 above) drew the Court's attention to the procedure applied in such cases in Canada. Under the Canadian Immigration Act 1976 (as amended by the Immigration Act 1988), a Federal Court judge holds an in camera hearing of all the evidence, at which the applicant is provided with a statement summarising, as far as possible, the case against him or her and has the right to be represented and to call evidence. The confidentiality of security material is maintained by requiring such evidence to be examined in the absence of both the applicant and his or her representative. However, in these circumstances, their place is taken by a security-cleared counsel instructed by the court, who cross-examines the witnesses and generally assists the court to test the strength of the State's case. A summary of the evidence obtained by this procedure, with necessary deletions, is given to the applicant. 145. The Court observes that Article 13 (art. 13) guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. The effect of this Article (art. 13) is thus to require the provision of a domestic remedy allowing the competent national authority both to deal with the substance of the relevant Convention complaint and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their obligations under this provision (art. 13) (see the Vilvarajah and Others judgment cited at paragraph 73 above, p. 39, para. 122). Moreover, it is recalled that in certain circumstances the aggregate of remedies provided by national law may satisfy the requirements of Article 13 (art. 13) (see, inter alia, the above-mentioned Leander judgment, p. 30, para. 77). 146. The Court does not have to examine the allegation of a breach of Article 13 taken in conjunction with Article 5 para. 1 (art. 13+5-1), in view of its finding of a violation of Article 5 para. 4 (art. 5-4) (see paragraph 133 above). Nor is it necessary for it to examine the complaint under Article 13 in conjunction with Article 8 (art. 13+8), in view of its finding concerning the hypothetical nature of the complaint under the latter provision (art. 8) (see paragraph 139 above). 147. This leaves only the first applicant's claim under Article 3 combined with Article 13 (art. 13+3). It was not disputed that the Article 3 (art. 3) complaint was arguable on the merits and the Court accordingly finds that Article 13 (art. 13) is applicable (see the above-mentioned Vilvarajah and Others judgment, p. 38, para. 121). 148. The Court recalls that in its Vilvarajah and Others judgment (ibid., p. 39, paras. 122-26), it found judicial review proceedings to be an effective remedy in relation to the applicants' complaints under Article 3 (art. 3). It was satisfied that the English courts could review a decision by the Secretary of State to refuse asylum and could rule it unlawful on the grounds that it was tainted with illegality, irrationality or procedural impropriety (see paragraph 66 above). In particular, it was accepted that a court would have jurisdiction to quash a challenged decision to send a fugitive to a country where it was established that there was a serious risk of inhuman or degrading treatment, on the ground that in all the circumstances of the case the decision was one that no reasonable Secretary of State could take (ibid., para. 123). 149. The Court further recalls that in assessing whether there exists a real risk of treatment in breach of Article 3 (art. 3) in expulsion cases such as the present, the fact that the person is perceived as a danger to the national security of the respondent State is not a material consideration (see paragraph 80 above). 150. It is true, as the Government have pointed out, that in the cases of Klass and Others and Leander (both cited at paragraph 142 above), the Court held that Article 13 (art. 13) only required a remedy that was "as effective as can be" in circumstances where national security considerations did not permit the divulging of certain sensitive information. However, it must be borne in mind that these cases concerned complaints under Articles 8 and 10 of the Convention (art. 8, art. 10) and that their examination required the Court to have regard to the national security claims which had been advanced by the Government. The requirement of a remedy which is "as effective as can be" is not appropriate in respect of a complaint that a person's deportation will expose him or her to a real risk of treatment in breach of Article 3 (art. 3), where the issues concerning national security are immaterial. 151. In such cases, given the irreversible nature of the harm that might occur if the risk of ill-treatment materialised and the importance the Court attaches to Article 3 (art. 3), the notion of an effective remedy under Article 13 (art. 13) requires independent scrutiny of the claim that there exist substantial grounds for fearing a real risk of treatment contrary to Article 3 (art. 3). This scrutiny must be carried out without regard to what the person may have done to warrant expulsion or to any perceived threat to the national security of the expelling State. 152. Such scrutiny need not be provided by a judicial authority but, if it is not, the powers and guarantees which it affords are relevant in determining whether the remedy before it is effective (see the above-mentioned Leander judgment, p. 29, para. 77). 153. In the present case, neither the advisory panel nor the courts could review the decision of the Home Secretary to deport Mr Chahal to India with reference solely to the question of risk, leaving aside national security considerations. On the contrary, the courts' approach was one of satisfying themselves that the Home Secretary had balanced the risk to Mr Chahal against the danger to national security (see paragraph 41 above). It follows from the above considerations that these cannot be considered effective remedies in respect of Mr Chahal's Article 3 (art. 3) complaint for the purposes of Article 13 of the Convention (art. 13). 154. Moreover, the Court notes that in the proceedings before the advisory panel the applicant was not entitled, inter alia, to legal representation, that he was only given an outline of the grounds for the notice of intention to deport, that the panel had no power of decision and that its advice to the Home Secretary was not binding and was not disclosed (see paragraphs 30, 32 and 60 above). In these circumstances, the advisory panel could not be considered to offer sufficient procedural safeguards for the purposes of Article 13 (art. 13). 155. Having regard to the extent of the deficiencies of both the judicial review proceedings and the advisory panel, the Court cannot consider that the remedies taken together satisfy the requirements of Article 13 in conjunction with Article 3 (art. 13+3). Accordingly, there has been a violation of Article 13 (art. 13). V. APPLICATION OF ARTICLE 50 OF THE CONVENTION (art. 50) 156. The applicants asked the Court to grant them just satisfaction under Article 50 of the Convention (art. 50), which provides as follows: "If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the present Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party." A. Non-pecuniary damage 157. The applicants claimed compensation for non-pecuniary damage for the period of detention suffered by Mr Chahal at a rate of £30,000-£50,000 per annum. The Government submitted that a finding of violation would be sufficient just satisfaction in respect of the claim for non-pecuniary damage. 158. In view of its decision that there has been no violation of Article 5 para. 1 (art. 5-1) (see paragraph 123 above), the Court makes no award for non-pecuniary damage in respect of the period of time Mr Chahal has spent in detention. As to the other complaints, the Court considers that the findings that his deportation, if carried out, would constitute a violation of Article 3 (art. 3) and that there have been breaches of Articles 5 para. 4 and 13 (art. 5-4, art. 13) constitute sufficient just satisfaction. B. Legal costs and expenses 159. In addition, the applicants claimed the reimbursement of the legal costs of the Strasbourg proceedings, totalling £77,755.97 (inclusive of value-added tax, "VAT"). With regard to the legal costs claimed, the Government observed that a substantial proportion of these were not necessarily incurred because the applicants had produced a large amount of peripheral material before the Court. They proposed instead a sum of £20,000, less legal aid. 160. The Court considers the legal costs claimed by the applicants to be excessive and decides to award £45,000 (inclusive of VAT), less the 21,141 French francs already paid in legal aid by the Council of Europe. C. Default interest 161. According to the information available to the Court, the statutory rate of interest applicable in the United Kingdom at the date of adoption of the present judgment is 8% per annum. | The Court held that there would be a violation of Article 3 (prohibition of inhuman and degrading treatment) if the deportation order to India were to be enforced. The Court was not satisfied by the assurances given by the Indian Government. |
26 | Affiliation- and inheritance-related rights | II. RELEVANT DOMESTIC LAW 16. Legally recognised family ties ( familierechtelijke betrekkingen ) between a father, his relatives and a child exist where a child is born to married parents or if it is born within 307 days following the dissolution of the marriage (Article 1:197 of the Civil Code ( Burgerlijk Wetboek – “CC”)). An illegitimate child will have a legally recognised family relationship with its father (who does not have to be the biological father) and the latter's relatives if it has been recognised ( erkenning ) by the father, either before or after its birth (Article 1:222 CC). At the relevant time, moreover, a legally recognised family relationship would also be created by the granting of letters of legitimation (Article 1:215 CC). 17. Paragraph 2 of Article 1:215 provided as follows: “The request for letters of legitimation may also be made if the man, who, aware of her pregnancy, and intending to marry the mother, died before the birth of the child without having recognised it.” 18. It appears from the explanatory memorandum ( Memorie van Toelichting ) to this provision that the intention to marry the mother, which, if carried out, would have resulted in the birth of a legitimate child, replaced the recognition required by Article 1:222 CC for the establishment of a legally recognised family relationship. A request for letters of legitimation could be made by the child's mother or, after her death, by the child itself. No time-limit was attached to a request for such letters. According to Article 1:219 § 1 CC, legitimation pursuant to Article 1:215 took effect from the day on which letters of legitimation were granted. 19. On 1 April 1998 the Civil Code was amended. The option of letters of legitimation was replaced by a judicial declaration of paternity ( gerechtelijke vaststelling van vaderschap, Article 1:207 CC). A declaration of paternity has retroactive force from the time of the child's birth but it does not affect adversely any rights acquired in good faith by third parties. 20. According to Article 4:879 § 1 CC only those persons who have a legally recognised family relationship with a person who has died intestate may inherit from this person. Furthermore, the heir must have existed at the time of death. (Article 4:883 CC). However, according to Article 1:2 CC, a child who has been conceived but has not yet been born is considered as having already been born when his or her interests so require. 21. According to the rules of intestacy, if a deceased does not leave any children with whom he has a legally recognised family relationship or a spouse, his parents and siblings will inherit from him (Article 4:901 CC). If there are such children or a spouse, the parents and siblings are excluded from the inheritance (Articles 4:899 and 4:899a CC). proceedings before the commission 22. The applicants applied to the Commission on 18 August 1995. They complained that, contrary to Article 8 of the Convention and Article 14 taken in conjunction with Article 8, the letters of legitimation did not have retroactive force from the time of Mr A. Bourimi's death. 23. On 8 September 1997 the Commission declared the application admissible. 24. In its report of 23 April 1999 (former Article 31 of the Convention) [ Note by the Registry. The report is obtainable from the Registry.], the Commission expressed the unanimous opinion that there had been no violation of Article 8 either in respect of the family life between the two applicants or in respect of Ms Camp's family life with the relatives of Mr A. Bourimi, that it was not necessary to examine under Article 8 of the Convention the complaint relating to Sofian's family life with the relatives of his father, and that there had been a violation of Article 14 of the Convention taken in conjunction with Article 8 in respect of Sofian. THE LAW I. alleged violation of article 8 of the Convention 25. The applicants complained that they were hindered in the development of a family life with each other and with the relatives of Mr A. Bourimi. They relied on Article 8 of the Convention, which provides: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 26. The applicants maintained that the legal framework in place meant that no legally recognised family ties existed between Sofian and his father and the latter's relatives until the granting of letters of legitimation. As a result, Sofian's integration into his family – including that of his father – from birth was not rendered possible. This affected the development of normal family ties between Ms Camp and Sofian but also between each of the applicants and the relatives of Mr A. Bourimi. The impossibility for Sofian to take on his father's family name until the granting of letters of legitimation and the impossibility of inheriting from his father created a situation where Sofian was treated less favourably than a legitimate child. 27. The Government agreed with the Commission in that they failed to see how the relationship between Ms Camp and Sofian could have been affected to an appreciable extent, either prior to or after the granting of letters of legitimation, by the fact that the family ties between Sofian and his deceased father were not legally recognised when Sofian was born. Similarly, the Government were of the opinion that it had not been substantiated in what way the relationship between Ms Camp and the relatives of Mr A. Bourimi – even assuming this could be characterised as constituting “family life” within the meaning of Article 8 – had been adversely affected. 28. The Court reiterates that the essential object of Article 8 is to protect the individual against arbitrary action by the public authorities (see, for example, the Johnston and Others v. Ireland judgment of 18 December 1986, Series A no. 112, p. 25, § 55). It considers that the absence of legally recognised family ties between Sofian and his father did not constitute an interference by the public authorities with the family life of Sofian and his mother who, as far as the Court is aware, have always lived together. Furthermore, and without embarking on an examination of the question whether the ties between Ms Camp and the relatives of Mr A. Bourimi are to be equated with “family life”, the Court does not find that obstacles to the development of those ties were imputable to an action or lack of action on the part of the authorities. Accordingly, the Court finds that there has been no violation of Article 8 of the Convention in respect of family life either between Ms Camp and Sofian or between Ms Camp and the relatives of Mr A. Bourimi. 29. The Court further observes that the complaint in respect of the family life between Sofian and his father's relatives is closely related to the applicants' contention that the law in force allowed these relatives to treat Sofian differently from a child who, unlike Sofian, had a legally recognised family relationship with its father from birth. The Court considers that this issue falls more appropriately to be examined under Article 14 of the Convention taken in conjunction with Article 8. ii. alleged violation of article 14 of the Convention taken in conjunction with article 8 30. The applicants complained that Sofian was treated differently from children who had the status of legitimate children from birth, in breach of Article 14 of the Convention taken in conjunction with Article 8. Article 14 provides: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” 31. In the opinion of the applicants, no weighty reasons existed which could justify the situation whereby only children who had a legally recognised family relationship with their father at the time of the latter's death could inherit from that father. They agreed with the Commission that in the instant case such justification could not be found in the need to protect other heirs from having to give up a lawfully obtained inheritance. 32. The Government argued that the reason for the difference in treatment lay in the provision of a general protection of the legitimate interests of third parties, in particular other heirs, in cases where family ties were established through letters of legitimation. They argued in this respect that heirs should enjoy the certainty that they would not have to give up a lawful inheritance to a descendant of the deceased who might turn up unexpectedly years later. The protection of their interests was achieved by denying retroactive force to letters of legitimation. Although the Government recognised that in certain circumstances the result of this system could be less than ideal – for which reason the relevant legislation had now been changed – this was not necessarily tantamount to a violation of the Convention. Moreover, Netherlands law offered several possibilities, such as the recognition by Sofian's father of the unborn child or his making of a will, which would have prevented the situation with which the applicants were confronted. 33. The Court has previously examined alleged differences in treatment in matters of succession both under Article 14 taken in conjunction with Article 8 (see the Marckx v. Belgium judgment of 13 June 1979, Series A no. 31, p. 24, § 54, and the Vermeire v. Belgium judgment of 29 November 1991, Series A no. 214-C, p. 83, § 28) and under Article 14 taken in conjunction with Article 1 of Protocol No. 1 (see the Inze v. Austria judgment of 28 October 1987, Series A no. 126, p. 18, § 40, and Mazurek v. France, no. 34406/97, § 43, ECHR 2000-II). In the present case, Article 14 has been relied on in conjunction with Article 8, and the Court will therefore examine this issue in the light of these two provisions. 34. As the Court has consistently held, Article 14 of the Convention complements the other substantive provisions of the Convention and the Protocols. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions. Although the application of Article 14 does not presuppose a breach of those provisions – and to this extent it is autonomous – there can be no room for its application unless the facts at issue fall within the ambit of one or more of the latter (see, among many other authorities, the Van Raalte v. the Netherlands judgment of 21 February 1997, Reports of Judgments and Decisions 1997-I, p. 184, § 33). 35. Despite the fact that Article 8 does not as such guarantee a right to inherit, the Court has previously accepted that matters of intestate succession between near relatives nevertheless fall within the scope of that provision as they represent a feature of family life (see the Marckx judgment cited above, pp. 23-24, §§ 52-53). The fact that Mr A. Bourimi's death occurred before Sofian was born is no reason for the Court to adopt a different approach in the present case. It follows that Article 14 taken in conjunction with Article 8 applies. 36. The Court observes that Sofian, whose family ties with his father were not legally recognised until letters of legitimation had been granted, was unable to inherit from his father, unlike children who did have such ties either because they were born in wedlock or had been recognised by their father. This undoubtedly constitutes a difference in treatment between persons in similar situations, based on birth. 37. For the purposes of Article 14 a difference in treatment is discriminatory if it “has no objective and reasonable justification”, that is if it does not pursue a “legitimate aim” or if there is not a “reasonable relationship of proportionality between the means employed and the aim sought to be realised”. Moreover, the Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment (see the Karlheinz Schmidt v. Germany judgment of 18 July 1994, Series A no. 291-B, pp. 32-33, § 24). 38. According to the Court's case-law, very weighty reasons need to be put forward before a difference in treatment on the ground of birth out of wedlock can be regarded as compatible with the Convention (see the Inze v. Austria judgment cited above, p. 18, § 41, and Mazurek, cited above, § 49). As noted above (paragraph 36), in the instant case Sofian was treated differently not only from children born in wedlock but also from children who, although born out of wedlock, had been recognised by their father. Although the letters of legitimation took the place of such recognition (see paragraph 18 above), Sofian was nevertheless still unable to inherit from his father. In the Court's view, similarly weighty reasons are required for this latter difference to be compatible with the Convention in the circumstances of the present case. The Court observes in this respect that there was no conscious decision on the part of Mr A. Bourimi not to recognise the child Ms Camp was carrying. On the contrary, he had intended to marry Ms Camp and letters of legitimation had been granted precisely because his untimely death had precluded that marriage (see paragraphs 8, 12 and 17-18 above). In these circumstances, the Court cannot accept the Government's arguments as to how Mr A. Bourimi might have prevented his son's present predicament (see paragraph 32 above). 39. Although the protection of the rights of other heirs may constitute a legitimate aim, when it comes to the question of the proportionality of the means chosen to achieve this aim the Court observes that Sofian was not a descendant of whose existence the other heirs were unaware. Here, there is no indication that the exigencies of the situation required the level of protection that was afforded to Mr A. Bourimi's parents and siblings to the detriment of his son. The Court considers that in these circumstances Sofian's exclusion from his father's inheritance was disproportionate. Accordingly, there has been a breach of Article 14 of the Convention taken in conjunction with Article 8 in respect of Sofian. iii. APPLICATION OF ARTICLE 41 OF THE CONVENTION 40. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 41. The applicants submitted that their claims for just satisfaction related solely to the breach of Article 14 of the Convention taken in conjunction with Article 8. 42. The Government argued that, given the subsidiary nature of the provision, there was no room for application of Article 41 since it could not be excluded that the applicants would be successful if they lodged judicial proceedings for tort against the State. Alternatively, the Government were of the opinion that the reasons why Ms Camp and Mr A. Bourimi had not availed themselves of other legal possibilities to establish a legally recognised family relationship between father and child, such as recognition or the making of a will, fell within the private sphere. Therefore, any financial or emotional prejudice suffered as a result should not be fully attributed to the Government. 43. The Court considers relevant, in the first place, that to oblige the applicants to commence an action for tort in the Netherlands would prolong the total length of the proceedings relating to the applicants' rights under the Convention even more (see the De Wilde, Ooms and Versyp v. Belgium judgment of 10 March 1972 ( Article 50 ), Series A no. 14, pp. 8-9, § 16, and the Barberà, Messegué and Jabardo v. Spain judgment of 13 June 1994 ( Article 50 ), Series A no. 285 ‑ C, p. 57, § 17). In this context it is further observed that it has not been established by the Government that proceedings for tort would be successful. 44. Moreover, the Court recalls its case-law under former Article 50 of the Convention to the effect that just satisfaction may be granted by the Court unless a national law remedy is able to bring about a result as close to restitutio in integrum as possible in the nature of things (see, for example, the De Wilde, Ooms and Versyp judgment cited above, pp. 9-10, § 20; the Ringeisen v. Austria judgment of 22 June 1972 ( Article 50 ), Series A no. 15, p. 8, § 21; and the Sunday Times v. the United Kingdom judgment of 6 November 1980 ( Article 50 ), Series A no. 38, pp. 8-9, § 13). The question arises whether proceedings for tort, or any other kind of proceedings for that matter, would indeed be capable of bringing about such a result in the present case given that the impossibility for Sofian to obtain the status of heir of his father would not be remedied. Finally, the Court observes that the Government have declined to give the applicants the compensation which they claimed (see paragraph 4 above; see also the De Wilde, Ooms and Versyp judgment cited above, pp. 9-10, § 20, and the Ringeisen judgment cited above, p. 9, § 22). 45. Consequently, the Court considers that it should examine the merits of the applicants' claims for just satisfaction. 46. In addition, the Court cannot accept the Government's argument to the effect that they should not be held fully responsible for the entire financial consequences of private choices made by Ms Camp and Mr A. Bourimi. The Court has already rejected this argument when considering the merits and reiterates, under this head, its reasons for doing so (see paragraph 38 above). It would add that Sofian's parents, who had intended to get married, could hardly have been expected to anticipate that he would become the victim of discriminatory legislation. A. Damage 1. Pecuniary damage 47. The applicants claimed a total of 560,844.75 Netherlands guilders (NLG), this amount comprising the current value of the estate of Mr A. Bourimi, a sum of money which he had in his possession on the day he died and which had been handed over to his parents, as well as an amount of overpaid income tax which had been given to the deceased's parents by the tax authorities. In respect of the current value of the estate, the applicants based themselves on a letter dated 14 March 2000 from the notary in charge of the winding up of the estate. The applicants also sought compensation for removal expenses incurred by Ms Camp on two occasions. They estimated these costs at NLG 30,000. Finally, the applicants submitted that pecuniary damage had been caused by the necessity to pay rent whereas they could have lived virtually for free in Mr A. Bourimi's house had this been inherited by Sofian. 48. The Government argued that the value of the estate should be determined at the time of death of Mr A. Bourimi, and that developments which occurred or assets which were acquired after his death should have no bearing on this determination. They further refuted that there was any connection between a violation of the Convention and the applicants' moving out of the house. 49. The Court accepts that Sofian suffered pecuniary damage the amount of which is equivalent to the value of his father's estate, which he would have obtained had he had a legally recognised family relationship with his father at the time of the latter's death (see the Vermeire judgment cited above, p. 84, § 31). As to the time at which the value of the estate falls to be determined, the Court observes that the estate was distributed amongst the heirs on 9 February 2000 (see paragraph 15 above). Consequently, it was the value which the estate had at that time which Sofian would have obtained. The Court further considers that the sums of money transmitted to the parents of Mr A. Bourimi prior to the distribution of the estate also qualify for compensation under this head. As to removal expenses and rent, the Court notes that these items have not been sufficiently quantified. Moreover, Ms Camp left the house after reaching a settlement to that effect with the heirs of Mr A. Bourimi and at a time when the legal proceedings concerning her claim to remain in the house had not yet been concluded (see paragraph 14 above). Noting that the bulk of the estate was only distributed very recently rather than shortly after Mr A. Bourimi's death in 1992, the Court does not deem it appropriate to make an award for statutory interest. 50. The Court consequently awards Sofian NLG 560,844.75 in respect of pecuniary damage, which amount is to be paid to, and held by, Ms Camp for Sofian. 2. Non-pecuniary damage 51. The applicants submitted that they had suffered frustration, distress and anxiety in which respect they deemed compensation in the amount of NLG 50,000 reasonable. The Government were of the view that any finding of a violation would constitute sufficient just satisfaction under this head. 52. Even though the finding of a violation of the Convention concerned Sofian only, the Court accepts that Ms Camp also suffered distress. Taking its decision on an equitable basis, the Court awards the applicants compensation in the amount of NLG 6,750. B. Costs and expenses 53. The applicants claimed an amount of NLG 71,670 for lawyers' fees and costs incurred in bringing the application. They added that the complaint concerning the difference in treatment had occupied most of the time which their legal representatives had spent on the case. They also sought reimbursement in the amount of NLG 904.75 for the fees of the notary who had provided the applicants with written statements of the contents and value of the estate. 54. The Government regarded the lawyers' fees as exaggerated. Moreover, they submitted that the question whether both or only one of the applicants are or is a victim of a violation of the Convention should also be taken into account. 55. In relation to the claim for costs of legal representation the Court, deciding on an equitable basis, awards the applicants the sum of NLG 30,000, together with any value-added tax that may be chargeable, less the amounts received by way of legal aid from the Council of Europe. It further considers that the notary's fees also qualify for compensation in the present context. In respect of this claim, therefore, the Court awards the applicants the sum of NLG 904.75. C. Default interest 56. According to the information available to the Court, the statutory rate of interest applicable in the Netherlands at the date of adoption of the present judgment is 6% per annum. | The Court held that there had been a violation of Article 14 (prohibition of discrimination) in conjunction with Article 8 (right to respect for family life) of the Convention with respect to the second applicant. It observed that the child, who had not obtained legally-recognised family ties with his father until he had been declared legitimate two years after his birth, had been unable to inherit from his father unlike children who did have such ties either because they were born in wedlock or had been recognised by their father. This had undoubtedly constituted a difference in treatment between persons in similar situations, based on birth. According to the Court’s case-law, very weighty reasons need to be put forward before a difference in treatment on the ground of birth out of wedlock can be regarded as compatible with the Convention. The Court observed in this respect that there had been no conscious decision on the part of the deceased not to recognise the child the first applicant was carrying. On the contrary, he had intended to marry her and the child had been declared legitimate precisely because his untimely death had precluded that marriage. The Court could therefore not accept the Dutch Government’s arguments as to how the deceased might have prevented his son’s present predicament and considered the child’s exclusion from his father’s inheritance disproportionate. |
409 | Cases in which the Court found no violation of Article 4 of Protocol No. 4 | II. RELEVANT DOMESTIC LAW AND MATERIAL A. The Constitution 32. Article 13 of the Italian Constitution reads as follows: “Personal liberty is inviolable. No one may be detained, inspected, or searched, or otherwise subjected to any restriction of personal liberty, except by a reasoned order of a judicial authority and only in such cases and in such manner as provided by law. In exceptional circumstances and under such conditions of necessity and urgency as shall be precisely defined by law, the police may take provisional measures that shall be referred within 48 hours to a judicial authority and which, if not validated by the latter in the following 48 hours, shall be deemed withdrawn and ineffective. Any act of physical or mental violence against persons subjected to a restriction of personal liberty shall be punished. The law shall establish the maximum duration of any preventive measure of detention ( carcerazione preventiva ).” B. Legislation on the removal of irregular migrants 33. Legislative Decree ( decreto legislativo ) no. 286 of 1998 (“Consolidated text of provisions concerning immigration regulations and rules on the status of aliens”), as amended by Laws no. 271 of 2004 and no. 155 of 2005, and by Legislative Decree no. 150 of 2011, provides inter alia as follows: Article 10 (refusal of entry) “1. The border police shall refuse entry ( respinge ) to aliens who seek to cross the border without meeting the conditions laid down in the present consolidated text governing entry into the territory of the State. 2. Refusal of entry combined with removal shall, moreover, be ordered by the Chief of Police ( questore ) in respect of aliens: (a) who have entered the territory of the State by evading border controls, when they are arrested on entry or immediately afterwards; (b) or who ... have been temporarily allowed to remain for purposes of public assistance. ... 4. The provisions of paragraphs 1 [and] 2 ... do not apply to the situations provided for in the applicable provisions governing political asylum, the grant of refugee status or the adoption of temporary protection measures on humanitarian grounds. ...” Article 13 (administrative deportation) “1. For reasons of public order or national security the Minister of the Interior may order the deportation of an alien, even if he or she [does not reside] in the territory of the State, giving prior notice thereof to the Prime Minister and the Minister for Foreign Affairs. 2. The prefect shall give directions for removal where the alien: (a) has entered the territory of the State by evading border controls and has not already been refused entry under Article 10 hereof; ... 8. An appeal may be lodged against a deportation order with the judicial authority ...” Article 14 (execution of removal measures) “1. Where, in view of the need to provide assistance to an alien, to conduct additional checks of his or her identity or nationality, or to obtain travel documents, or on account of the lack of availability of a carrier, it is not possible to ensure the prompt execution of the deportation measure by escorting the person to the border or of the refusal-of-entry measure, the Chief of Police ( questore ) shall order that the alien be held for as long as is strictly necessary at the nearest Identification and Removal Centre, among those designated or created by order of the Minister of the Interior in collaboration ( di concerto ) with the Minister for Social Solidarity and the Treasury, the Minister for the Budget, and the Minister for Economic Planning. ...” C. Criminal Code 34. Article 54 § 1 of the Criminal Code reads, in its relevant part, as follows: “Acts committed under the constraint of having to save [the perpetrator or a third party] from an instant danger of serious bodily harm shall not be liable to punishment, provided that such danger has not been voluntarily caused [by the perpetrator] and cannot otherwise be avoided, and provided that the said act is proportionate to the danger. ...” D. Italian Senate 35. On 6 March 2012 the Italian Senate’s Special Commission for Human Rights (the “Senate’s Special Commission”) approved a report “on the state of [respect for] human rights in prisons and reception and detention centres in Italy”. Visited by the Commission on 11 February 2009, the Lampedusa CSPA is described particularly in the following passages: “Stays at the Lampedusa centre were supposed to be limited to the time strictly necessary to establish the migrant’s identity and the lawfulness of his presence in Italy or to decide on his removal. In reality, as has already been criticised by the UNHCR and a number of organisations operating on the spot, the duration of such stays has sometimes extended to over twenty days without there being any formal decision as to the legal status of the person being held. Such prolonged confinement, combined with an inability to communicate with the outside world, and the lack of freedom of movement, without any legal or administrative measure providing for such restrictions, has led to heightened tension, often manifested in acts of self-harm. Numerous appeals by organisations working on the island have been made concerning the lawfulness of the situation there. ... The rooms measure about 5 x 6 metres: they are supposed to accommodate twelve persons. They contain four-tier bunk beds, placed side by side, occupied by up to twenty-five men per room ... In many of the blocks, foam-rubber mattresses are placed along the corridor. In many cases the foam-rubber from the mattresses has been torn away to be used as a cushion. In some cases, double mattresses, protected by improvised covers, have been placed on the landings, outside ... On the ceiling, in many rooms, the plastic shade around the light has been removed and the bulb has disappeared. At the end of the corridor, on one side, there are toilets and showers. There is no door and privacy is ensured by cloth or plastic curtains placed in an improvised and haphazard manner. There are no taps and water flows from the pipes only when centrally activated. The pipes sometimes get blocked; on the floor, water or other liquids run as far as the corridor and into the rooms where the foam-rubber mattresses have been placed. The smell from the toilets pervades the whole area. When it starts to rain, those on the metal staircases, who have to go up to the floor above, get wet and carry dampness and dirt into the living quarters.” V. OTHER RELEVANT INTERNATIONAL LAW MATERIAL A. International Law Commission 46. The International Law Commission (ILC), at its sixty-sixth session, in 2014, adopted a set of “Draft articles on the expulsion of aliens”. This text was submitted to the United Nations General Assembly, which took note of it (Resolution A/RES/69/119 10 December 2014). The following Articles are of particular interest: Article 2 Use of terms “For the purposes of the present draft articles: (a) ’expulsion’ means a formal act or conduct attributable to a State, by which an alien is compelled to leave the territory of that State; it does not include extradition to another State, surrender to an international criminal court or tribunal, or the non-admission of an alien to a State; (b) ’alien’ means an individual who does not have the nationality of the State in whose territory that individual is present.” Article 3 Right of expulsion “A State has the right to expel an alien from its territory. Expulsion shall be in accordance with the present draft articles, without prejudice to other applicable rules of international law, in particular those relating to human rights.” Article 4 Requirement for conformity with law “An alien may be expelled only in pursuance of a decision reached in accordance with law.” Article 5 Grounds for expulsion “1. Any expulsion decision shall state the ground on which it is based. 2. A State may only expel an alien on a ground that is provided for by law. 3. The ground for expulsion shall be assessed in good faith and reasonably, in the light of all the circumstances, taking into account in particular, where relevant, the gravity of the facts, the conduct of the alien in question or the current nature of the threat to which the facts give rise. 4. A State shall not expel an alien on a ground that is contrary to its obligations under international law.” Article 9 Prohibition of collective expulsion “1. For the purposes of the present draft article, collective expulsion means expulsion of aliens, as a group. 2. The collective expulsion of aliens is prohibited. 3. A State may expel concomitantly the members of a group of aliens, provided that the expulsion takes place after and on the basis of an assessment of the particular case of each individual member of the group in accordance with the present draft articles. 4. The present draft article is without prejudice to the rules of international law applicable to the expulsion of aliens in the event of an armed conflict involving the expelling State.” Article 13 Obligation to respect the human dignity and human rights of alienssubject to expulsion “1. All aliens subject to expulsion shall be treated with humanity and with respect for the inherent dignity of the human person at all stages of the expulsion process. 2. They are entitled to respect for their human rights, including those set out in the present draft articles.” Article 15 Vulnerable persons “1. Children, older persons, persons with disabilities, pregnant women and other vulnerable persons who are subject to expulsion shall be considered as such and treated and protected with due regard for their vulnerabilities. 2. In particular, in all actions concerning children who are subject to expulsion, the best interests of the child shall be a primary consideration.” Article 17 Prohibition of torture or cruel, inhuman or degrading treatmentor punishment “The expelling State shall not subject an alien subject to expulsion to torture or to cruel, inhuman or degrading treatment or punishment.” Article 19 Detention of an alien for the purpose of expulsion “1. (a) The detention of an alien for the purpose of expulsion shall not be arbitrary nor punitive in nature. (b) An alien detained for the purpose of expulsion shall, save in exceptional circumstances, be separated from persons sentenced to penalties involving deprivation of liberty. 2. (a) The duration of the detention shall be limited to such period of time as is reasonably necessary for the expulsion to be carried out. All detention of excessive duration is prohibited. (b) The extension of the duration of the detention may be decided upon only by a court or, subject to judicial review, by another competent authority. 3. (a) The detention of an alien subject to expulsion shall be reviewed at regular intervals on the basis of specific criteria established by law. (b) Subject to paragraph 2, detention for the purpose of expulsion shall end when the expulsion cannot be carried out, except where the reasons are attributable to the alien concerned.” 47. In its Commentary to Draft Article 9 the ILC observed in particular as follows: “(1) Paragraph 1 of draft article 9 contains a definition of collective expulsion for the purposes of the present draft articles. According to this definition, collective expulsion is understood to mean the expulsion of aliens ‘as a group’. This criterion is informed by the case-law of the European Court of Human Rights. It is a criterion that the Special Rapporteur on the rights of non-citizens of the Commission on Human Rights, Mr. David Weissbrodt, had also endorsed in his final report of 2003. Only the ‘collective’ aspect is addressed in this definition, which must be understood in the light of the general definition of expulsion contained in draft article 2, subparagraph (a). ... (4) The prohibition of the collective expulsion of aliens set out in paragraph 2 of the present draft article should be read in the light of paragraph 3, which elucidates it by specifying the conditions under which the members of a group of aliens may be expelled concomitantly without such a measure being regarded as a collective expulsion within the meaning of the draft articles. Paragraph 3 states that such an expulsion is permissible provided that it takes place after and on the basis of an assessment of the particular case of each individual member of the group in accordance with the present draft articles. The latter phrase refers in particular to draft article 5, paragraph 3, which states that the ground for expulsion must be assessed in good faith and reasonably, in the light of all the circumstances, taking into account in particular, where relevant, the gravity of the facts, the conduct of the alien in question or the current nature of the threat to which the facts give rise. ...” B. Council of Europe’s Parliamentary Assembly 48. The facts of the case are connected with the large-scale arrival of unlawful migrants on the Italian coast in 2011 following, in particular, the uprisings in Tunisia and the conflict in Libya. 49. In that context the Council of Europe’s Parliamentary Assembly (PACE) set up an “Ad Hoc Sub-Committee on the large-scale arrival of irregular migrants, asylum-seekers and refugees on Europe’s southern shores” (the “PACE Ad Hoc Sub-Committee”), which carried out a fact ‑ finding visit to Lampedusa on 23 and 24 May 2011. A report on the visit was published on 30 September 2011. Its relevant passages read as follows: “II. History of Lampedusa as a destination for mixed migration flows ... 9. Because of its geographical location close to the African coast, Lampedusa has experienced several episodes in which it has had to cope with a large influx by sea of people wanting to go to Europe (31 252 in 2008; 11 749 in 2007; 18 047 in 2006; 15 527 in 2005). 10. The numbers arriving fell sharply in 2009 and 2010 (2 947 and 459, respectively) following an agreement between Italy and Muammar Gaddafi’s Libya. This agreement drew strong criticism because of the human rights violations in Libya and the appalling living conditions of migrants, refugees and asylum-seekers in the country. It also drew criticism, subsequently validated by UNHCR, that it risked denying asylum seekers and refugees access to international protection. It did however prove extremely effective in halting the influx and as a result, the island’s reception centres were then closed and the international organisations active in Lampedusa withdrew their field presence. 11. In 2011, following the uprisings in Tunisia and then in Libya, the island was confronted with a fresh wave of arrivals by boat. Arrivals resumed in two stages. The first to arrive on the island were Tunisians, followed by boats from Libya, among which many women and young children. The influx began on 29 January 2011 and the population of the island was quickly multiplied by two. 12. Following these arrivals, Italy declared a humanitarian emergency in Lampedusa and called for solidarity from the European Union member states. The Prefect of Palermo was given emergency powers to manage the situation. 13. As of 21 September 2011, 55 298 people had arrived by sea in Lampedusa (27 315 from Tunisia and 27 983 from Libya, mainly nationals of Niger, Ghana, Mali and the Côte d’Ivoire). ... THE LAW I. PRELIMINARY OBJECTION 51. In a document of 9 July 2013 containing their additional observations and submissions on just satisfaction before the Chamber, the Government for the first time raised an objection that domestic remedies had not been exhausted, on the ground that the applicants had not appealed to the Italian judicial authorities against the refusal-of-entry orders. 52. The Chamber took the view that the Government were estopped from raising the objection that domestic remedies had not been exhausted. It pointed out that under Rule 55 of the Rules of Court, any plea of inadmissibility must be raised by the respondent Contracting Party, in so far as the nature of the objection and the circumstances so allowed, in its written or oral observations on the admissibility of the application (see N.C. v. Italy [GC], no. 24952/94, § 44, ECHR 2002-X). In the present case, the Government had not clearly raised an objection as to the non-exhaustion of domestic remedies in their observations of 25 September 2013 on the admissibility and merits, and the question of a failure by the applicants to lodge an appeal against the refusal-of-entry orders was raised only in their additional observations and submissions on just satisfaction. The Chamber further noted that the Government had not provided any explanation for that delay and that there was no exceptional circumstance capable of exempting them from their obligation to raise an objection to admissibility in a timely manner (see paragraphs 38 and 39 of the Chamber judgment). 53. The Grand Chamber does not see any reason to depart from the Chamber’s findings on that point. It further notes that during the proceedings before it the Government did not indicate any impediment by which they had been prevented from referring, in their initial observations of 25 September 2013 on the admissibility and merits of the case, to a failure by the applicants to challenge the refusal-of-entry orders. 54. It is therefore appropriate to confirm that the Government are estopped from relying on a failure to exhaust domestic remedies. II. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION 55. The applicants complained that they had been deprived of their liberty in a manner that was incompatible with Article 5 § 1 of the Convention, which reads as follows: “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a) the lawful detention of a person after conviction by a competent court; (b) the lawful arrest or detention of a person for non- compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law; (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; (d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority; (e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants; (f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.” A. Chamber judgment 56. The Chamber began by finding that the applicants had been deprived of their liberty within the meaning of Article 5 § 1 of the Convention. The applicants’ allegation that they had been prohibited from leaving the CSPA and the ships Vincent and Audace was not in dispute (see paragraphs 46-51 of the Chamber judgment). 57. The Chamber then took the view that the deprivation of liberty imposed on the applicants fell under sub-paragraph (f) of the first paragraph of Article 5. However, it had no legal basis in Italian law. In that connection, the Chamber observed that Italian law did not provide for the detention of migrants placed in a CSPA. In addition, in his decision of 1 June 2012, the Palermo preliminary investigations judge had stated that the Agrigento police authority had merely registered the presence of the migrants in the CSPA without taking decisions ordering their detention. The Chamber explained that the existence of a practice of de facto detention of migrants in Italy had been confirmed by the reports of the Senate’s Special Commission and the PACE Ad Hoc Sub-Committee. The April 2011 agreement between Italy and Tunisia had not been accessible to those concerned and its consequences had therefore been unforeseeable. In the Chamber’s view, it could not be established that the agreement provided for satisfactory safeguards against arbitrariness. The Chamber concluded in the light of the foregoing that the applicants’ deprivation of liberty had not been “lawful” within the meaning of Article 5 § 1 of the Convention and that there had been a violation of that provision in the present case (paragraphs 66-73 of the Chamber judgment). B. The Government’s objection to the applicability of Article 5 § 1 of the Convention 1. The parties’ submissions (a) The Government 58. The Government argued in the first place that Article 5 was inapplicable in the present case as the applicants had not been deprived of their liberty. They had been received in a CSPA, a centre not designed for detention but to provide first aid and assistance (in terms of health and hygiene in particular) to all the migrants who arrived in Italy in 2011 for the time necessary to identify them, in accordance with the relevant Italian and European rules, and to proceed with their return. The applicants had then been transferred, for their own safety, to the ships Vincent and Audace – which, in the Government’s submission, had to be regarded as the “natural extension of the CSPA” of Lampedusa – on account of the arson attack which had destroyed the centre (see paragraph 14 above). 59. Faced with a humanitarian and logistical emergency, the Italian authorities had been obliged to seek new premises which, in the Government’s view, could not be regarded as places of detention or arrest. The surveillance of the CSPA by the Italian authorities was merely protective, in order to avoid criminal or harmful acts being committed by the migrants or against the local inhabitants. In the Government’s view, the need for such surveillance had been shown by the subsequent events, in particular the above-mentioned arson attack and the clashes between local people and a group of migrants (see paragraph 26 above). 60. In the light of the foregoing, the Government argued, as they had done before the Chamber, that there had been neither “arrest” nor “detention” but merely a “holding” measure. The applicants had been rescued on the high seas and taken to the island of Lampedusa to assist them and to ensure their physical safety. The Government explained that the authorities had been obliged by law to save and identify the applicants, who had been in Italian territorial waters at the time their vessels had been intercepted by the coastguards. Any measure taken against the applicants could not therefore, in their view, be regarded as an arbitrary deprivation of liberty. On the contrary, the measures had been necessary to deal with a situation of humanitarian emergency and to strike a fair balance between the safety of the migrants and that of the local inhabitants. (b) The applicants 61. The applicants acknowledged that, under Italian law, the CSPAs were not detention centres but reception facilities. They argued, however, that this fact did not preclude the finding that, in practice, they had been deprived of their liberty in the Lampedusa CSPA and on the ships Vincent and Audace, in spite of the domestic law classification of the confinement. They observed that, to ascertain whether a person had been deprived of his or her liberty, the starting-point had to be his or her concrete situation and not the legal characterisation of the facility in question. Otherwise States would be able to implement forms of deprivation of liberty without any safeguards simply by classifying the premises in question as a “reception facility” rather than a “detention facility”. 62. The applicants pointed out that they had been held in a secure facility under the constant watch of the police for periods of nine and twelve days respectively without the possibility of leaving. That situation had been confirmed by the reports of the PACE Ad Hoc Sub-Committee (see paragraph 49 above) and of the Senate’s Special Commission (see paragraph 35 above). The Commission had reported prolonged periods of confinement, inability to communicate with the outside world and a lack of freedom of movement. 2. Third-party intervention 63. The Centre for Human Rights and Legal Pluralism of McGill University (“the McGill Centre”) observed that the facts of the case were similar to those in Abdolkhani and Karimnia v. Turkey (no. 30471/08, 22 September 2009), where the Court had dismissed the respondent Government’s argument that the applicants had not been detained but accommodated. 3. The Court’s assessment (a) Principles laid down in the Court’s case-law 64. The Court reiterates that, in proclaiming the right to liberty, the first paragraph of Article 5 is concerned with a person’s physical liberty and its aim is to ensure that no one should be dispossessed of such liberty in an arbitrary fashion (see Medvedyev and Others v. France [GC], no. 3394/03, § 73, ECHR 2010). The difference between deprivation of liberty and restrictions on freedom of movement under Article 2 of Protocol No. 4 is merely one of degree or intensity, and not one of nature or substance. Although the process of classification into one or other of these categories sometimes proves to be no easy task, in that some borderline cases are a matter of pure opinion, the Court cannot avoid making the selection upon which the applicability or inapplicability of Article 5 depends (see Guzzardi v. Italy, 6 November 1980, §§ 92-93, Series A no. 39). In order to determine whether a person has been deprived of liberty, the starting-point must be his or her concrete situation, and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question (see Amuur v. France, 25 June 1996, § 42, Reports of Judgments and Decisions 1996-III, and Stanev v. Bulgaria [GC], no. 36760/06, § 115, ECHR 2012). (b) Application of those principles in the present case 65. The Court begins by noting that the Government acknowledged that the Italian authorities had kept the CSPA at Contrada Imbriacola under surveillance (see paragraph 59 above) and did not dispute the applicants’ allegation (see paragraph 62 above) that they were prohibited from leaving the centre and the ships Vincent and Audace. 66. Moreover, like the Chamber, the Court notes that in paragraph 54 of its report published on 30 September 2011 (see paragraph 49 above), the PACE Ad Hoc Sub-Committee found that “[d]espite the authorities’ claim that the Tunisians were not detainees because they were not in cells, ... the conditions to which they were subjected [in the Contrada Imbriacola centre] were similar to detention and deprivation of freedom”. It also stated that the migrants were, “[i]n practice, ... imprisoned there without access to a judge” (see §§ 54-55 of the report). 67. Similar observations can be found in the report of the Senate’s Special Commission (see paragraph 35 above), which referred to the “prolonged confinement”, “inability to communicate with the outside world” and “lack of freedom of movement” of the migrants placed in the Lampedusa reception centres. 68. Before the Court, the Government did not adduce any material capable of calling into question the findings of those two independent bodies, one of which, the Senate’s Special Commission, is an institution of the respondent State. Nor did the Government submit any information to suggest that the applicants were free to leave the Contrada Imbriacola CSPA. On the contrary, the applicants’ version seems to be corroborated by the fact – not disputed by the Government – that when on 21 September 2011 they had managed to evade the police surveillance and reach the village of Lampedusa, they were stopped by the police and taken back to the reception centre (see paragraph 14 above). This suggests that the applicants were being held at the CSPA involuntarily (see, mutatis mutandis, Stanev, cited above, § 127). 69. Similar considerations apply to the ships Vincent and Audace, which, according to the Government themselves, were to be regarded as the “natural extension of the CSPA” (see paragraph 58 above). The Court finds no evidence in the file to suggest that the applicants could have left the ships, not even when they were moored in Palermo harbour. 70. The Court notes, lastly, that the duration of the applicants’ confinement in the CSPA and on the ships, lasting for about twelve days in the case of the first applicant and about nine days in that of the second and third applicants, was not insignificant. 71. In the light of the foregoing, the Court finds that the classification of the applicants’ confinement in domestic law cannot alter the nature of the constraining measures imposed on them (see, mutatis mutandis, Abdolkhani and Karimnia, cited above, §§ 126-27). Moreover, the applicability of Article 5 of the Convention cannot be excluded by the fact, relied on by the Government, that the authorities’ aim had been to assist the applicants and ensure their safety (see paragraphs 58-59 above). Even measures intended for protection or taken in the interest of the person concerned may be regarded as a deprivation of liberty. The Court observes that Article 5 § 1 authorises, in its sub-paragraph (d), the “detention of a minor by lawful order for the purpose of educational supervision” (see, for example, Blokhin v. Russia [GC], no. 47152/06, §§ 164-72, ECHR 2016, and D.L. v. Bulgaria, no. 7472/14, §§ 6 and 69-71, 19 May 2016) and in its sub-paragraph (e), the “lawful detention ... of persons of unsound mind, alcoholics or drug addicts or vagrants” (see, for example, De Wilde, Ooms and Versyp v. Belgium, 18 June 1971, §§ 67-70, Series A no. 12; Winterwerp v. the Netherlands, 24 October 1979, § 39, Series A no. 33; and, in particular, Witold Litwa v. Poland, no. 26629/95, § 60, ECHR 2000-III). 72. Having regard to the restrictions imposed on the applicants by the authorities, the Court finds that the applicants were deprived of their liberty, within the meaning of Article 5, in the Contrada Imbriacola CSPA and on the ships Vincent and Audace, and that Article 5 is therefore applicable. 73. It follows that the Court has jurisdiction ratione materiae to examine the applicants’ complaints under Article 5. The Government’s objection in that connection must therefore be dismissed. C. Merits 1. The parties’ submissions (a) The applicants 74. According to the applicants, their deprivation of liberty had no legal basis. They observed that they had been held in closed facilities under constant police surveillance with the aim of “preventing them from unlawfully entering” Italy. They argued, however, that the authorities had not acted in accordance with the law, because no refusal-of-entry or removal procedure compliant with domestic law had been initiated against them; instead they had been returned using a simplified procedure provided for by an agreement of 2011 between Italy and Tunisia (see paragraphs 36-40 above). They emphasised that their deprivation of liberty had not been justified by any judicial decision. 75. The applicants explained that under Italian law (Article 14 of Legislative Decree no. 286 of 1998, see paragraph 33 above), the only legal form of deprivation of liberty of an unlawful migrant awaiting return was placement in a CIE, subject to judicial supervision (validation of administrative detention decisions by a Justice of the Peace), as required by Article 5 of the Convention. 76. The applicants reiterated their observations before the Chamber. They argued in particular that, according to the legislation, the Lampedusa CSPA and the ships moored in Palermo harbour were not detention facilities but open reception facilities and that no form of validation of such placement by a judicial authority was provided for. By using the CSPA as a detention centre, Italy had removed the applicants’ deprivation of liberty from any judicial supervision. The same could be said of their confinement on the ships. 77. The applicants also observed that the treatment to which they had been subjected could not be justified on the basis of Article 10 § 2 of Legislative Decree no. 286 of 1998 (see paragraph 33 above), which in their view provided for so-called “deferred” refusal of entry when an alien had entered Italy, “for purposes of public assistance”. The above-cited Article 10 made no mention of deprivation of liberty or of any procedure for a possible confinement measure. 78. In so far as the Government had argued that the situation complained of had been prompted by an emergency, the applicants argued that the real source of the problems on the island had been the political decision to concentrate the confinement of aliens on Lampedusa. In their view there was no insurmountable organisational difficulty preventing the authorities from arranging a regular service for the transfer of migrants to other places in Italy. Moreover, they explained that to deprive aliens of their liberty without judicial oversight was not permitted by any domestic legislation, even in an emergency. Article 13 of the Constitution (see paragraph 32 above) provided that in exceptional cases of necessity and urgency, the administrative authority was entitled to adopt measures entailing deprivation of liberty; however, such measures had to be referred within forty-eight hours to a judicial authority, which had to validate them in the following forty-eight hours. In the present case the applicants submitted that they had been deprived of their liberty without any decision by an administrative authority and without validation by a judicial authority. 79. The applicants also noted that the conditions for derogation under Article 15 of the Convention were not met and that in any event Italy had not notified its intention to exercise its right of derogation. Accordingly, even if it were proven – contrary to the applicants’ position – that the Italian Government had been obliged, at the relevant time, to handle an unforeseeable and exceptional arrival of migrants, no conclusion could be drawn therefrom for the purposes of Article 5 of the Convention. 80. The applicants argued that, in spite of repeated criticisms from various national and international institutions, the procedure for managing the arrival of migrants as described in their application was still applied by the Italian authorities, with the result that there was a systemic and structural violation of the fundamental right to liberty of migrants and the courts had allowed it to continue. The applicants pointed out in this connection that from the autumn of 2015 onwards, the Lampedusa CSPA had been identified as one of the facilities where the so-called “hotspot” approach could be implemented, as recommended by the European Union, whereby migrants would be identified and asylum-seekers separated from economic migrants. In 2016 the Italian authorities had continued to run this facility as a secure centre where migrants were detained without any legal basis. (b) The Government 81. The Government observed, as they had done before the Chamber, that the facts of the case did not fall within the scope of sub-paragraph (f) of Article 5 § 1 of the Convention; the applicants had not been held pending deportation or extradition, but had on the contrary been temporarily allowed to enter Italy. In that connection, the Government pointed out that the applicants had been accommodated in a CSPA, and not sent to a CIE. They explained that the legal conditions for placing the applicants in a CIE had not been fulfilled; in particular, no additional verification of their identity had been necessary in their view. 82. The Government acknowledged that, as indicated by the Palermo preliminary investigations judge in his decision of 1 June 2012 (see paragraphs 24-29 above), the domestic provisions in force did not expressly provide for a confinement measure in respect of migrants placed in a CSPA. Such a measure, under the supervision of the Justice of the Peace, was, however, provided for when migrants were placed in a CIE. The presence of the migrants in the CSPA had nevertheless been duly recorded. Moreover, each of the migrants had been issued with a refusal-of-entry and removal order, mentioning the date of their unlawful entry into Italy. Those orders had been duly notified to the migrants concerned. In the Government’s submission, they had not been referred to the Justice of the Peace because such supervision was only necessary in cases of deportation ( espulsione ) and not refusal of entry ( respingimento ). 83. At the hearing before the Court, the Government further alleged that the bilateral agreement between Italy and Tunisia (see paragraphs 36-40 above) could have constituted a legal basis for the holding of the applicants on the island of Lampedusa pending their prompt return. The aim of that agreement had been to reinforce border controls and to facilitate the return of irregular migrants through simplified procedures; it had also been announced, for example, on the websites of the Italian Ministries of the Interior and of Foreign Affairs and on that of the Tunisian Government. In the Government’s view, it would not be credible to suggest that the applicants, who had access to modern information technology, had not been aware of the return procedures applicable to them. 2. Third-party intervention (a) AIRE Centre and ECRE 84. The AIRE Centre and ECRE argued that, under Article 1 of the European Union’s Charter of Fundamental Rights, any measures entailing the deprivation of liberty of migrants and the conditions of such detention had to ensure respect for their human dignity and for the principle of non ‑ discrimination, regardless of the number of new arrivals and any situation of emergency that might arise in a given State. Moreover, recital 16 in the preamble to the Return Directive (see paragraph 41 above) stated as follows: “The use of detention for the purpose of removal should be limited and subject to the principle of proportionality with regard to the means used and objectives pursued. Detention is justified only to prepare the return or carry out the removal process and if the application of less coercive measures would not be sufficient”. In addition, States had to ensure that the necessary legal assistance and/or representation was granted at the migrant’s request (Article 13 § 4 of the Return Directive). 85. The two third-party interveners observed that in its Bashir Mohamed Ali Mahdi judgment (case C-146/14 PPU, 5 June 2014), the CJEU had explained that the Return Directive, read in the light of Articles 6 and 47 of the Charter of Fundamental Rights, provided that any decision adopted by a competent authority, on expiry of the maximum period allowed for the initial detention of a third-country national, had to be in the form of a written measure that included the reasons in fact and in law for that decision. In addition, the review of the reasons for extending the detention of a third-country national had to be carried out on a case-by-case basis, applying the proportionality principle, to ascertain whether detention might be replaced with a less coercive measure or whether the migrant should be released. Lastly, the CJEU had found that the judicial authority had power to take into account the facts stated and evidence adduced by the administrative authority which had brought the matter before it, as well as any facts, evidence and observations which might be submitted to the judicial authority in the course of the proceedings. (b) The McGill Centre 86. According to the McGill Centre, the principle of proportionality should guide the Court in its analysis of the arbitrary nature of a detention. The law and legal theory were lacking when it came to the status and protection applicable to irregular migrants who did not apply for asylum; this legal void made them particularly vulnerable. The United Nations Human Rights Committee had interpreted Article 9 of the International Covenant on Civil and Political Rights as incorporating a requirement of lawfulness and a broader protection against arbitrariness. It had specified that additional factors such as lack of cooperation or the possibility of absconding had to be present in order for the detention of an irregular migrant to be in conformity with Article 9, and that the existence of other, less invasive, means had to be taken into account (the intervening party referred, inter alia, to C. v. Australia, Communication no. 900/1999, UN document CCPRIC/76/D900/1999 (2002)). Similar principles, such as that of the proportionality of the detention in the light of the circumstances, were to be found in texts of the Council of Europe and EU directives, to the effect that detention should be used only as a measure of last resort. 87. The third-party intervener argued that the detention had to be based on a clear and certain legal basis or on a valid judicial decision, with the possibility of effective and rapid judicial supervision as to its conformity with national and international law. While the Court had been careful not to impose an excessive burden on States dealing with significant migratory flows, it nevertheless should only find the detention of migrants to be proportionate where there were no other, less invasive, means of achieving the aim pursued. The Court had taken a step in that direction in the case of Rusu v. Austria (no. 34082/02, 2 October 2008), where, as there was no indication that the applicant had any intention of staying illegally in Austria or that she would not have cooperated in the removal process, it had found the detention to be arbitrary. 3. The Court’s assessment (a) Principles established in the Court’s case-law 88. The Court reiterates that Article 5 enshrines a fundamental human right, namely the protection of the individual against arbitrary interference by the State with his or her right to liberty. Sub-paragraphs (a) to (f) of Article 5 § 1 contain an exhaustive list of permissible grounds on which persons may be deprived of their liberty and no deprivation of liberty will be lawful unless it falls within one of those grounds. Moreover, only a narrow interpretation of those exceptions is consistent with the aim of that provision, namely to ensure that no one is arbitrarily deprived of his or her liberty (see, among many other authorities, Giulia Manzoni v. Italy, 1 July 1997, § 25, Reports 1997-IV; Labita v. Italy [GC], no. 26772/95, § 170, ECHR 2000 ‑ IV; Velinov v. the former Yugoslav Republic of Macedonia, no. 16880/08, § 49, 19 September 2013; and Blokhin, cited above, § 166). 89. One of the exceptions, contained in sub-paragraph (f) of Article 5 § 1, permits the State to control the liberty of aliens in an immigration context (see Saadi v. the United Kingdom [GC], no. 13229/03, § 43, ECHR 2008; A. and Others v. the United Kingdom [GC], no. 3455/05, §§ 162-163, ECHR 2009; and Abdolkhani and Karimnia, cited above, § 128). 90. Article 5 § 1 (f) does not require the detention to be reasonably considered necessary, for example to prevent the individual from committing an offence or fleeing. However, any deprivation of liberty under the second limb of Article 5 § 1 (f) will be justified only as long as deportation or extradition proceedings are in progress. If such proceedings are not prosecuted with “due diligence”, the detention will cease to be permissible under Article 5 § 1 (f) (see A. and Others v. the United Kingdom, cited above, § 164). 91. The deprivation of liberty must also be “lawful”. Where the “lawfulness” of detention is in issue, including the question whether “a procedure prescribed by law” has been followed, the Convention refers essentially to national law and lays down the obligation to conform to the substantive and procedural rules of that law, but it requires in addition that any deprivation of liberty should be in keeping with the purpose of Article 5, namely to protect the individual from arbitrariness (see Herczegfalvy v. Austria, 24 September 1992, § 63, Series A no. 244; Stanev, cited above, § 143; Del Río Prada v. Spain [GC], no. 42750/09, § 125, ECHR 2013; and L.M. v. Slovenia, no. 32863/05, § 121, 12 June 2014). In laying down that any deprivation of liberty must be effected “in accordance with a procedure prescribed by law”, Article 5 § 1 primarily requires any arrest or detention to have a legal basis in domestic law. However, these words do not merely refer back to domestic law. They also relate to the quality of the law, requiring it to be compatible with the rule of law, a concept inherent in all Articles of the Convention (see Amuur, cited above, § 50, and Abdolkhani and Karimnia, cited above, § 130). 92. On this last point, the Court stresses that where deprivation of liberty is concerned it is particularly important that the general principle of legal certainty be satisfied. It is therefore essential that the conditions for deprivation of liberty under domestic law be clearly defined and that the law itself be foreseeable in its application, so that it meets the standard of “lawfulness” set by the Convention, a standard which requires that all law be sufficiently precise to allow the person – if need be, with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail (see Baranowski v. Poland, no. 28358/95, §§ 50-52, ECHR 2000-III; Steel and Others v. the United Kingdom, 23 September 1998, § 54, Reports 1998 ‑ VII; Ječius v. Lithuania, no. 34578/97, § 56, ECHR 2000 ‑ IX; Paladi v. Moldova [GC], no. 39806/05, § 74, 10 March 2009; and Mooren v. Germany [GC], no. 11364/03, § 76, 9 July 2009). (b) Application of those principles in the present case (i) The applicable rule 93. The Court must first determine whether the applicants’ deprivation of liberty was justified under one of the sub-paragraphs of Article 5 § 1 of the Convention. As the list of permissible grounds on which persons may be deprived of their liberty is exhaustive, any deprivation of liberty which does not fall within one of the sub ‑ paragraphs of Article 5 § 1 of the Convention will inevitably breach that provision (see, in particular, the case-law cited in paragraph 88 above). 94. The Government, arguing that the applicants were not awaiting deportation or extradition, took the view that the facts of the case did not fall within sub-paragraph (f) of Article 5 § 1 of the Convention, which authorised a person’s “lawful arrest or detention ... to prevent his effecting an unauthorised entry into the country” or when “deportation or extradition” proceedings were pending against the person (see paragraph 81 above). The Government did not, however, indicate under which other sub-paragraph of Article 5 the deprivation of liberty could be justified in the applicants’ case. 95. The applicants were of the view, however, that they had been deprived of their liberty with the aim of “prevent[ing them from] effecting an unauthorised entry into” Italy (see paragraph 74 above). 96. Like the Chamber, and in spite of the Government’s submission and the classification of the applicants’ return in domestic law, the Court is prepared to accept that the deprivation of liberty in the applicants’ case fell within sub-paragraph (f) of Article 5 § 1 (see, mutatis mutandis, Čonka v. Belgium, no. 51564/99, § 38, ECHR 2002-I). In that connection it observes that the applicants had entered Italy and that the refusal-of-entry orders concerning them (see paragraph 19 above) had stated expressly that they had entered the country by evading border controls, and therefore unlawfully. Moreover, the procedure adopted for their identification and return manifestly sought to address that unlawful entry. (ii) Whether there was a legal basis 97. It must now be determined whether the applicants’ detention had a legal basis in Italian law. 98. It is not in dispute between the parties that only Article 14 of the “Consolidated text of provisions concerning immigration regulations and rules on the status of aliens” (Legislative Decree no. 286 of 1998 – see paragraph 33 above) authorises, on the order of the Chief of Police, the detention of a migrant “for as long as is strictly necessary”. However, that provision applies only where removal by escorting the person to the border or a refusal-of-entry measure cannot be implemented immediately, because it is necessary to provide assistance to the alien, to conduct additional identity checks, or to wait for travel documents or the availability of a carrier. As a result, migrants in this category are placed in a CIE. However, the Government themselves have admitted that the legal conditions for placement of the applicants in a CIE were not fulfilled, so they were not held in such a facility (see paragraph 81 above). 99. It follows that Article 14 of Legislative Decree no. 286 of 1998 could not have constituted the legal basis for the applicants’ deprivation of liberty. 100. The Court now turns to the question whether such basis could be found in Article 10 of Legislative Decree no. 286 of 1998 (see paragraph 33 above). This provision provides for the refusal of entry and removal of, among other categories of alien, those allowed to remain temporarily in Italy on public assistance grounds. The Court has not found any reference therein to detention or other measures entailing deprivation of liberty that could be implemented in respect of the migrants concerned. Indeed, the Government have not disputed this. 101. In those circumstances the Court does not see how the above-mentioned Article 10 could have constituted the legal basis for the applicants’ detention. 102. To the extent that the Government take the view that the legal basis for holding the applicants on the island of Lampedusa was the bilateral agreement between Italy and Tunisia of April 2011 (see paragraph 83 above), the Court would note at the outset that the full text of that agreement had not been made public. It was therefore not accessible to the applicants, who accordingly could not have foreseen the consequences of its application (see in particular the case-law cited in paragraph 92 above). Moreover, the press release published on the website of the Italian Ministry of the Interior on 6 April 2011 merely referred to a strengthening of the border controls and the possibility of the immediate return of Tunisian nationals through simplified procedures (see paragraphs 37-38 above). It did not, however, contain any reference to the possibility of administrative detention or to the related procedures. 103. The Court further notes that the Government, in an annex to their request for referral to the Grand Chamber, produced for the first time a note verbale concerning another bilateral agreement with Tunisia, preceding that of April 2011 and dating back to 1998 (see paragraph 40 above). Even though that agreement does not seem to be the one applied to the applicants, the Court has examined the note verbale in question. It has not, however, found any reference in it to cases where irregular migrants might be subjected to measures depriving them of their liberty. Point 5 of Chapter II of the note verbale merely indicates that interviews could be carried out at the court office, or in the reception centre or medical facility where the persons concerned were legally residing, without adding any clarification. In those circumstances it is difficult to understand how the scant information available as to the agreements entered into at different times between Italy and Tunisia could have constituted a clear and foreseeable legal basis for the applicants’ detention. 104. The Court would further observe that its finding that the applicants’ detention was devoid of legal basis in Italian law has been confirmed by the report of the Senate’s Special Commission (see paragraph 35 above). The Special Commission noted that stays at the Lampedusa centre, which in principle should have been limited to the time strictly necessary to establish the migrant’s identity and the lawfulness of his or her presence in Italy, sometimes extended to over twenty days “without there being any formal decision as to the legal status of the person being held”. According to the Special Commission, such prolonged confinement, “without any legal or administrative measure” providing for it, had led to “heightened tension”. It should also be noted that the PACE Ad Hoc Sub-Committee expressly recommended that the Italian authorities “clarify the legal basis for the de facto detention in the reception centres in Lampedusa”, and where Tunisians in particular were concerned, that they should “keep irregular migrants in administrative detention only under a procedure prescribed by law, authorised by a judicial authority and subject to periodic judicial review” (see § 92, (vi) and (vii), of the report published on 30 September 2011, cited in paragraph 49 above). 105. In the light of the legal situation in Italy and the foregoing considerations, the Court takes the view that persons placed in a CSPA, which is formally regarded as a reception facility and not a detention centre, could not have the benefit of the safeguards applicable to placement in a CIE, which for its part had to be validated by an administrative decision subject to review by the Justice of the Peace. The Government did not allege that such a decision had been adopted in respect of the applicants and, in his decision of 1 June 2012, the Palermo preliminary investigations judge stated that the Agrigento police authority had merely registered the presence of the migrants in the CSPA without ordering their placement and that the same was true for the migrants’ transfer to the ships (see paragraphs 25-26 above). Consequently, the applicants were not only deprived of their liberty without a clear and accessible legal basis, they were also unable to enjoy the fundamental safeguards of habeas corpus, as laid down, for example, in Article 13 of the Italian Constitution (see paragraph 32 above). Under that provision, any restriction of personal liberty has to be based on a reasoned decision of the judicial authority, and any provisional measures taken by a police authority, in exceptional cases of necessity and urgency, must be validated by the judicial authority within forty-eight hours. Since the applicants’ detention had not been validated by any decision, whether judicial or administrative, they were deprived of those important safeguards. 106. In the light of the foregoing, the Court finds that the provisions applying to the detention of irregular migrants were lacking in precision. That legislative ambiguity has given rise to numerous situations of de facto deprivation of liberty and the fact that placement in a CSPA is not subject to judicial supervision cannot, even in the context of a migration crisis, be compatible with the aim of Article 5 of the Convention: to ensure that no one should be deprived of his or her liberty in an arbitrary fashion (see, among many other authorities, Saadi, cited above, § 66). 107. Those considerations are sufficient for the Court to find that the applicants’ deprivation of liberty did not satisfy the general principle of legal certainty and was not compatible with the aim of protecting the individual against arbitrariness. It cannot therefore be regarded as “lawful” within the meaning of Article 5 § 1 of the Convention. 108. Accordingly, there has been a violation of Article 5 § 1 of the Convention in the present case. III. ALLEGED VIOLATION OF ARTICLE 5 § 2 OF THE CONVENTION 109. The applicants complained that they had not had any kind of communication with the Italian authorities throughout their stay in Italy. They relied on Article 5 § 2 of the Convention, which reads as follows: “2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.” A. Chamber judgment 110. The Chamber observed that the applicants had most probably been made aware of their status as irregular migrants but found that basic information as to the legal status of a migrant did not satisfy the requirements of Article 5 § 2 of the Convention, under which the legal and factual grounds for the deprivation of liberty had to be notified to the person concerned. The Chamber further noted that the Government had failed to produce any official document addressed to the applicants containing such information. Moreover, the refusal-of-entry orders, which made no mention of the applicants’ detention, were apparently notified only on 27 and 29 September 2011, respectively, whereas the applicants had been placed in the CSPA on 17 and 18 September. Thus they had not been provided with the information “promptly” as required by Article 5 § 2. The Chamber thus concluded that there had been a violation of this provision (see paragraphs 82-85 of the Chamber judgment). B. The parties’ submissions 1. The applicants 111. The applicants observed that the refusal-of-entry orders had been adopted only at the time of the enforcement of their return, and thus only at the end of the period of detention. Consequently, they took the view that, even assuming that those orders had been notified to them, the guarantee of being informed “promptly” under Article 5 § 2 of the Convention had not been observed. In addition, those orders had merely set out in a summary and standardised manner the legal basis for the refusal-of-entry measure, but had made no mention, not even implicitly, of the reasons for their detention pending removal. 112. The applicants further took the view that the information provided for in Article 5 § 2 had to emanate from the authority carrying out the arrest or placement in detention – or, in any event, from official sources. During their deprivation of liberty they had had no contact with the authorities, not even orally, concerning the reasons for their detention. The fact that members of non-governmental organisations had been able to communicate with the migrants on this subject could not, in their view, satisfy the requirements of that provision. 2. The Government 113. The Government asserted that the applicants had been informed in a language which they understood, by police officers present on the island, assisted by interpreters and cultural mediators, of their status, which was that of Tunisian citizens temporarily admitted to Italian territory for reasons of “public assistance”, in accordance with Article 10 § 2 (b) of Legislative Decree no. 286 of 1998 (see paragraph 33 above). In their view, that status had automatically entailed the applicants’ return to Tunisia, as provided for in the refusal-of-entry and removal orders. In any event, the members of the organisations which had access to the CSPA at Contrada Imbriacola had informed the migrants about their situation and the possibility of their imminent removal. C. Third-party intervention 114. The McGill Centre observed that the right to be informed of the reason for detention was necessary in order to be able to challenge the lawfulness of the measure. The United Nations working group on arbitrary detention required that the information given to the detainee at the time of his or her arrest had to explain how the detention could be challenged. The Centre added that the lawfulness of the detention had to be open to regular review when it was extended. D. The Court’s assessment 1. Principles established in the Court’s case-law 115. Paragraph 2 of Article 5 lays down an elementary safeguard: any person who has been arrested should know why he is being deprived of his liberty. This provision is an integral part of the scheme of protection afforded by Article 5: any person who has been arrested must be told, in simple, non-technical language that he can understand, the essential legal and factual grounds for his deprivation of liberty, so as to be able to apply to a court to challenge its lawfulness in accordance with paragraph 4 (see Van der Leer v. the Netherlands, 21 February 1990, § 28, Series A no. 170 ‑ A, and L.M. v. Slovenia, cited above, §§ 142-43). Whilst this information must be conveyed “promptly”, it need not be related in its entirety by the arresting officer at the very moment of the arrest. Whether the content and promptness of the information conveyed were sufficient is to be assessed in each case according to its special features (see Fox, Campbell and Hartley v. the United Kingdom, 30 August 1990, § 40, Series A no. 182, and Čonka, cited above, § 50). 116. In addition, the Court has previously held that the requirement of prompt information is to be given an autonomous meaning extending beyond the realm of criminal law measures (see Van der Leer, cited above, §§ 27-28, and L.M. v. Slovenia, cited above, § 143). 2. Application of those principles in the present case 117. The Court would observe that it has already found, under Article 5 § 1 of the Convention, that the applicants’ detention had no clear and accessible legal basis in Italian law (see paragraphs 93-108 above). In those circumstances the Court fails to see how the authorities could have informed the applicants of the legal reasons for their deprivation of liberty or thus have provided them with sufficient information to enable them to challenge the grounds for the measure before a court. 118. It is highly probable, of course, that the applicants were aware that they had entered Italy unlawfully. As the Chamber rightly pointed out, the very nature of their journey, on rudimentary vessels (see paragraph 11 above), and the fact that they had not applied for entry visas, indicated that they had sought to circumvent immigration laws. Moreover, the PACE Ad Hoc Sub-Committee observed that the Tunisians with whom its members had spoken “were perfectly aware that they had entered Italian territory illegally” (see § 56 of the report published on 30 September 2011, cited in paragraph 49 above). Lastly, there is no reason to contradict the Government’s statement that the applicants had been informed, in a language they understood, by police officers on the island, assisted by interpreters and cultural mediators, that they had been temporarily allowed to enter Italy for purposes of “public assistance”, with the prospect of their imminent return (see paragraph 113 above). Nevertheless, information about the legal status of a migrant or about the possible removal measures that could be implemented cannot satisfy the need for information as to the legal basis for the migrant’s deprivation of liberty. 119. Similar considerations apply to the refusal-of-entry orders. The Court has examined those documents (see paragraph 19 above), without finding any reference in them to the applicants’ detention or to the legal and factual reasons for such a measure. The orders in question merely stated that they had “entered the territory of the country by evading the border controls” and that they were to be returned. 120. It should also be observed that the refusal-of-entry orders were apparently notified to the applicants very belatedly, on 27 and 29 September 2011, respectively, although they had been placed in the CSPA on 17 and 18 September (see paragraphs 19-20 above). Consequently, even if the orders had contained information as to the legal basis for the detention, which was not the case, they would not in any event have satisfied the requirement of promptness (see, mutatis mutandis, Shamayev and Others v. Georgia and Russia, no. 36378/02, § 416, ECHR 2005 ‑ III, and L.M. v. Slovenia, cited above, § 145, where the Court found that an interval of four days fell outside the time constraints imposed by the notion of promptness for the purposes of Article 5 § 2). 121. The Court lastly notes that, apart from the refusal-of-entry orders, the Government have not adduced any document capable of satisfying the requirements of Article 5 § 2 of the Convention. 122. The foregoing considerations suffice for it to conclude that, in the present case, there has been a violation of Article 5 § 2. IV. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION 123. The applicants alleged that at no time had they been able to challenge the lawfulness of their deprivation of liberty. They relied on Article 5 § 4 of the Convention, which reads as follows: “Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” A. The Chamber judgment 124. The Chamber found that, since the applicants had not been informed of the reasons for their deprivation of liberty, their right to have its lawfulness decided had been deprived of all effective substance. This consideration sufficed for the Chamber to find that there had been a violation of Article 5 § 4 of the Convention. It additionally observed that the refusal-of-entry orders did not mention the legal or factual basis for the applicants’ detention and that the orders had been notified to the applicants shortly before their return by plane, and therefore at a time when their deprivation of liberty had been about to end. Accordingly, even assuming that the lodging of an appeal against those orders with the Justice of the Peace could be regarded as affording an indirect review of the lawfulness of the detention, such an appeal could not have been lodged until it was too late (see paragraphs 95-98 of the Chamber judgment). B. The parties’ submissions 1. The applicants 125. The applicants did not deny that there had been a possibility of appealing against the refusal-of-entry orders, but submitted that they had not been able to challenge the lawfulness of their detention. No decision justifying their deprivation of liberty had been adopted or notified to them; accordingly, it had not been open to them to challenge any such decision in a court. In addition, the refusal-of-entry orders had not concerned their liberty, but rather their removal, and had been adopted at the end of their period of detention. 2. The Government 126. The Government noted that the refusal-of-entry orders had indicated that it was open to the applicants to lodge an appeal with the Justice of the Peace in Agrigento (see paragraph 19 above). Some other Tunisian migrants had in fact used that remedy, and in 2011 the Justice of the Peace had annulled two refusal-of-entry orders (see paragraphs 30-31 above) as a result. The Government concluded that the applicants had certainly had the possibility of applying to a court to challenge the lawfulness of their alleged deprivation of liberty. 127. At the hearing before the Court, the Government further argued that since the applicants had been accommodated in the CSPA and on board the ships for reasons of assistance, no judicial review of their detention had been necessary. C. The Court’s assessment 1. Principles established in the Court’s case-law 128. The Court reiterates that Article 5 § 4 entitles detained persons to institute proceedings for a review of compliance with the procedural and substantive conditions which are essential for the “lawfulness”, in Convention terms, of their deprivation of liberty. The notion of “lawfulness” under paragraph 4 of Article 5 has the same meaning as in paragraph 1, such that a detained person is entitled to a review of the “lawfulness” of his detention in the light not only of the requirements of domestic law but also of the Convention, the general principles embodied therein and the aim of the restrictions permitted by Article 5 § 1. Article 5 § 4 does not guarantee a right to judicial review of such a scope as to empower the court, on all aspects of the case including questions of pure expediency, to substitute its own discretion for that of the decision-making authority. The review should, however, be wide enough to bear on those conditions which are essential for the “lawful” detention of a person according to Article 5 § 1 (see E. v. Norway, 29 August 1990, § 50, Series A no. 181-A). The reviewing “court” must not have merely advisory functions but must have the competence to “decide” the “lawfulness” of the detention and to order release if the detention is unlawful (see Ireland v. the United Kingdom, 18 January 1978, § 200, Series A no. 25; Weeks v. the United Kingdom, 2 March 1987, § 61, Series A no. 114; Chahal v. the United Kingdom, 15 November 1996, § 130, Reports 1996 ‑ V; and A. and Others v. the United Kingdom, cited above, § 202). 129. The forms of judicial review satisfying the requirements of Article 5 § 4 may vary from one domain to another, and will depend on the type of deprivation of liberty in issue. It is not the Court’s task to inquire into what would be the most appropriate system in the sphere under examination (see Shtukaturov v. Russia, no. 44009/05, § 123, ECHR 2008, and Stanev, cited above, § 169). 130. The existence of the remedy must nevertheless be sufficiently certain, not only in theory but also in practice, failing which it will lack the requisite accessibility and effectiveness (see Vachev v. Bulgaria, no. 42987/98, § 71, ECHR 2004-VIII, and Abdolkhani and Karimnia, cited above, § 139). 131. Article 5 § 4 also secures to persons arrested or detained the right to have the lawfulness of their detention decided “speedily” by a court and to have their release ordered if the detention is not lawful (see, for example, Baranowski, cited above, § 68). Proceedings concerning issues of deprivation of liberty require particular expedition (see Hutchison Reid v. the United Kingdom, no. 50272/99, § 79, ECHR 2003-IV), and any exceptions to the requirement of “speedy” review of the lawfulness of a measure of detention call for strict interpretation (see Lavrentiadis v. Greece, no. 29896/13, § 45, 22 September 2015). The question whether the principle of speedy proceedings has been observed is not to be addressed in the abstract but in the context of a general assessment of the information, taking into account the circumstances of the case (see Luberti v. Italy, 23 February 1984, §§ 33-37, Series A no. 75; E. v. Norway, cited above, § 64; and Delbec v. France, no. 43125/98, § 33, 18 June 2002), particularly in the light of the complexity of the case, any specificities of the domestic procedure and the applicant’s behaviour in the course of the proceedings (see Bubullima v. Greece, no. 41533/08, § 27, 28 October 2010). In principle, however, since the liberty of the individual is at stake, the State must ensure that the proceedings are conducted as quickly as possible (see Fuchser v. Switzerland, no. 55894/00, § 43, 13 July 2006, and Lavrentiadis, cited above, § 45). 2. Application of those principles in the present case 132. In cases where detainees had not been informed of the reasons for their deprivation of liberty, the Court has found that their right to appeal against their detention was deprived of all effective substance (see, in particular, Shamayev and Others, cited above, § 432; Abdolkhani and Karimnia, cited above, § 141; Dbouba v. Turkey, no. 15916/09, § 54, 13 July 2010; and Musaev v. Turkey, no. 72754/11, § 40, 21 October 2014). Having regard to its finding, under Article 5 § 2 of the Convention, that the legal reasons for the applicants’ detention in the CSPA and on the ships had not been notified to them (see paragraphs 117-22 above), the Court must reach a similar conclusion under this head. 133. This consideration suffices for the Court to conclude that the Italian legal system did not provide the applicants with a remedy whereby they could obtain a judicial decision on the lawfulness of their deprivation of liberty (see, mutatis mutandis, S.D. v. Greece, no. 53541/07, § 76, 11 June 2009) and makes it unnecessary for the Court to determine whether the remedies available under Italian law could have afforded the applicants sufficient guarantees for the purposes of Article 5 § 4 of the Convention (see, for example and mutatis mutandis, Shamayev and Others, cited above, § 433). 134. As an additional consideration, and in response to the Government’s argument to the effect that an appeal to the Agrigento Justice of the Peace against the refusal-of-entry orders met the requirements of Article 5 § 4 of the Convention (see paragraph 126 above), the Court would note, first, that the refusal-of-entry orders did not make any reference to the applicants’ detention or to the legal or factual reasons for such a measure (see paragraph 119 above), and secondly that the orders were only notified to the applicants when it was too late, on 27 and 29 September 2011 respectively (see paragraph 120 above), shortly before they were returned by plane. This was rightly pointed out by the Chamber. It follows that the orders in question cannot be regarded as the decisions on which the applicants’ detention was based, and the lodging of an appeal against them with the Justice of the Peace could not, in any event, have taken place until after the applicants’ release on their return to Tunisia. 135. There has thus been a violation of Article 5 § 4 of the Convention. V. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 136. The applicants argued that they had sustained inhuman and degrading treatment during their detention in the CSPA at Contrada Imbriacola on the island of Lampedusa and on board the ships Vincent and Audace moored in Palermo harbour. They relied on Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. The Chamber judgment 137. The Chamber began by noting that, following the events surrounding the “Arab Spring”, in 2011 the island of Lampedusa had been facing an exceptional situation characterised by mass arrivals of migrants and a humanitarian crisis, burdening the Italian authorities with many obligations and creating organisational and logistical difficulties (see paragraphs 124-27 of the Chamber judgment). However, in the Chamber’s view, those factors could not release the respondent State from its obligation to secure to the applicants conditions of confinement that were compatible with respect for their human dignity, having regard to the absolute nature of the Article 3 rights (see paragraph 128 of the Chamber judgment). 138. The Chamber then found it appropriate to deal separately with the conditions in the CSPA and on the ships (see paragraph 129 of the Chamber judgment). As to the first situation, it took the view that the applicants’ allegations about the overcrowding problem and general insalubrity of the CSPA were corroborated by the reports of the Senate’s Special Commission, Amnesty International and the PACE Ad Hoc Sub ‑ Committee, thus finding a violation of Article 3 of the Convention, in spite of the short duration of their confinement – between two and three days (see paragraphs 130-36 of the Chamber judgment). 139. The Chamber reached the opposite conclusion as to the applicants’ detention on the ships. It observed that the applicants had been held on the ships for between six and eight days, and that the allegations of poor conditions had been at least partly contradicted by the decision dated 1 June 2012 of the Palermo preliminary investigations judge, whose findings were in turn based on the observations of a member of parliament who had visited the ships and had talked to some of the migrants. In the Chamber’s view, the fact that the MP had been accompanied by the deputy chief of police and police officers did not, in itself, cast doubt on his independence or on the veracity of his account. The Chamber thus found that there had been no violation of Article 3 under this head (see paragraphs 137-44 of the Chamber judgment). B. The parties’ submissions 1. The applicants (a) The existence of a humanitarian emergency and its consequences 140. The applicants argued that the exceptional situation of humanitarian emergency alleged by the Government (see paragraphs 150 ‑ 51 below) could not justify the treatment of which they were victims, either in terms of domestic legislation or under the Convention. Moreover, the mass arrival of migrants on Lampedusa in 2011 had not been an exceptional situation. A similar influx had occurred before the “Arab Spring” and the decision to restrict the initial accommodation of migrants to the island of Lampedusa had sought to give the public the impression of an “invasion” of Italian territory, to be exploited for political ends. The media and the national and international human rights bodies (the applicants referred in particular to the Amnesty International report, see paragraph 50 above) had established that the crisis situation on the island of Lampedusa had arisen well before 2011. In those circumstances, they argued, it could not be concluded that the situation complained of was primarily the result of the urgency of having to deal with the significant influx of migrants following the “Arab Spring”. 141. In any event, the applicants argued that a State such as Italy had the means necessary to transfer migrants rapidly to other places. The conditions in the Lampedusa CSPA had remained atrocious even after 2011, and the migration crisis had continued in the following years, thus showing the systemic and structural nature of the violation of the migrants’ rights. (b) Conditions in the CSPA at Contrada Imbriacola 142. The applicants alleged that the Lampedusa CSPA was overcrowded. The figures produced by the Government showed that at the relevant time this facility had housed over 1,200 individuals, amounting to three times the centre’s normal capacity (381 spaces), but also well above its maximum capacity in case of necessity (804 spaces). Those figures had in fact indicated the presence of 1,357 individuals on 16 September 2011, 1,325 individuals on 17 September, 1,399 on 18 September, 1,265 on 19 September and 1,017 on 20 September. The conditions of hygiene and sanitation had been unacceptable in the applicants’ view, as shown by photographs and by reports of national and international bodies. In particular, owing to a lack of space in the rooms, the applicants alleged that they had been obliged to sleep outside, directly on the concrete floor, to avoid the stench from the mattresses. In their submission, they had had to eat their meals while sitting on the ground, since the CSPA had no canteen, and the toilets were in an appalling state and were often unusable. Both in the CSPA and on the ships the applicants had experienced mental distress on account of the lack of any information about their legal status and the length of their detention, and had also been unable to communicate with the outside world. Acts of self-harm by migrants held in the CSPA showed the state of tension which prevailed inside the facility. 143. The applicants pointed out that the CSPA was theoretically intended to function as a facility for assistance and initial reception. In their view, that type of centre, which did not comply with the European Prison Rules of 11 January 2006, was unsuitable for extended stays in a situation of deprivation of liberty. In their submission, a violation of Article 3 of the Convention could not be excluded either on account of the nature of the CSPA or in view of the short duration of their detention. The duration in question was only one of the factors to be taken into consideration in assessing whether treatment exceeded the threshold of severity required for it to fall within the scope of Article 3. The Court had previously found violations of Article 3 of the Convention even in the case of very short periods of detention where there were other aggravating factors such as particularly appalling conditions or the vulnerability of the victims (the applicants referred to Brega v. Moldova, no. 52100/08, 20 April 2010; T. and A. v. Turkey, no. 47146/11, 21 October 2014; and Gavrilovici v. Moldova, no. 25464/05, 15 December 2009, concerning periods of forty-eight hours, three days and five days respectively). The applicants argued that the same factors were present in their cases and pointed out that at the material time they had just survived a dangerous crossing of the Mediterranean by night in a rubber dinghy, and that this had weakened them physically and psychologically. They had thus been in a situation of vulnerability, accentuated by the fact that their deprivation of liberty had no legal basis, and their mental distress had increased as a result. 144. The applicants explained that they were not complaining of having been beaten, but about the conditions of their detention in the CSPA. Accordingly, the Government’s argument that they should have produced medical certificates (see paragraph 156 below) was not pertinent. (c) The conditions on the ships Vincent and Audace 145. As to their confinement on the ships, the applicants complained that they had been placed in a seriously overcrowded lounge and that they had only been allowed outside in the open air, on small decks, for a few minutes each day. They had been obliged to wait several hours to use the toilets and meals had been distributed by throwing the food on the floor. 146. The applicants disagreed with the Chamber’s findings and alleged that the psychological stress suffered on the ships had been worse than in the CSPA on Lampedusa. The duration of their deprivation of liberty on the ships had been longer than in the CSPA and had followed on from that initial negative experience. In addition, on the ships the applicants had not received any relevant information or explanation and, according to them, the police had occasionally ill-treated or insulted them. 147. In the applicants’ submission, in view of the nature of the ships (which they described as secluded and inaccessible places), it was for the Government to adduce evidence as to what had happened on board. It would be difficult to imagine that the authorities had been able to guarantee better living conditions than those in the CSPA, which was designed to accommodate migrants. The description about beds with clean sheets, the availability of spare clothing, and the access to private cabins and hot water, was also quite implausible. The Government had merely produced a decision of the Palermo preliminary investigations judge (see paragraphs 24-29 above), which was based on the statements of an MP taken only from a newspaper article and not reiterated at the hearing. It had to be borne in mind, in their view, that the police presence during the visit of the MP called into question the reliability of the migrants’ statements to him as they may have feared reprisals. The Government had failed to produce any document attesting to the services allegedly provided on the ships or any contracts with the companies from which they were leased. Lastly, the Italian authorities had not responded to the appeal by Médecins sans Frontières on 28 September 2011, in which that NGO had expressed its concerns and asked to be allowed to carry out an inspection on the ships. 2. The Government (a) The existence of a humanitarian emergency and its consequences 148. The Government submitted that they had monitored the situation on Lampedusa in the period 2011-2012 and had intervened on a factual and legislative level to coordinate and implement the measures required to provide the migrants with aid and assistance. The active presence on the island of the Office of the United Nations High Commissioner for Refugees (UNHCR), the IOM, Save the Children, the Order of Malta, the Red Cross, Caritas, the ARCI (Associazione Ricreativa e Culturale Italiana) and the Community of Sant’Egidio had been placed within the framework of the “Praesidium Project”, financed by Italy and by the European Union. The representatives of those organisations had had unrestricted access to the migrants’ reception facilities. In addition, on 28 May 2013 the Government had signed a memorandum of agreement with the Terre des hommes Foundation, which provided a service of psychological support at the Lampedusa CSPA. On 4 June 2013 the Ministry of the Interior had signed an agreement with the European Asylum Support Office (EASO) to coordinate the reception arrangements for migrants. Medical assistance had been available at all times to the migrants and, since July 2013, the association Médecins sans Frontières had begun to help train the staff at the CSPA and on the ships responsible for rescue at sea. 149. According to the Government, the rescue of migrants arriving on the Italian coast was a problem not only for Italy but for all the member States of the European Union, which had to establish a proper common policy to deal with it. The local institutions in Lampedusa had financed the construction of new aid and assistance centres (6,440,000 euros (EUR) had been invested to create facilities capable of accommodating 1,700 persons). During his visit on 23 and 24 June 2013, the UNHCR representative for Southern Europe had noted with satisfaction the steps taken by the national and local authorities in order to improve the general situation on the island. 150. The Government explained that in 2011 the massive influx of North African migrants had created a situation of humanitarian emergency in Italy. From 12 February to 31 December 2011, 51,573 nationals of countries outside the European Union (about 46,000 men, 3,000 women and 3,000 children) had landed on the islands of Lampedusa and Linosa. Over 26,000 of those individuals had been Tunisian nationals. That situation was well explained in the report of the PACE Ad Hoc Sub-Committee (see paragraph 49 above), which had also reported on the efforts of the Italian authorities, in cooperation with other organisations, to create the necessary facilities for the reception and assistance of migrants, some of whom were vulnerable individuals. 151. In the Government’s opinion, in view of the many demands on States in situations of humanitarian emergency, the Court had to adopt a “realistic, balanced and legitimate approach” when it came to deciding on the “application of ethical and legal rules”. (b) Conditions at the Contrada Imbriacola CSPA 152. The Government stated that, during the relevant period, the CSPA at Contrada Imbriacola had been fully operational and had had the necessary human and material resources to provide aid and initial accommodation to migrants. In addition to the director and two deputy directors, the centre employed ninety-nine “social operators” and cleaning staff, three social workers, three psychologists, eight interpreters and cultural mediators, eight administrative staff and three division managers responsible for supervising activities in the facility. Three doctors and three nurses provided medical assistance in a temporary unit. According to the results of an inspection carried out on 2 April 2011 by the Palermo health services, the conditions of hygiene were satisfactory, and so was the quality and quantity of the food provided. A further inspection immediately after the fire of 20 September 2011 reported that drinking water was provided in bottles and that the canteen was serving meals. Before being transferred to the Lampedusa CSPA, the applicants had undergone a medical examination which showed that they were in good health. Furthermore, minors and particularly vulnerable individuals had been separated from the other migrants and taken to the centre of Loran (see § 31 of the PACE report of 30 September 2011, cited in paragraph 49 above). 153. At the hearing before the Court, the Government pointed out that the migrants accommodated in the Contrada Imbriacola CSPA had been able: (a) to move around freely inside the facility; (b) to have access to all the services available (medical assistance, clothing, food, water and sanitary facilities); (c) to communicate with the outside world and make purchases (on their arrival they had received a telephone card worth EUR 15 and vouchers to be used in the centre); and (d) to have contact with representatives of humanitarian organisations and lawyers. In the Government’s view the centre, which could accommodate up to 1,000 individuals, was not overcrowded. At the hearing before the Court the Government observed that during the applicants’ stay there, 917 migrants had been accommodated in the CSPA at Contrada Imbriacola. 154. In the light of the foregoing, the Government submitted that the applicants had not been subjected to any inhuman or degrading treatment, “because they were not considered to be under arrest or in custody but were simply being assisted pending their return to Tunisia”. The applicants themselves had acknowledged that under Italian law the CSPA was designed for reception, and they had not claimed to have been physically injured there or otherwise ill-treated by the police or the centre’s staff. The Chamber had not duly taken account of the criminal offences which had required the intervention of the local authorities to rescue the migrants and ensure their safety. The Government further emphasised that the applicants had only remained on Lampedusa for a short period. (c) Conditions on the ships Vincent and Audace 155. The Government noted that, in his decision of 1 June 2012 (see paragraphs 24-29 above), the Palermo preliminary investigations judge had found that the measures taken to cope with the presence of migrants on Lampedusa had been compliant with national and international law, and had been adopted with the requisite promptness in a situation of emergency. The judge had also taken the view that the reception conditions on the ships Audace and Vincent had been satisfactory. 156. The Government lastly challenged the applicants’ allegations of ill ‑ treatment by the police, pointing out that they were not based on any evidence such as medical certificates. C. Third-party intervention 157. The Coordination Française pour le droit d’asile, a coalition which submitted written comments on behalf of four associations (Avocats pour la défense des droits des étrangers, Groupe d’information et de soutien des immigré.e.s (GISTI), Ligue des droits de l’homme et du citoyen and the International Federation for Human Rights (Fédération internationale des ligues des droits de l’Homme – FIDH)), asked the Grand Chamber to “solemnly uphold” the Chamber judgment. It submitted that it was necessary to take into account the vulnerability of the migrants, and particularly those who had endured a sea crossing, in assessing the existence of treatment contrary to Article 3 of the Convention. It acknowledged that the Court had rarely found a violation of that Article in cases of short-term detention, and only in the presence of aggravating circumstances. However, the vulnerability of the migrants, combined with conditions of detention that impaired their human dignity, was sufficient for a finding that the level of severity required by Article 3 had been reached. This had been confirmed by the case-law developed by the Court in the case of M.S.S. v. Belgium and Greece ([GC], no. 30696/09, ECHR 2011), by the work of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) and by the observations of the UNHCR. Moreover, conditions of detention were a major factor in the deterioration of the mental health of migrants. D. The Court’s assessment 1. Principles established in the Court’s case-law 158. The Court would reiterate at the outset that the prohibition of inhuman or degrading treatment is a fundamental value in democratic societies (see, among many other authorities, Selmouni v. France [GC], no. 25803/94, § 95, ECHR 1999-V; Labita, cited above, § 119; Gäfgen v. Germany [GC], no. 22978/05, § 87, ECHR 2010; El-Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, § 195, ECHR 2012; and Mocanu and Others v. Romania [GC], nos. 10865/09, 45886/07 and 32431/08, § 315, ECHR 2014 (extracts)). It is also a value of civilisation closely bound up with respect for human dignity, part of the very essence of the Convention (see Bouyid v. Belgium [GC], no. 23380/09, §§ 81 and 89 ‑ 90, ECHR 2015). The prohibition in question is absolute, for no derogation from it is permissible even in the event of a public emergency threatening the life of the nation or in the most difficult circumstances, such as the fight against terrorism and organised crime, irrespective of the conduct of the person concerned (see, inter alia, Chahal, cited above, § 79; Georgia v. Russia (I) [GC], no. 13255/07, § 192, ECHR 2014 (extracts); Svinarenko and Slyadnev v. Russia [GC], nos. 32541/08 and 43441/08, § 113, ECHR 2014 (extracts); and Bouyid, cited above, § 81). (a) Whether the treatment falls within Article 3 of the Convention 159. Nevertheless, according to the Court’s well-established case-law, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of that level is relative and depends on all the circumstances of the case, principally the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim (see, among other authorities, Ireland v. the United Kingdom, cited above, § 162; Price v. the United Kingdom, no. 33394/96, § 24, ECHR 2001 ‑ VII; Mouisel v. France, no. 67263/01, § 37, ECHR 2002 ‑ IX; Jalloh v. Germany [GC], no. 54810/00, § 67, ECHR 2006 ‑ IX; Gäfgen, cited above, § 88; El-Masri, cited above, § 196; Naumenko v. Ukraine, no. 42023/98, § 108, 10 February 2004; and Svinarenko and Slyadnev, cited above, § 114). 160. In order to determine whether the threshold of severity has been reached, the Court also takes other factors into consideration, in particular: (a) The purpose for which the ill-treatment was inflicted, together with the intention or motivation behind it (see Bouyid, cited above, § 86), although the absence of an intention to humiliate or debase the victim cannot conclusively rule out its characterisation as “degrading” and therefore prohibited by Article 3 (see, among other authorities, V. v. the United Kingdom [GC], no. 24888/94, § 71, ECHR 1999 ‑ IX; Peers v. Greece, no. 28524/95, §§ 68 and 74, ECHR 2001 ‑ III; Price, cited above, § 24; and Svinarenko and Slyadnev, cited above, § 114). (b) The context in which the ill-treatment was inflicted, such as an atmosphere of heightened tension and emotions (see Bouyid, cited above, § 86). (c) Whether the victim is in a vulnerable situation, which is normally the case for persons deprived of their liberty (see, in respect of police custody, Salman v. Turkey [GC], no. 21986/93, § 99, ECHR 2000 ‑ VII, and Bouyid, cited above, § 83 in fine ), but there is an inevitable element of suffering and humiliation involved in custodial measures and this as such, in itself, will not entail a violation of Article 3. Nevertheless, under this provision the State must ensure that a person is detained in conditions which are compatible with respect for his human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured (see Kudła v. Poland [GC], no. 30210/96, §§ 92-94, ECHR 2000 ‑ XI, and Rahimi v. Greece, no. 8687/08, § 60, 5 April 2011). (b) Protection of vulnerable persons and detention of potential immigrants 161. The Court would emphasise that Article 3 taken in conjunction with Article 1 of the Convention must enable effective protection to be provided, particularly to vulnerable members of society, and should include reasonable measures to prevent ill-treatment of which the authorities have or ought to have knowledge (see Z. and Others v. the United Kingdom [GC], no. 29392/95, § 73, ECHR 2001-V, and Mubilanzila Mayeka and Kaniki Mitunga v. Belgium, no. 13178/03, § 53, ECHR 2006-XI). In this connection, the Court must examine whether or not the impugned regulations and practices, and in particular the manner in which they were implemented in the instant case, were defective to the point of constituting a violation of the respondent State’s positive obligations under Article 3 of the Convention (see Mubilanzila Mayeka et Kaniki Mitunga, cited above, § 54, and Rahimi, cited above, § 62). 162. While States are entitled to detain potential immigrants under their “undeniable ... right to control aliens’ entry into and residence in their territory” (see Amuur, cited above, § 41), this right must be exercised in accordance with the provisions of the Convention (see Mahdid and Haddar v. Austria (dec.), no. 74762/01, 8 December 2005; Kanagaratnam and Others v. Belgium, no. 15297/09, § 80, 13 December 2011; and Sharifi and Others v. Italy and Greece, no. 16643/09, § 188, 21 October 2014). The Court must have regard to the particular situation of these persons when reviewing the manner in which the detention order was implemented against the yardstick of the Convention provisions (see Riad and Idiab v. Belgium, nos. 29787/03 and 29810/03, § 100, 24 January 2008; M.S.S. v. Belgium and Greece, cited above, § 217; and Rahimi, cited above, § 61). (c) Conditions of detention in general and prison overcrowding in particular 163. When assessing conditions of detention, account has to be taken of the cumulative effects of these conditions, as well as of specific allegations made by the applicant (see Dougoz v. Greece, no. 40907/98, § 46, ECHR 2001-II). In particular, the length of the period during which the applicant was detained in the impugned conditions will be a major factor (see Kalashnikov v. Russia no. 47095/99, § 102, ECHR 2002-VI; Kehayov v. Bulgaria, no. 41035/98, § 64, 18 January 2005; Alver v. Estonia, no. 64812/01, § 50, 8 November 2005; and Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, § 142, 10 January 2012). 164. Where overcrowding reaches a certain level, the lack of space in an institution may constitute the key factor to be taken into account in assessing the conformity of a given situation with Article 3 (see, in respect of prisons, Karalevičius v. Lithuania, no. 53254/99, § 39, 7 April 2005). Extreme lack of space in prison cells weighs heavily as an aspect to be taken into account for the purpose of establishing whether the impugned detention conditions were “degrading” within the meaning of Article 3 of the Convention (see Mursič v. Croatia [GC], no. 7334/13, § 104, 20 October 2016). 165. Thus, in examining cases of severe overcrowding, the Court has found that this aspect sufficed in itself to entail a violation of Article 3 of the Convention. As a general rule, although the space considered desirable by the CPT for collective cells is 4 sq. m, the personal space available to the applicants in the relevant cases was less than 3 sq. m (see Kadikis v. Latvia, no. 62393/00, § 55, 4 May 2006; Andrey Frolov v. Russia, no. 205/02, §§ 47-49, 29 March 2007; Kantyrev v. Russia, no. 37213/02, §§ 50-51, 21 June 2007; Sulejmanovic v. Italy, no. 22635/03, § 43, 16 July 2009; Ananyev and Others, cited above, §§ 144-45; and Torreggiani and Others v. Italy, nos. 43517/09, 46882/09, 55400/09, 57875/09, 61535/09, 35315/10 and 37818/10, § 68, 8 January 2013). 166. The Court has recently confirmed that the requirement of 3 sq. m of floor surface per detainee (including space occupied by furniture but not counting the in-cell sanitary facility) in multi-occupancy accommodation should be maintained as the relevant minimum standard for its assessment under Article 3 of the Convention (see Mursič, cited above, §§ 110 and 114). It also stated that a weighty but not irrebuttable presumption of a violation of Article 3 arose when the personal space available to a detainee fell below 3 sq. m in multi-occupancy accommodation. The presumption could be rebutted in particular by demonstrating that the cumulative effects of the other aspects of the conditions of detention compensated for the scarce allocation of personal space. In that connection the Court takes into account such factors as the length and extent of the restriction, the degree of freedom of movement and the adequacy of out-of-cell activities, as well as whether or not the conditions of detention in the particular facility are generally decent (ibid., §§ 122-38). 167. However, in cases where the overcrowding was not significant enough to raise, in itself, an issue under Article 3, the Court has noted that other aspects of detention conditions had to be taken into account in examining compliance with that provision. Those aspects include the possibility of using toilets with respect for privacy, ventilation, access to natural air and light, quality of heating and compliance with basic hygiene requirements (see also the points set out in the European Prison Rules adopted by the Committee of Ministers, as cited in paragraph 32 of the judgment in Torreggiani and Others, cited above). As the Court found in Mursič (cited above, § 139), in cases where a prison cell measuring in the range of 3 to 4 sq. m of personal space per inmate is at issue, the space factor remains a weighty consideration in the Court’s assessment of the adequacy of the conditions of detention. Thus, in such cases, the Court has found a violation of Article 3 where the lack of space went together with other poor material conditions of detention such as: a lack of ventilation and light (see Torreggiani and Others, cited above, § 69; see also Babushkin v. Russia, no. 67253/01, § 44, 18 October 2007; Vlasov v. Russia, no. 78146/01, § 84, 12 June 2008; and Moiseyev v. Russia, no. 62936/00, §§ 124-27, 9 October 2008); limited access to outdoor exercise (see István Gábor Kovács v. Hungary, no. 15707/10, § 26, 17 January 2012) or a total lack of privacy in the cell (see Novoselov v. Russia, no. 66460/01, §§ 32 and 40-43, 2 June 2005; Khudoyorov v. Russia, no. 6847/02, §§ 106-07, ECHR 2005-X (extracts); and Belevitskiy v. Russia, no. 72967/01, §§ 73-79, 1 March 2007). (d) Evidence of ill-treatment 168. Allegations of ill-treatment must be supported by appropriate evidence. To assess this evidence, the Court adopts the standard of proof “beyond reasonable doubt” and such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Ireland v. the United Kingdom, cited above, § 161 in fine; Labita, cited above, § 121; Jalloh, cited above, § 67; Ramirez Sanchez v. France [GC], no. 59450/00, § 117, ECHR 2006 ‑ IX; Gäfgen, cited above, § 92; and Bouyid, cited above, § 82). 169. Even if there is no evidence of actual bodily injury or intense physical or mental suffering, where treatment humiliates or debases an individual, showing a lack of respect for or diminishing his or her human dignity, or arouses feelings of fear, anguish or inferiority capable of breaking an individual’s moral and physical resistance, it may be characterised as degrading and thus fall within Article 3 (see, among other authorities, Gäfgen, cited above, § 89; Vasyukov v. Russia, no. 2974/05, § 59, 5 April 2011; Georgia v. Russia (I), cited above, § 192; and Svinarenko and Slyadnev, cited above, § 114). It may well suffice for the victim to be humiliated in his own eyes, even if not in the eyes of others (see, among other authorities, Tyrer v. the United Kingdom, 25 April 1978, § 32, Series A no. 26; M.S.S. v. Belgium and Greece, cited above, § 220; and Bouyid, cited above, § 87). 2. Application of the above-mentioned principles in cases comparable to that of the applicants 170. The Court has already had occasion to apply the above ‑ mentioned principles to cases that are comparable to that of the applicants, concerning in particular the conditions in which would-be immigrants and asylum-seekers were held in reception or detention centres. Two of those cases have been examined by the Grand Chamber. 171. In its judgment in M.S.S. v. Belgium and Greece (cited above, §§ 223-34), the Grand Chamber examined the detention of an Afghan asylum-seeker at Athens international airport for four days in June 2009 and for one week in August 2009. It found that there had been a violation of Article 3 of the Convention, referring to cases of ill-treatment by police officers reported by the CPT and to the conditions of detention as described by a number of international organisations and regarded as “unacceptable”. In particular, the detainees had been obliged to drink water from the toilets; there were 145 detainees in a 110 sq. m space; there was only one bed for fourteen to seventeen people; there was a lack of sufficient ventilation and the cells were unbearably hot; detainees’ access to the toilets was severely restricted and they had to urinate in plastic bottles; there was no soap or toilet paper in any sector; sanitary facilities were dirty and had no doors; and detainees were deprived of outdoor exercise. 172. The case of Tarakhel v. Switzerland ([GC], no. 29217/12, §§ 93 ‑ 122, ECHR 2014) concerned eight Afghan migrants who alleged that in the event of their removal to Italy they would have been victims of inhuman or degrading treatment relating to the existence of “systemic deficiencies” in the reception facilities for asylum-seekers in that country. The Grand Chamber examined the general reception system for asylum-seekers in Italy and noted deficiencies in terms of the insufficient size of reception centres and the poor living conditions in the facilities available. In particular, there were long waiting lists for access to the centres, and the capacity of the facilities did not seem capable of absorbing the greater part of the demand for accommodation. While taking the view that the situation in Italy could “in no way be compared to the situation in Greece at the time of the M.S.S. judgment” and that it did not in itself act as a bar to all removals of asylum-seekers to that country, the Court nevertheless took the view that “the possibility that a significant number of asylum seekers [might] be left without accommodation or accommodated in overcrowded facilities without any privacy, or even in insalubrious or violent conditions, [could] not be dismissed as unfounded”. Having regard to the fact that the applicants were two adults accompanied by their six minor children, the Court found that “were the applicants to be returned to Italy without the Swiss authorities having first obtained individual guarantees from the Italian authorities that the applicants would be taken charge of in a manner adapted to the age of the children and that the family would be kept together, there would be a violation of Article 3 of the Convention”. 173. The conditions of detention of migrants or travellers have also given rise to a number of Chamber judgments. In S.D. v. Greece (no. 53541/07, §§ 49-54, 11 June 2009) the Court found that to confine an asylum-seeker for two months in a prefabricated unit, without any possibility of going outside or using the telephone, and without having clean sheets or sufficient toiletries, constituted degrading treatment for the purposes of Article 3 of the Convention. Similarly, a detention period of six days, in a confined space, without any possibility of exercise or any leisure area, and where the detainees slept on dirty mattresses and had no free access to toilets, was unacceptable under Article 3. 174. Tabesh v. Greece (no. 8256/07, §§ 38-44, 26 November 2009) concerned the detention of an asylum-seeker for three months, pending the application of an administrative measure, on police premises without any possibility of leisure activity or appropriate meals. The Court held that this constituted degrading treatment. It reached a similar conclusion in A.A. v. Greece (no. 12186/08, §§ 57-65, 22 July 2010), which concerned the three-month detention of an asylum-seeker in an overcrowded facility where the cleanliness and conditions of hygiene were atrocious, where no facility was available for leisure or meals, where the poor state of repair of the bathrooms made them virtually unusable and where the detainees had to sleep in dirty and cramped conditions (see, to the same effect, C.D. and Others v. Greece, nos. 33441/10, 33468/10 and 33476/10, §§ 49-54, 19 December 2013, concerning the detention of twelve migrants for periods of between forty-five days and two months and twenty-five days; F.H. v. Greece, no. 78456/11, §§ 98-103, 31 July 2014, concerning the detention pending removal of an Iranian migrant in four detention centres for a total duration of six months; and Ha.A. v. Greece, no. 58387/11, §§ 26-31, 21 April 2016, where the Court noted that reliable sources had reported on the severe lack of space, 100 detainees having been “crammed” into an area of 35 sq. m.; see also Efremidze v. Greece, no. 33225/08, §§ 36 ‑ 42, 21 June 2011; R.U. v. Greece, no. 2237/08, §§ 62-64, 7 June 2011; A.F. v. Greece, no. 53709/11, §§ 71-80, 13 June 2013; and B.M. v. Greece, no. 53608/11, §§ 67-70, 19 December 2013). 175. The case of Rahimi (cited above, §§ 63-86) concerned the detention pending deportation of an Afghan migrant, who at the time was 15 years old, in a centre for illegal immigrants at Pagani, on the island of Lesbos. The Court found a violation of Article 3 of the Convention, observing as follows: that the applicant was an unaccompanied minor; that his allegations about serious problems of overcrowding (number of detainees four times higher than capacity), poor hygiene and lack of contact with the outside world had been corroborated by the reports of the Greek Ombudsman, the CPT and a number of international organisations; that even though the applicant had only been detained for a very limited period of two days, on account of his age and personal situation he was extremely vulnerable; and that the detention conditions were so severe that they undermined the very essence of human dignity. 176. It should also be pointed out that in the case of T. and A. v. Turkey (cited above, §§ 91-99) the Court found that the detention of a British national at Istanbul airport for three days was incompatible with Article 3 of the Convention. The Court observed that the first applicant had been confined in personal space of at most 2.3 sq. m and as little as 1.23 sq. m, and that there was only one sofa-bed on which the inmates took turns to sleep. 177. The Court, however, found no violation of Article 3 of the Convention in Aarabi v. Greece (no. 39766/09, §§ 42-51, 2 April 2015), concerning the detention pending removal of a Lebanese migrant aged 17 and ten months at the relevant time, which had taken place: from 11 to 13 July 2009 on coastguard premises on the island of Chios; from 14 to 26 July 2009 at the Mersinidi detention centre; from 27 to 30 July 2009 at the Tychero detention centre; and on 30 and 31 July 2009 on police premises in Thessaloniki. The Court noted in particular that the Greek authorities could not reasonably have known that the applicant was a minor at the time of his arrest and therefore his complaints had necessarily been examined as if they had been raised by an adult; that the periods of detention in the Tychero centre and on the coastguard and police premises had lasted only two or three days, and that no other aggravating factor had been put forward by the applicant (there were no CPT findings about the Tychero detention centre); that the applicant had spent thirteen days in the Mersinidi detention centre, in respect of which there were no reports from national or international bodies for the relevant period; that this centre had been mentioned in an Amnesty International report covering a subsequent period, referring to a lack of toiletries and the fact that some inmates slept on mattresses placed on the bare floor, without however reporting any general hygiene problems; that even though the Government had acknowledged that Mersinidi had exceeded its accommodation capacity, there was no evidence that the applicant had had less than 3 sq. m of personal space in his cell; that on 26 July 2009 the authorities had decided to transfer a certain number of individuals, including the applicant, to another detention centre, thus showing that they had sought in a timely manner to improve the detention conditions endure by the applicant; and that following his visit to Greece in October 2010, the UN Special Rapporteur on torture and other cruel, inhuman or degrading punishment or treatment had described the detention conditions in Mersinidi as adequate. 3. Application of those principles in the present case (a) The existence of a humanitarian emergency and its consequences 178. The Court finds it necessary to begin by addressing the Government’s argument that it should take due account of the context of humanitarian emergency in which the events in question had taken place (see paragraph 151 above). 179. In this connection the Court, like the Chamber, cannot but take note of the major migration crisis that unfolded in 2011 following events related to the “Arab Spring”. As the PACE Ad Hoc Sub-Committee noted on 30 September 2011 (see, in particular, §§ 9-13 of its report, cited in paragraph 49 above), following uprisings in Tunisia and Libya there was a fresh wave of arrivals by boat, as a result of which Italy declared a state of humanitarian emergency on the island of Lampedusa and appealed for solidarity from the member States of the European Union. By 21 September 2011, when the applicants were on the island, 55,298 persons had arrived there by sea. As indicated by the Government (see paragraph 150 above), between 12 February and 31 December 2011, 51,573 nationals of third States (of whom about 46,000 were men and 26,000 were Tunisian nationals) landed on the islands of Lampedusa and Linosa. The arrival en masse of North African migrants undoubtedly created organisational, logistical and structural difficulties for the Italian authorities in view of the combination of requirements to be met, as they had to rescue certain vessels at sea, to receive and accommodate individuals arriving on Italian soil, and to take care of those in particularly vulnerable situations. The Court would observe in this connection that according to the data supplied by the Government (ibid.) and not disputed by the applicants, there were some 3,000 women and 3,000 children among the migrants who arrived during the period in question. 180. In view of the significant number of factors, whether political, economic or social, which gave rise to such a major migration crisis and taking account of the challenges facing the Italian authorities, the Court cannot agree with the applicants’ view (see paragraph 140 above) that the situation in 2011 was not exceptional. An excessive burden might be imposed on the national authorities if they were required to interpret those numerous factors precisely and to foresee the scale and timeframe of an influx of migrants. In that connection it should be observed that the significant increase of arrivals by sea in 2011 compared to previous years was confirmed by the report of the PACE Ad Hoc Sub-Committee. According to that report, 15,527, 18,047, 11,749 and 31,252 migrants had arrived on Lampedusa in 2005, 2006, 2007 and 2008 respectively. The number of arrivals had diminished in 2009 and 2010, with, respectively, 2,947 and 459 individuals (see, in particular, §§ 9 and 10 of the report, cited in paragraph 49 above). That reduction had been significant enough for the authorities to close the reception centres on Lampedusa (see, in particular, ibid., §§ 10 and 51). When those data are compared with the figures for the period from 12 February to 31 December 2011 (see paragraphs 150 and 179 above), which saw 51,573 nationals from third countries arriving on Lampedusa and Linosa, it can be appreciated that the year 2011 was marked by a very significant increase in the number of migrants arriving by sea from North African countries on the Italian islands to the south of Sicily. 181. Neither can the Court criticise, in itself, the decision to concentrate the initial reception of the migrants on Lampedusa. As a result of its geographical situation, that was where most rudimentary vessels would arrive and it was often necessary to carry out rescues at sea around the island in order to protect the life and health of the migrants. It was therefore not unreasonable, at the initial stage, to transfer the survivors from the Mediterranean crossing to the closest reception facility, namely the CSPA at Contrada Imbriacola. 182. Admittedly, as noted by the Chamber, the accommodation capacity available in Lampedusa was both insufficient to receive such a large number of new arrivals and ill-suited to stays of several days. It is also true that in addition to that general situation there were some specific problems just after the applicants’ arrival. On 20 September a revolt broke out among the migrants being held at the Contrada Imbriacola CSPA and the premises were gutted by an arson attack (see paragraphs 14 and 26 above). On the next day, about 1,800 migrants started protest marches through the island’s streets (see paragraph 14 above) and clashes occurred in the port of Lampedusa between the local community and a group of aliens threatening to explode gas canisters. Acts of self-harm and vandalism were also perpetrated (see paragraphs 26 and 28 above). Those incidents contributed to exacerbating the existing difficulties and creating a climate of heightened tension. 183. The foregoing details show that the State was confronted with many problems as a result of the arrival of exceptionally high numbers of migrants and that during this period the Italian authorities were burdened with a large variety of tasks, as they had to ensure the welfare of both the migrants and the local people and to maintain law and order. 184. That being said, the Court can only reiterate its well-established case-law to the effect that, having regard to the absolute character of Article 3, an increasing influx of migrants cannot absolve a State of its obligations under that provision (see M.S.S. v. Belgium and Greece, cited above, § 223; see also Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, §§ 122 and 176, ECHR 2012), which requires that persons deprived of their liberty must be guaranteed conditions that are compatible with respect for their human dignity. In this connection the Court would also point out that in accordance with its case-law as cited in paragraph 160 above, even treatment which is inflicted without the intention of humiliating or degrading the victim, and which stems, for example, from objective difficulties related to a migrant crisis, may entail a violation of Article 3 of the Convention. 185. While the constraints inherent in such a crisis cannot, in themselves, be used to justify a breach of Article 3, the Court is of the view that it would certainly be artificial to examine the facts of the case without considering the general context in which those facts arose. In its assessment, the Court will thus bear in mind, together with other factors, that the undeniable difficulties and inconveniences endured by the applicants stemmed to a significant extent from the situation of extreme difficulty confronting the Italian authorities at the relevant time. 186. Like the Chamber, the Court is of the view that, under Article 3 of the Convention, it is appropriate to examine separately the two situations at issue, namely the reception conditions in the Contrada Imbriacola CSPA, on the one hand, and those on the ships Vincent and Audace, on the other. (b) Conditions in the Contrada Imbriacola CSPA 187. The Court would begin by observing that it is called upon to determine whether the conditions of the applicants’ detention in the Lampedusa CSPA can be regarded as “inhuman or degrading treatment” within the meaning of Article 3 of the Convention. For that purpose a number of factors must be taken into consideration. 188. First, at the time of the applicants’ arrival, the conditions in the CSPA were far from ideal. The applicants’ allegations about the general state of the centre, and in particular the problems of overcrowding, poor hygiene and lack of contact with the outside world, are confirmed by the reports of the Senate’s Special Commission and Amnesty International (see paragraphs 35 and 50 above). The Special Commission, an institution of the respondent State itself, reported that rooms accommodating up to twenty-five persons contained four-tier bunk beds placed side by side, that foam-rubber mattresses, many of them torn, were placed along corridors and outside landings, and that in many rooms there were no light bulbs. In toilets and showers privacy was ensured only by cloth or plastic curtains placed in an improvised manner, water pipes were sometimes blocked or leaking, the smell from the toilets pervaded the whole area, and rainwater carried dampness and dirt into the living quarters. Amnesty International also reported on severe overcrowding, a general lack of hygiene and toilets which were smelly and unusable. 189. The Chamber rightly emphasised these problems. It cannot, however, be overlooked that the Senate’s Special Commission visited the Contrada Imbriacola CSPA on 11 February 2009 (see paragraph 35 above), about two years and seven months before the applicants’ arrival. The Court does not find it established, therefore, that the conditions described by the Special Commission still obtained in September 2011 at the time of the applicants’ arrival. 190. Information from a later date is available in a report by the PACE Ad Hoc Sub-Committee, which carried out a fact-finding mission on Lampedusa on 23 and 24 May 2011, less than four months before the applicants’ arrival (see paragraph 49 above). It is true that the Ad Hoc Sub ‑ Committee expressed its concerns about the conditions of hygiene as a result of overcrowding in the CSPA, observing that the facility was ill ‑ suited to stays of several days (see, in particular, §§ 30 and 48 of the report). That report nevertheless indicates the following points in particular (ibid., §§ 28, 29, 32 and 47): (a) The associations participating in the “Praesidium Project” (UNHCR, the IOM, the Red Cross and Save the Children) were authorised to maintain a permanent presence inside the reception centre, making interpreters and cultural mediators available. (b) All those participants were working together on good terms, endeavouring to coordinate their efforts, with the shared priority of saving lives in sea rescue operations, doing everything possible to receive new arrivals in decent conditions and then assisting in rapidly transferring them to centres elsewhere in Italy. (c) Reception conditions were decent although very basic (while rooms were full of mattresses placed side by side directly on the ground, the buildings – prefabricated units – were well ventilated because the rooms had windows; and the sanitary facilities appeared sufficient when the centre was operating at its normal capacity). (d) Anyone wishing to be examined by a doctor could be, and no request to that effect was refused. (e) A regular inspection of the sanitary facilities and food at the centres was carried out by the Head of the Palermo Health Unit. 191. In the light of that information the Court takes the view that the conditions in the Lampedusa CSPA cannot be compared to those which, in the judgments cited in paragraphs 171 and 173-75 above, justified finding a violation of Article 3 of the Convention. 192. As to the alleged overcrowding in the CSPA, the Court observes that, according to the applicants, the maximum capacity in the Contrada Imbriacola facility was 804 (see paragraph 142 above), whereas the Government submitted that it could accommodate up to about 1,000 (see paragraph 153 above). The applicants added that on 16, 17, 18, 19 and 20 September, the centre housed 1,357, 1,325, 1,399, 1,265 and 1,017 migrants respectively. Those figures do not quite correspond to the indications provided by the Government, which at the hearing before the Court stated that at the time of the applicants’ stay there had been 917 migrants in the Contrada Imbriacola CSPA. 193. In those circumstances, the Court is not in a position to determine the precise number of persons being held there at the material time (see, mutatis mutandis, Sharifi and Others, cited above, § 189). It would merely observe that if the applicants are correct in their indication of the number of persons held and the capacity of the CSPA, the centre must have exceeded its limit (804 persons) by a percentage of between 15% and 75%. This means that the applicants must clearly have had to cope with the problems resulting from a degree of overcrowding. However, their situation cannot be compared to that of individuals detained in a prison, a cell or a confined space (see, in particular, the case-law cited in paragraphs 163-67, 173 and 176 above). The applicants did not dispute the Government’s assertions that the migrants held in the Contrada Imbriacola CSPA could move around freely within the confines of the facility, communicate by telephone with the outside world, make purchases and contact representatives of humanitarian organisations and lawyers (see paragraph 153 above). Even though the number of square metres per person in the centre’s rooms has not been established, the Court finds that the freedom of movement enjoyed by the applicants in the CSPA must have alleviated in part, or even to a significant extent, the constraints caused by the fact that the centre’s maximum capacity was exceeded. 194. As the Chamber rightly pointed out, when they were held at the Lampedusa CSPA, the applicants were weakened physically and psychologically because they had just made a dangerous crossing of the Mediterranean. Nevertheless, the applicants, who were not asylum ‑ seekers, did not have the specific vulnerability inherent in that status, and did not claim to have endured traumatic experiences in their country of origin (contrast M.S.S. v. Belgium and Greece, cited above, § 232). In addition, they belonged neither to the category of elderly persons nor to that of minors (on the subject of which, see, among other authorities, Popov v. France, nos. 39472/07 and 39474/07, §§ 90-103, 19 January 2012). At the time of the events they were aged between 23 and 28 and did not claim to be suffering from any particular medical condition. Nor did they complain of any lack of medical care in the centre. 195. The Court further notes that the applicants were placed in the Contrada Imbriacola CSPA on 17 and 18 September 2011 respectively (see paragraphs 11 and 12 above), and that they were held there until 20 September, when, following a fire, they were transferred to a sports complex on Lampedusa (see paragraph 14 above). Their stay in that facility thus lasted three and four days respectively. As the Chamber pointed out, the applicants thus stayed in the CSPA for only a short period. Their limited contact with the outside world could not therefore have had serious consequences for their personal situations (see, mutatis mutandis, Rahimi, cited above, § 84). 196. In certain cases the Court has found violations of Article 3 in spite of the short duration of the deprivation of liberty in question (see, in particular, the three judgments cited by the applicants as referred to in paragraph 143 above). However, the present case can be distinguished in various respects from those judgments. In particular, in the Brega judgment (cited above, §§ 39-43), a forty-eight-hour period of detention had been combined with wrongful arrest, a renal colic attack subsequently suffered by the applicant, a delay in medical assistance, a lack of bedding, and a low temperature in the cell. In the case of T. and A. v. Turkey (cited above, §§ 91-99), the personal space available to the first applicant for the three days of her detention had been limited (between 2.3 and 1.23 sq. m) and there had been only one sofa-bed on which the inmates took turns to sleep. Lastly, the Gavrilovici judgment (cited above, §§ 41-44) concerned a longer period of detention than that endured by the present applicants (five days), with the aggravating factors that the four inmates were obliged to sleep on a wooden platform about 1.8 m wide, that there was no heating or toilet in the cell and that the cells in the Ştefan-Vodă police station had subsequently been closed because they were held to be incompatible with any form of detention. The Court also has regard to the cases of Koktysh v. Ukraine (no. 43707/07, §§ 22 and 91-95, 10 December 2009), concerning detention periods of ten and four days in a very overcrowded cell, where prisoners had to take it in turns to sleep, in a prison where the conditions had been described as “atrocious”, and Căşuneanu v. Romania (no. 22018/10, §§ 60 ‑ 62, 16 April 2013), concerning a five-day period of detention in circumstances of overcrowding, poor hygiene, dirtiness, and a lack of privacy and outdoor exercise. 197. That being said, the Court cannot overlook the fact, pointed out both by the PACE Ad Hoc Sub-Committee and by Amnesty International (see paragraphs 49-50 above), that the Lampedusa CSPA was not suited to stays of more than a few days. As that facility was designed more as a transit centre than a detention centre, the authorities were under an obligation to take steps to find other satisfactory reception facilities with enough space and to transfer a sufficient number of migrants to those facilities. However, in the present case the Court cannot address the question whether that obligation was fulfilled, because only two days after the arrival of the last two applicants, on 20 September 2011, a violent revolt broke out among the migrants and the Lampedusa CSPA was gutted by fire (see paragraph 14 above). It cannot be presumed that the Italian authorities remained inactive and negligent, nor can it be maintained that the transfer of the migrants should have been organised and carried out in less than two or three days. In this connection it is noteworthy that in the Aarabi case (cited above, § 50) the Court found that the decision of the domestic authorities to transfer a certain number of individuals, including the applicant, to another detention centre had demonstrated their willingness to improve the applicant’s conditions of detention in a timely manner. The relevant decision in Aarabi, however, had been taken thirteen days after the applicant’s placement in the Mersinidi centre. 198. The Court further observes that the applicants did not claim that they had been deliberately ill-treated by the authorities in the centre, that the food or water had been insufficient or that the climate at the time had affected them negatively when they had had to sleep outside. 199. Having regard to all the factors set out above, taken as a whole, and in the light of the specific circumstances of the applicants’ case, the Court finds that the treatment they complained of does not exceed the level of severity required for it to fall within Article 3 of the Convention. 200. It follows, in the present case, that the conditions in which the applicants were held at the Contrada Imbriacola CSPA did not constitute inhuman or degrading treatment and that there has therefore been no violation of Article 3 of the Convention. 201. Finally, the Court has also taken note of the Government’s statements (see paragraph 149 above) that significant amounts have been invested in order to set up new reception facilities, and that during his visit on 23 and 24 June 2013 the UNHCR representative for Southern Europe noted with satisfaction the steps taken by the national and local authorities in order to improve the general situation on the island of Lampedusa (see, mutatis mutandis, Aarabi, § 50 in fine ). (c) The conditions on the ships Vincent and Audace 202. As regards the conditions on the two ships, the Court notes that the first applicant was placed on the Vincent, with some 190 others, while the second and third applicants were transferred to the Audace, which held about 150 persons (see paragraph 15 above). Their confinement on the ships began on 22 September 2011 and ended on 29 or 27 September 2011, depending on the applicant; it thus lasted about seven days for the first applicant and about five days for the second and third applicants (see paragraph 17 above). 203. The Court has examined the applicants’ allegations that, on board the ships, they were grouped together in an overcrowded lounge area, that they could only go outside onto small decks for a few minutes every day, and that they had to sleep on the floor and wait several hours to use the toilets; also that they were not allowed access to the cabins, that food was distributed by being thrown on the floor, that they were occasionally insulted and ill-treated by the police and that they did not receive any information from the authorities (see paragraphs 16, 145 and 146 above). 204. The Court notes that those allegations are not based on any objective reports, merely their own testimony. The applicants argued that the absence of any corroborating material could be explained by the nature of the ships, which they described as isolated and inaccessible places, and that in those circumstances it was for the Government to provide evidence that the requirements of Article 3 had been met (see paragraph 147 above). 205. On the latter point, the Court has held that where an individual is taken into police custody in good health but is found to be injured at the time of release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused, failing which a clear issue arises under Article 3 of the Convention (see Gäfgen, cited above, § 92; compare also Tomasi v. France, 27 August 1992, § 110, Series A no. 241 ‑ A; Ribitsch v. Austria, 4 December 1995, § 34, Series A no. 336; Aksoy v. Turkey, 18 December 1996, § 61, Reports 1996-VI; and Selmouni, cited above, § 87). In addition, where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, strong presumptions of fact will arise in respect of injuries occurring during such detention. The burden of proof is then on the Government to provide a satisfactory and convincing explanation by producing evidence establishing facts which cast doubt on the account of events given by the victim (see Salman, cited above, § 100; Rivas v. France, no. 59584/00, § 38, 1 April 2004; Turan Çakır v. Belgium, no. 44256/06, § 54, 10 March 2009; and Mete and Others v. Turkey, no. 294/08, § 112, 4 October 2012). In the absence of any such explanation, the Court can draw inferences which may be unfavourable for the Government (see, among other authorities, El ‑ Masri, cited above, § 152). This is justified by the fact that persons in the hands of the police or a comparable authority are in a vulnerable position and the authorities are under a duty to protect them (see, Bouyid, cited above, §§ 83-84; see also, in respect of persons in police custody, Salman, cited above, § 99). 206. In the light of that case-law, the burden of proof in this area may be reversed where allegations of ill-treatment at the hands of the police or other similar agents of the State are arguable and based on corroborating factors, such as the existence of injuries of unknown and unexplained origin. The Court observes, however, that such factors are totally absent in the present case, as the applicants have failed to produce any documents certifying any signs or after-effects of the alleged ill-treatment or any third-party testimony confirming their version of the facts. 207. In any event, the Court cannot but attach decisive weight to the fact that the Government adduced before it a judicial decision contradicting the applicants’ account, namely that of the Palermo preliminary investigations judge dated 1 June 2012. That decision indicates (see paragraph 27 above) that the migrants were provided with medical assistance, hot water, electricity, meals and hot drinks. In addition, according to a press agency note dated 25 September 2011 and cited in the decision, a member of parliament, T.R., accompanied by the deputy chief of police and by police officers, boarded the vessels in Palermo harbour and spoke to some of the migrants. The MP reported that the migrants were in good health, that they had assistance and that they were sleeping in cabins with bedding or on reclining seats. They had access to prayer rooms, the Civil Protection Authority had made clothing available to them and the food was satisfactory (pasta, chicken, vegetables, fruit and water). 208. The Court takes the view that there is no reason for it to question the impartiality of an independent judge such as the Palermo preliminary investigations judge. To the extent that the applicants criticised the judge’s decision on the ground that it was based on the statements of an MP to the press and not reiterated at the hearing, and that the police had been present during the MP’s visit (see paragraph 147 above), the Court reiterates that where allegations are made under Article 3 of the Convention it is prepared to conduct a thorough examination of the findings of the national courts, and that in doing so it may take account of the quality of the domestic proceedings and any possible flaws in the decision-making process (see Denisenko and Bogdanchikov v. Russia, no. 3811/02, § 83, 12 February 2009, and Bouyid, cited above, § 85). Nevertheless, sound evidence alone, not mere hypothetical speculation, is necessary to call into question the assessment of the facts by an independent domestic court. The applicants have not, however, produced any evidence capable of showing that the press inaccurately reported the MP’s statements. In addition, the police presence in the detention centre cannot be regarded as unusual and cannot, in itself, give rise to objectively justified doubts as to the reliability of the results of a visit to or inspection of such a facility. The Court would indicate its agreement with the Chamber’s findings that the fact that the MP was accompanied by the deputy chief of police and police officers did not in itself mean that the MP’s independence or the veracity of his account had to be called into question. 209. As to the applicants’ allegations about the appeal made to the Italian Government by Médecins sans Frontières on 28 September 2011 (see paragraph 147 above), the Court notes that on that date the return of the migrants who had been held on the ships was already in progress. The second and third applicants had already boarded planes for Tunis, while the first applicant was to do so the following day (29 September 2011 – see paragraph 17 above). Even if the Government had responded to the appeal from Médecins sans Frontières as soon as possible, the inspection would have taken place when the ships were already being vacated. It could not therefore have realistically provided any useful evidence by which to assess the conditions of accommodation and, in particular, the existence of a serious overcrowding problem as described by the applicants. 210. Having regard to the foregoing, it cannot be established that the accommodation conditions on the ships reached the minimum level of severity required for treatment to fall within Article 3 of the Convention. The applicants’ allegations as to the lack of relevant information or explanations from the authorities and the point that their confinement on the ships followed on from their negative experience in the Contrada Imbriacola CSPA (see paragraph 146 above) cannot alter that finding. 211. It follows that the conditions in which the applicants were held on the ships Vincent and Audace did not constitute inhuman or degrading treatment. There has accordingly been no violation of Article 3 of the Convention under this head. VI. ALLEGED VIOLATION OF ARTICLE 4 OF PROTOCOL No. 4 TO THE CONVENTION 212. The applicants submitted that they had been victims of collective expulsion. They relied on Article 4 of Protocol No. 4, which reads as follows: “Collective expulsion of aliens is prohibited.” A. Chamber judgment 213. The Chamber noted that the applicants had been issued with individual refusal-of-entry orders, but that those orders nevertheless contained identical wording and the only differences were to be found in their personal data. Even though the applicants had undergone an identity check, this was not sufficient in itself to rule out the existence of a collective expulsion within the meaning of Article 4 of Protocol No. 4. In addition, the refusal-of-entry orders did not contain any reference to the personal situations of the applicants and the Government had failed to produce any document capable of proving that individual interviews concerning the specific situation of each applicant had taken place. The Chamber also took account of the fact that a large number of individuals of the same origin, around the time of the events at issue, had been subjected to the same outcome as the applicants. It observed that the agreement between Italy and Tunisia of April 2011, which had not been made public, provided for the return of unlawful migrants from Tunisia through simplified procedures, on the basis of the mere identification by the Tunisian consular authorities of the person concerned. Those elements sufficed for the Chamber to find that the applicants’ expulsion had been collective in nature and that Article 4 of Protocol No. 4 had therefore been breached (see paragraphs 153-58 of the Chamber judgment). B. The parties’ submissions 1. The applicants 214. The applicants complained that they had been expelled collectively solely on the basis of their identification and without any consideration of their individual situations. They observed that immediately after their arrival on Lampedusa, the Italian border authorities had registered their identity and taken their fingerprints. They had subsequently had no oral contact with the authorities in question about their situation; in particular, they had not been interviewed and had not been able to receive assistance from a lawyer or from independent qualified staff until they had boarded the planes to be returned to Tunis. At that point they had been asked to give their identity for the second time and the Tunisian Consul was then present. In those circumstances, the applicants had difficulty understanding at what point in time the Italian authorities could have gathered the information required for a careful assessment of their individual situations. The refusal-of-entry orders did not, moreover, contain any indication of such an assessment; they were standardised documents indicating only their date of birth and nationality and containing a set phrase to the effect that “none of the situations [provided for in] Article 10 § 4 of Legislative Decree no. 286 of 1998 [was] present” (see paragraph 19 above). A number of other Tunisian nationals had suffered the same fate, on the basis of a practice whereby the mere verification of Tunisian nationality sufficed for a simplified “readmission” procedure to be triggered. The ministerial note of 6 April 2011 (see paragraph 37 above) had announced such operations. 215. The applicants alleged that the application of Article 4 of Protocol No. 4 to the migrant crisis, which was currently at the forefront of European political debate, could not be refused on the sole ground that this phenomenon was different from other tragedies of history. In their view, to find otherwise would be tantamount to depriving the most vulnerable persons of protection in the current historic period. 216. As regards the agreement between Italy and Tunisia that had been relied on by the Government (see paragraph 223 below), the applicants were of the view that it did not comply with the safeguards provided for by Article 4 of Protocol No. 4 and had been used to give an appearance of legality to a practice that was in breach of the Convention. Moreover, a violation of Convention rights could not be ruled out on the sole ground that the State’s conduct was compliant with other international commitments. The applicants pointed out that in the case of Sharifi and Others (cited above, § 223), the Court had observed that no form of collective and indiscriminate removal could be justified by reference to the Dublin system. This applied all the more so to the bilateral agreement with Tunisia, which according to the applicants had only been disclosed by the Government at the time of their request for referral to the Grand Chamber (see paragraph 40 above). 217. The applicants observed that they had entered Italian territory and had remained there, deprived of their liberty, for a significant period of time. In international law, therefore, their removal had to be classified as an “expulsion” and not as “non-admission”. The concept of “expulsion” applied not only to aliens who had entered the country legally but extended to those who had crossed the national border illegally, as had in fact been acknowledged by the respondent Government themselves in the case of Hirsi Jamaa and Others (cited above, § 160). 218. The applicants further pointed out that under Italian law, when foreign nationals without the relevant documentation were allowed to enter the territory of the State in order to be given assistance, their removal could take two different legal forms, either “deferred refusal of entry”, ordered by the Chief of Police ( questore ), or “deportation” ( espulsione ), decided by the Prefect and followed by an implementing order of the Chief of Police, confirmed by the Justice of the Peace. If, as argued by the Government (see paragraph 226 below), the formal classification in domestic law were decisive for the application of Article 4 of Protocol No. 4, this would entail the unacceptable conclusion that the national authorities were free to decide on the safeguards enshrined in that provision and to deprive aliens of such protection through the use of “deferred refusal of entry”, a fast-track mechanism offering very few safeguards. 219. In response to the Government’s submission that Tunisia was a “safe country”, the applicants argued that Article 4 of Protocol No. 4 concerned the method of expulsion of a group of individuals and not the consequences that they might suffer in the destination country. It was thus a procedural safeguard providing “protection by anticipation” for the purposes of Article 3 of the Convention, which prohibited removal to a country where the individual might be subjected to proscribed treatment. 220. The applicants submitted that the key issue in the present case was whether an individual interview was necessary prior to their expulsion. They observed in this connection that only two aspects distinguished their case from Hirsi Jamaa and Others (cited above), namely the fact that they had actually been identified and that they had received identical “deferred refusal-of-entry” orders. Even though the similarity between the orders did not, in itself, lead to the conclusion that there had been a collective expulsion, it was an indication to that effect. In addition, in Sharifi and Others (cited above) the Court had found a violation of Article 4 of Protocol No. 4 in respect of one of the applicants who had been expelled (Mr Reza Karimi) even though he had been identified, because there was no evidence that, at the time of the identity check, an interpreter or independent legal adviser had been present, those being indications of an individual interview. Where there was evidence of such an interview, however, the Court had excluded any violation of that provision in the cases of M.A. v. Cyprus (no. 41872/10, ECHR 2013); Sultani v. France (no. 45223/05, ECHR 2007-IV); and Andric v. Sweden ((dec.) no. 45917/99, 23 February 1999). In the applicants’ view, to exclude the need for an individual interview would render meaningless the procedural safeguard of Article 4 of Protocol No. 4, because an expulsion could be justified purely on the basis that the alien’s nationality – that is, the fact of belonging to a group – had been established. 221. The applicants argued that their interpretation of Article 4 of Protocol No. 4 was confirmed by customary international law, by the case ‑ law of the Court of Justice of the European Union (CJEU) – to the effect that aliens had the right to express their view on the legality of their stay (they referred, in particular, to the Khaled Boudjlida and Sophie Mukarubega judgments cited above in paragraphs 42-45) – and by a 2016 report of the Italian Senate’s Special Commission. The Special Commission had criticised a common practice at the Lampedusa CSPA whereby, only a few hours after being rescued at sea, the migrants had been asked to fill in a form offering them the following options to explain why they had come to Italy: for work, family reunification, to escape poverty, to seek asylum or for other reasons. The applicants explained that those who ticked the box “work” would be earmarked for removal on the basis of a “deferred refusal-of-entry”. The Special Commission had recommended in particular that a real interview be conducted, to determine whether the alien needed protection, in the presence of UNHCR workers. 222. At the hearing before the Court, the applicants’ representatives observed that the Government’s allegation that “information sheets” had been filled in for each migrant (see paragraph 224 below) had not been supported by any evidence and could not therefore be upheld. According to those representatives, it would have been pointless for their clients to indicate any reasons they might have wished to put forward in opposition to their return. The representatives also pointed out, however, that the applicants’ individual circumstances did not enable them to rely on international protection or the non-refoulement principle; they were not claiming that they had a right of abode in Italy or that their return had exposed them to a risk of being subjected to inhuman or degrading treatment in Tunisia. 2. The Government 223. The Government alleged that no collective expulsion had taken place. They observed that the applicants had been returned according to the fast-track procedure provided for in the agreement with Tunisia (see paragraphs 36-40 above), which could be regarded as a “readmission” agreement within the meaning of the Return Directive (see paragraph 41 above). They argued that this agreement had contributed to the repression of migrant smuggling, as called for by the United Nations Convention on Transnational Organized Crime. Moreover, Tunisia was a safe country which respected human rights, this being shown by the fact that the applicants had not reported experiencing persecution or violations of their fundamental rights after their return. 224. In the Government’s submission, upon their arrival on Lampedusa all the irregular migrants had been identified by the police in individual interviews with each one, assisted by an interpreter or a cultural mediator. At the hearing before the Court, the Government further stated that “information sheets” containing personal data and any circumstances specific to each migrant had been filled in after the interviews. The forms concerning the applicants had been destroyed, however, during the fire at the Contrada Imbriacola CSPA (see paragraph 14 above). Moreover, photographs had been taken and the migrants’ fingerprints recorded. 225. In the Government’s view, the applicants, like all the other migrants, had definitely been informed of the possibility of lodging an asylum application, but they had simply decided not to make use of that avenue. At the time of the fire, seventy-two other migrants on Lampedusa had in fact expressed their wish to apply for asylum and on 22 September 2011 they had been transferred to the reception centres of Trapani, Caltanissetta and Foggia in order to establish their status. 226. The Government observed that the Chamber had referred to “ refoulement ” (refusal of entry) and to “ expulsion ” (deportation), without pointing out the distinction between the two notions, which in reality corresponded to different procedures in domestic legislation, more specifically under Legislative Decree no. 286 of 1998 (see paragraph 33 above). In particular, “refusal of entry at the border” was a decision by the border guards to turn away aliens arriving at border crossings without papers and without meeting the requirements for admission to Italy. The “deferred refusal-of-entry” procedure, ordered by the Chief of Police ( questore ), applied where an alien had entered the country illegally and had been allowed to stay temporarily to receive protection. Lastly, “deportation” corresponded to a written and reasoned decision whereby the competent administrative or judicial authorities ordered the removal from the country of an alien who did not have, or no longer had, leave to remain in the country. The Italian legal system made no provision for collective expulsion and Article 19 of Legislative Decree no. 286 of 1998 prohibited the return of an alien to a State where he or she might be subjected to persecution. The Government explained that in the present case the applicants had been issued with “refusal-of-entry and removal” orders and had not been subjected to a measure of “expulsion” (i.e., deportation). Therefore, in the Government’s view, it could not have been a “collective expulsion”. 227. The Government further observed that in the present case the refusal-of-entry orders had been individual documents drawn up for each of the applicants and issued after a careful examination of the respective situation. They had been based on the identification of the applicants, as confirmed by the Tunisian Consul in Italy, and the removal had been implemented on the basis of a laissez-passer issued to each of them individually. In the Government’s submission, the meetings with the Tunisian Consul had been individual and effective, as shown by the fact that, following the establishment on those occasions of information about their age or nationality, some of the migrants listed by the Italian authorities had not been removed after all. 228. The respective refusal-of-entry orders, translated into the applicants’ mother tongue, had been notified to each of the applicants, who had refused to sign the record of notification. In the Government’s submission, those orders had been largely similar because, even though they had had the opportunity to do so, the applicants had not indicated any points worthy of note. These factors, in the Government’s view, distinguished the present case from Čonka (cited above, §§ 61-63), concerning the expulsion of a group of Slovakian nationals of Roma origin. 229. The Government lastly pointed out that the Palermo preliminary investigations judge, in his decision of 1 June 2012 (see paragraph 26 above), has taken the view that the refusal-of-entry measure was lawful and that the time-frame for the issuance of the orders had to be construed in the light of the particular circumstances of the case. The first applicant, who had unlawfully entered Italy on 17 September 2011, had been removed on 29 September 2011; the two others, who had entered on 18 September, had been returned on 27 September. In the Government’s view, those periods of twelve and nine days respectively could not be regarded as excessive. C. Third-party intervention 1. Coordination Française pour le droit d’asile 230. This coalition of associations called upon the Court to retain the classification of “collective expulsion” where migrants had been identified, but where there was no indication in the circumstances of the case that their individual situations had undergone a genuine and effective examination. Such an examination might render absolutely necessary the systematic presence of an interpreter and an official trained to examine the situations of aliens and asylum-seekers, and a consistent pattern of circumstances could reflect an intention to carry out an expulsion en masse. The Coordination Française pour le droit d’asile took the view that the Chamber judgment fell squarely within the logic of the Court’s case-law (it referred in particular to the Čonka, Hirsi Jamaa and Others and Sharifi and Others judgments, cited above) and was in phase with the relevant international practice (it referred, inter alia, to the judgment of the Inter-American Court of Human Rights of 28 August 2014 in the Expelled Dominicans and Haitians v. Dominican Republic case, and General Recommendation no. 30 of the United Nations Committee for the Elimination of Racial Discrimination). It asked the Court to exercise particular vigilance in cases where there were readmission agreements, which increased the risk of chain refoulement through fast-track procedures, and submitted that the safeguard under Article 4 of Protocol No. 4 ensured compliance with the obligation of non-refoulement. The absence of an explicit request for asylum did not release the State from that obligation. The expulsion of migrants without thoroughly examining their individual situation would significantly increase the risk of a breach of the non-refoulement principle. 2. The McGill Centre 231. In the submission of the McGill Centre, Article 4 of Protocol No. 4 should be interpreted as imposing on the State a duty of procedural fairness towards each individual concerned by an expulsion decision, with safeguards that might vary depending on the context. The political and social context of expulsion decisions, in particular, should be taken into account (it referred, inter alia, to Georgia v. Russia (I), cited above, § 171). 232. The Centre pointed out that collective expulsions were also prohibited under Article 22 § 9 of the American Convention on Human Rights and by Article 12 § 5 of the African Charter on Human and Peoples’ Rights, which added the need for a discriminatory dimension on national, racial, ethnic or religious grounds. It was true that, according to the committee of experts responsible for drafting the Protocol, Article 4 was supposed to prohibit “collective expulsions of aliens of the kind which have already taken place”, referring to events in the Second World War. However, through its evolutive interpretation of this Article the Court had moved away from the context in which it was drafted and would no longer require the existence of discrimination in order to establish that the expulsion of a certain number of aliens was collective in nature. 233. It could be seen from the Court’s case-law that there was a presumption of “collective” expulsion where there was an expulsion of aliens as a group. The State would then have a duty to show that it had guaranteed a fair and individual procedure to each expelled individual, through a reasonable and objective examination of his or her specific situation. The Court did not, however, impose a “mandatory decision ‑ making process”. A similar approach had been adopted by the United Nations Human Rights Committee and by the Inter-American Commission on Human Rights, which in its 1991 report on the “Situation of Haitians in the Dominican Republic” found that there had been a collective expulsion of Haitians by the Government of the Dominican Republic because the expelled individuals had not been given a formal hearing enabling them to claim their right to remain. According to the Commission, persons being expelled had the right to be heard and the right to know and to challenge the legal grounds for the expulsion. 3. The AIRE Centre and ECRE 234. Relying on the preparatory work in respect of Protocol No. 4, on the International Law Commission’s Draft Articles on the expulsion of aliens, and on the interpretation of Article 13 of the International Covenant on Civil and Political Rights, these two associations argued that Article 4 of Protocol No. 4 prohibited the “collectivity” of an expulsion and the lack of any individualised consideration of each personal situation. Compliance with that provision would reduce the risk of discriminatory treatment. 235. According to the AIRE Centre and ECRE, the fact that a State might generically be considered a “safe country” was not conclusive of the assumption that it was safe for the return of everyone. An individual assessment had to be made before the return, and the fact that the applicants had not alleged that their return to Tunisia had exposed them to a risk of a violation of Articles 2 or 3 of the Convention was immaterial. Similarly, in order to implement the UN Protocol against Smuggling of Migrants by Land, Sea and Air, individualised procedures had to be in place in order to identify the victims of human trafficking who wished to cooperate with the authorities. Moreover, the right of a migrant to be heard and to make known his or her views effectively before the adoption of an expulsion decision had been upheld by the CJEU in the Khaled Boudjlida and Sophie Mukarubega judgments (cited above, see paragraphs 42-45 above). 236. The AIRE Centre and ECRE observed that Article 19 § 1 of the European Union Charter of Fundamental Rights prohibited collective expulsions and argued that at the material time Italy had been bound to comply with the Return Directive (see paragraph 41 above), not having expressly declared that it wished to apply Article 2 § 2 (a) of that instrument. The intervening associations also pointed out that in a decision adopted on 21 January 2016 in the case of ZAT, IAJ, KAM, AAM, MAT, MAJ and LAM v. Secretary of State for the Home Department, a United Kingdom court had held that vulnerable Syrian children in a camp in Calais, France, who had relatives in the United Kingdom should be transferred to that country immediately, as soon as they had filed their asylum applications in France. D. The Court’s assessment 1. Principles established in the Court’s case-law 237. According to the Court’s case-law, collective expulsion is to be understood as “any measure compelling aliens, as a group, to leave a country, except where such a measure is taken on the basis of a reasonable and objective examination of the particular case of each individual alien of the group” (see Georgia v. Russia (I), cited above, § 167; see also Andric, decision cited above; Davydov v. Estonia (dec), no. 16387/03, 31 May 2005; Sultani, cited above, § 81; and Ghulami v. France (dec), no. 45302/05, 7 April 2009). This does not mean, however, that where the latter condition is satisfied the background to the execution of the expulsion orders plays no further role in determining whether there has been compliance with Article 4 of Protocol No. 4 (see Čonka, cited above, § 59, and Georgia v. Russia (I), cited above, § 167). 238. The purpose of Article 4 of Protocol No. 4 is to prevent States from being able to remove a certain number of aliens without examining their personal circumstances and therefore without enabling them to put forward their arguments against the measure taken by the relevant authority (see Hirsi Jamaa and Others, cited above, § 177, and Sharifi and Others, cited above, § 210; see also Andric, decision cited above). In order to determine whether there has been a sufficiently individualised examination, it is necessary to consider the circumstances of the case and to verify whether the removal decisions had taken into consideration the specific situation of the individuals concerned (see Hirsi Jamaa and Others, cited above, § 183). Regard must also be had to the particular circumstances of the expulsion and to the “general context at the material time” (see Georgia v. Russia (I), cited above, § 171). 239. As the Court has previously observed, the fact that a number of aliens are subject to similar decisions does not in itself lead to the conclusion that there is a collective expulsion if each person concerned has been given the opportunity to put arguments against his expulsion to the competent authorities on an individual basis (see, among other authorities, M.A. v. Cyprus, cited above, §§ 246 and 254; Sultani, cited above, § 81; Hirsi Jamaa and Others, cited above, § 184; and Georgia v. Russia (I), cited above, § 167). 240. The Court has held that there is no violation of Article 4 of Protocol No. 4 where the lack of an individual expulsion decision can be attributed to the culpable conduct of the person concerned (see Hirsi Jamaa and Others, cited above, § 184; see also M.A. v. Cyprus, cited above, § 247; Berisha and Haljiti v. the former Yugoslav Republic of Macedonia (dec.), no. 18670/03, 16 June 2005; and Dritsas v. Italy (dec), no. 2344/02, 1 February 2011). 241. Without calling into question either the right of States to establish their own immigration policies (see Georgia v. Russia (I), cited above, § 177), potentially in the context of bilateral cooperation, or the obligations stemming from membership of the European Union (see Sharifi and Others, cited above, § 224), the Court has pointed out that problems with managing migratory flows or with the reception of asylum-seekers cannot justify recourse to practices which are not compatible with the Convention or the Protocols thereto (see Hirsi Jamaa and Others, cited above, § 179). The Court has also taken note of the “new challenges” facing European States in terms of immigration control as a result of the economic crisis, recent social and political changes which have had a particular impact on certain regions of Africa and the Middle East, and the fact that migratory flows are increasingly arriving by sea (see M.S.S. v. Belgium and Greece, cited above, § 223, and Hirsi Jamaa and Others, cited above, §§ 122 and 176). 242. The Court observes that to date it has found a violation of Article 4 of Protocol No. 4 in only four cases. In the first ( Čonka, cited above, §§ 60 ‑ 63) the measures of detention and removal had been adopted for the purpose of implementing an order to leave the country which made no reference to the applicants’ asylum request, whereas the asylum procedure had not yet been completed. In addition, a number of people had been simultaneously summoned to the police station, in conditions that made it very difficult for them to contact a lawyer, and the political bodies responsible had announced that there would be operations of that kind. The applicants in the second case ( Hirsi Jamaa and Others, cited above, § 185) had not undergone any identity checks and the authorities had merely put the migrants, who had been intercepted on the high seas, onto military vessels to take them back to the Libyan coast. In Georgia v. Russia (I) (cited above, §§ 170-78) the finding of a violation was based on a “routine of expulsions”, which had followed a recurrent pattern throughout Russia, the result of a coordinated policy of arrest, detention and expulsion of Georgians, who had been arrested under the pretext of examination of their documents, taken to Militia stations where they were gathered in large groups, and expelled after courts had entered into preliminary agreements to endorse such decisions, without any legal representation or examination of the particular circumstances of each case. In Sharifi and Others (cited above, §§ 214-25), lastly, the Court, taking into consideration a range of sources, found that the migrants intercepted in Adriatic ports were being subjected to “automatic returns” to Greece and had been deprived of any effective possibility of seeking asylum. 2. Application of those principles in the present case 243. The Court must first address the Government’s argument (see paragraph 226 above) that Article 4 of Protocol No. 4 is not applicable because the procedure to which the applicants were subjected was classified as a “refusal of entry with removal” and not as an “expulsion” (deportation). The Court notes that the International Law Commission (ILC) has defined “expulsion” as “a formal act or conduct attributable to a State, by which an alien is compelled to leave the territory of that State” (see Article 2 of the Draft Articles on the Expulsion of Aliens, cited in paragraph 46 above). In the same vein, the Court has previously noted that “the word ‘expulsion’ should be interpreted ‘in the generic meaning, in current use (to drive away from a place)’” (see Hirsi Jamaa and Others, cited above, § 174). 244. The Court sees no reason to reach a different conclusion in the present case. It observes that there is no doubt that the applicants, who were on Italian territory, were removed from that State and returned to Tunisia against their will, thus constituting an “expulsion” within the meaning of Article 4 of Protocol No. 4. It remains to be established whether that expulsion was “collective” in nature. 245. In this connection, the ILC, informed by the Court’s case-law, has indicated that “collective expulsion means expulsion of aliens, as a group” (see Article 9 § 1 of the Draft Articles on the Expulsion of Aliens and the Commentary to that Article, cited in paragraphs 46 and 47 above). Turning now to the facts of the present case, the Court observes at the outset that the applicants have not disputed the fact that they underwent identification on two occasions: immediately after their arrival at the Contrada Imbriacola CSPA by Italian civil servants (see paragraph 12 above), and before they boarded the planes for Tunis, by the Tunisian Consul (see paragraph 18 above). However, the parties are not in agreement as to the conditions of the first identification. In the Government’s submission, it had consisted of a genuine individual interview, carried out in the presence of an interpreter or cultural mediator, following which the authorities had filled out an “information sheet” containing personal data and any circumstances specific to each migrant (see paragraph 224 above). The applicants alleged, by contrast, that the Italian authorities had merely recorded their identities and fingerprints, without taking their personal situations into account and without any interpreter or independent legal adviser being present (see paragraph 214 above). They lastly disputed the Government’s allegation that there were individual information sheets concerning each migrant, observing that there was no evidence of this (see paragraph 222 above). 246. The Court notes that the Government provided a plausible explanation to justify their inability to produce the applicants’ information sheets, namely the fact that those documents had been destroyed in the fire at the Contrada Imbriacola CSPA (see paragraph 14 above). Moreover, it should be observed that the applicants did not dispute the Government’s submission that ninety-nine “social operators”, three social workers, three psychologists, and eight interpreters and cultural mediators worked at the CSPA (see paragraph 152 above). In that context, the Court also notes that, according to the report of the PACE Ad Hoc Sub-Committee (see paragraph 49 above), interpreters and cultural mediators worked on Lampedusa from February 2011 onwards (see § 28 of that report). It is reasonable to assume that those persons intervened to facilitate communication and mutual understanding between the migrants and the Italian authorities. 247. In any event, the Court is of the opinion that at the time of their first identification, which according to the Government consisted in taking their photographs and fingerprints (see paragraph 224 above), or at any other time during their confinement in the CSPA and on board the ships, the applicants had an opportunity to notify the authorities of any reasons why they should remain in Italy or why they should not be returned. In that context it is significant that, as stated by the Government (see paragraph 225 above) and the Palermo preliminary investigations judge (see paragraphs 25 and 27 above), and not disputed by the applicants, seventy-two migrants held in the Lampedusa CSPA at the time of the fire expressed their wish to apply for asylum, thus halting their return and resulting in their transfer to other reception centres. It is true that the applicants stated that their individual circumstances did not allow them to invoke international protection (see paragraph 222 above). Nevertheless, in an expulsion procedure the possibility of lodging an asylum application is a paramount safeguard, and there is no reason to assume that the Italian authorities, which heeded the wishes of other migrants who sought to rely on the non ‑ refoulement principle, would have remained unreceptive in response to the submission of other legitimate and legally arguable impediments to their removal. 248. The Court would point out that Article 4 of Protocol No. 4 does not guarantee the right to an individual interview in all circumstances; the requirements of this provision may be satisfied where each alien has a genuine and effective possibility of submitting arguments against his or her expulsion, and where those arguments are examined in an appropriate manner by the authorities of the respondent State. 249. In the present case, the applicants, who could reasonably have expected to be returned to Tunisia in view of the conditions of their arrival on the Italian coast, remained for between nine and twelve days in Italy. Even assuming that they encountered objective difficulties in the CSPA or on the ships (see, in particular, §§ 49 and 50 of the PACE Ad Hoc Sub ‑ Committee’s report, cited in paragraph 49 above), the Court is of the view that during that not insignificant period of time the applicants had the possibility of drawing the attention of the national authorities to any circumstance that might affect their status and entitle them to remain in Italy. 250. The Court further notes that on 27 and 29 September 2011, before boarding the planes for Tunis, the applicants were received by the Tunisian Consul, who recorded their identities (see paragraph 18 above); they thus underwent a second identification. Even though it was carried out by a representative of a third State, this later check enabled the migrants’ nationality to be confirmed and gave them a last chance to raise arguments against their expulsion. The Government, whose claims on this point are not disputed by the applicants, substantiated them by pointing out that, after details as to their age or nationality had been established during their meetings with the Tunisian Consul, some of the migrants listed by the Italian authorities had not been removed after all (see paragraph 227 above). 251. The Chamber rightly observed that the refusal-of-entry orders had been drafted in comparable terms, only differing as to the personal data of each migrant, and that a large number of Tunisian migrants had been expelled at the relevant time. However, according to the case-law cited in paragraph 239 above, those two facts cannot in themselves be decisive. In the Court’s view, the relatively simple and standardised nature of the refusal-of-entry orders could be explained by the fact that the applicants did not have any valid travel documents and had not alleged either that they feared ill-treatment in the event of their return or that there were any other legal impediments to their expulsion. It is therefore not unreasonable in itself for those orders to have been justified merely by the applicants’ nationality, by the observation that they had unlawfully crossed the Italian border, and by the absence of any of the situations provided for in Article 10 § 4 of Legislative Decree no. 286 of 1998 (political asylum, granting of refugee status or the adoption of temporary protection measures on humanitarian grounds, see paragraphs 19 and 33 above). 252. It follows that in the particular circumstances of the case, the virtually simultaneous removal of the three applicants does not lead to the conclusion that their expulsion was “collective” within the meaning of Article 4 of Protocol No. 4 to the Convention. It may indeed be explained as the outcome of a series of individual refusal-of-entry orders. Those considerations suffice for the present case to be distinguished from the cases of Čonka, Hirsi Jamaa and Others, Georgia v. Russia (I) and Sharifi and Others (all cited and described in paragraph 242 above), such as to preclude the characterisation of the applicants’ expulsion as “collective”. 253. The Court would observe, moreover, that the applicants’ representatives, both in their written observations and at the public hearing (see paragraph 222 above), were unable to indicate the slightest factual or legal ground which, under international or national law, could have justified their clients’ presence on Italian territory and preclude their removal. This calls into question the usefulness of an individual interview in the present case. 254. To sum up, the applicants underwent identification on two occasions, their nationality was established, and they were afforded a genuine and effective possibility of submitting arguments against their expulsion. There has therefore been no violation of Article 4 of Protocol No. 4. 255. This finding makes it unnecessary for the Court to address the question whether, as the Government argued (see paragraph 223 above), the April 2011 agreement between Italy and Tunisia, which has not been made public, can be regarded as a “readmission” agreement within the meaning of the Return Directive (see paragraph 41 above), and whether this could have implications under Article 4 of Protocol No. 4. VII. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION TAKEN TOGETHER WITH ARTICLES 3 AND 5 OF THE CONVENTION AND WITH ARTICLE 4 OF PROTOCOL No. 4 256. The applicants complained that they had not been afforded an effective remedy under Italian law by which to raise their complaints under Articles 3 and 5 of the Convention and under Article 4 of Protocol No. 4. They relied on Article 13 of the Convention, which provides: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. Chamber judgment 257. The Chamber began by considering that, to the extent that the applicants relied on Article 13 in conjunction with Article 5, their complaint was covered by the Court’s findings under Article 5 § 4 (see paragraph 161 of the Chamber judgment). 258. It went on to find a violation of Article 13 taken together with Article 3. It observed that the Government had not indicated any remedies by which the applicants could have complained about the conditions of their accommodation in the CSPA or on the ships. Moreover, an appeal to the Justice of the Peace against the refusal-of-entry orders would have served merely to challenge the lawfulness of their removal to Tunisia, and those orders had been issued only at the end of their period of confinement (see paragraphs 168-70 of the Chamber judgment). 259. In addition, the Chamber noted that in the context of an appeal against the refusal-of-entry orders, the Justice of the Peace could assess their lawfulness in the light of domestic law and the Italian Constitution. The Chamber found that the applicants could thus have complained that their expulsion was “collective” in nature and that there was nothing to suggest that such a complaint would have been disregarded by the judge. Nevertheless, the orders expressly stipulated that the lodging of an appeal with the Justice of the Peace would not have suspensive effect, and this appeared to run counter to the case-law set out by the Grand Chamber in its De Souza Ribeiro v. France judgment ([GC], no. 22689/07, § 82, ECHR 2012). On that basis the Chamber found a violation of Article 13 taken together with Article 4 of Protocol No. 4 (see paragraphs 171-73 of the Chamber judgment). B. The parties’ submissions 1. The applicants 260. The applicants alleged that it had not been possible for them to submit to the Italian authorities a complaint about the degrading conditions to which they had been subjected during their deprivation of liberty. They added that the refusal-of-entry orders had provided for the possibility of an appeal, within a period of sixty days, to the Agrigento Justice of the Peace. However, such a remedy would not have stayed the execution of the removal. The applicants argued that it was clear from the Court’s case-law (they referred in particular to Hirsi Jamaa and Others, cited above, § 206) that the suspensive nature of a remedy was, in such matters, a condition of its effectiveness. That was merely a logical consequence of the hermeneutic principle that, to be effective, Convention provisions must be interpreted in a manner which guaranteed rights that were practical and effective and not theoretical and illusory. In the applicants’ view, the assessment of the lawfulness of the expulsion must therefore take place before the measure is enforced. 261. The applicants alleged that the violation that they had sustained was even more serious than that found by the Court in the Čonka case (cited above), in a situation where the domestic legislation had provided, in abstracto, that a stay of execution could be ordered. In the present case, however, the refusal-of-entry orders had clearly indicated that appeals against them could never have suspensive effect. 262. In addition, the applicants denied having received copies of the orders, as was proven, in their view, by the fact that their signatures did not appear on the records of notification. Nor had they been able to obtain legal assistance, because lawyers had no access to holding facilities and could not be contacted by telephone from inside such premises. 263. As regards the decisions of the Agrigento Justice of the Peace annulling two refusal-of-entry orders (see paragraph 31 above), the applicants observed that they had concerned two migrants who had not yet been removed and who, in accordance with Article 14 of Legislative Decree no. 268 of 1998, had been placed in a CIE. The migrants in question, they explained, had challenged the lawfulness of the refusal-of-entry measure as the legal basis for their detention in the CIE, and they had been able to do so because they were still on Italian soil. The applicants observed that, unlike those migrants, they themselves could only have challenged their refusal ‑ of ‑ entry orders as the legal basis for their removal, and then only after their return to Tunisia. 2. The Government 264. The Government maintained their argument that the applicants had been entitled to appeal to the Agrigento Justice of the Peace against the refusal-of-entry orders (see paragraph 126 above). C. Third-party intervention 265. The AIRE Centre and ECRE argued that, even in the absence of an express indication to that effect, the Return Directive (see paragraph 41 above) and the Schengen Borders Code, read in the light of the Convention and the EU Charter of Fundamental Rights, should be interpreted to mean that in the event of collective expulsion, remedies against removal should have automatic suspensive effect. D. The Court’s assessment 266. The Court would begin by observing, as the Chamber did, that, according to its settled case-law, Article 5 § 4 of the Convention provides a lex specialis in relation to the more general requirements of Article 13 (see Nikolova v. Bulgaria [GC], no. 31195/96, § 69, ECHR 1999-II, and Ruiz Rivera v. Switzerland, no. 8300/06, § 47, 18 February 2014). In the present case, the facts giving rise to the applicants’ complaint under Article 13 of the Convention in conjunction with Article 5 are identical to those already examined under Article 5 § 4, and are thus covered by the Court’s findings under the latter provision (see De Jong, Baljet and Van den Brink v. the Netherlands, 22 May 1984, § 60, Series A no. 77, and Chahal, cited above, §§ 126 and 146). 267. It remains to be examined whether there has been a violation of Article 13 taken together with Article 3 of the Convention and Article 4 of Protocol No. 4. 1. Principles established in the Court’s case-law 268. Article 13 of the Convention guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they may happen to be secured. The effect of that provision is thus to require the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief. The scope of the Contracting States’ obligations under Article 13 varies depending on the nature of the applicant’s complaint. However, the remedy required by Article 13 must be “effective” in practice as well as in law. The “effectiveness” of a “remedy” within the meaning of Article 13 does not depend on the certainty of a favourable outcome for the applicant. Nor does the “authority” referred to in that provision necessarily have to be a judicial authority; but if it is not, its powers and the guarantees which it affords are relevant in determining whether the remedy before it is effective. Also, even if a single remedy does not by itself entirely satisfy the requirements of Article 13, the aggregate of remedies provided for under domestic law may do so (see, among many other authorities, Kudła, cited above, § 157, and Hirsi Jamaa and Others, cited above, § 197). 2. Application of those principles in the present case 269. The Court first notes that it declared admissible the applicants’ complaints under the substantive head of Article 3 of the Convention and under Article 4 of Protocol No. 4. Even though, for the reasons given above, it did not find a violation of those two provisions, it nevertheless considers that the complaints raised by the applicants thereunder were not manifestly ill-founded and raised serious questions of fact and law requiring examination on the merits. The complaints in question were therefore “arguable” for the purposes of Article 13 of the Convention (see, mutatis mutandis, Hirsi Jamaa and Others, cited above, § 201). (a) Alleged violation of Article 13 of the Convention taken together with Article 3 270. Like the Chamber, the Court observes that the Government have not indicated any remedies by which the applicants could have complained about the conditions in which they were held in the Contrada Imbriacola CSPA or on the ships Vincent and Audace. An appeal to the Justice of the Peace against the refusal-of-entry orders would have served only to challenge the lawfulness of their removal. Moreover, those orders were issued only at the end of their period of confinement. 271. It follows that there has been a violation of Article 13 taken together with Article 3 of the Convention. (b) Alleged violation of Article 13 of the Convention taken together with Article 4 of Protocol No. 4 272. In so far as the applicants complained of the lack of any effective remedy by which to challenge their expulsion from the perspective of its collective aspect, the Court notes that the refusal-of-entry orders indicated expressly that the individuals concerned could appeal against them to the Agrigento Justice of the Peace within a period of sixty days (see paragraph 19 above). There is no evidence before the Court to cast doubt on the effectiveness of that remedy in principle. Moreover, the Government adduced two decisions of the Agrigento Justice of the Peace showing that, on an appeal by two migrants, the judge examined the procedure followed for the issuance of the refusal-of-entry orders in question and assessed the lawfulness of that procedure in the light of domestic law and the Constitution. The Justice of the Peace decided, in particular, that the orders should be declared null and void on the ground that an excessive length of time had elapsed between the identification of each irregular migrant and the adoption of the order (see paragraphs 30 ‑ 31 above). Like the Chamber, the Court sees no reason to doubt that, in the event of an appeal against a refusal-of-entry order, the Justice of the Peace would also be entitled to examine any complaint about a failure to take account of the personal situation of the migrant concerned and based therefore, in substance, on the collective nature of the expulsion. 273. The Court further notes that it can be seen from the records of notification appended to the refusal-of-entry orders that the addressees refused to “sign or to receive a copy” of those documents (see paragraph 20 above). The applicants did not adduce any evidence that would cast doubt on the veracity of that annotation. They cannot therefore blame the authorities either for any lack of understanding on their part of the content of the orders, or for any difficulties that their lack of information might have caused for the purposes of lodging an appeal with the Agrigento Justice of the Peace. 274. While there was certainly a remedy available, it would not, “in any event”, have suspended the enforcement of the refusal-of-entry orders (see paragraph 19 above). The Court must therefore determine whether the lack of suspensive effect, in itself, constituted a violation of Article 13 of the Convention taken together with Article 4 of Protocol No. 4. 275. The Chamber answered that question in the affirmative, basing its finding on paragraph 82 of the judgment in De Souza Ribeiro (cited above), which reads as follows: “Where a complaint concerns allegations that the person’s expulsion would expose him to a real risk of suffering treatment contrary to Article 3 of the Convention, in view of the importance the Court attaches to that provision and given the irreversible nature of the harm that might occur if the risk of torture or ill-treatment alleged materialised, the effectiveness of the remedy for the purposes of Article 13 requires imperatively that the complaint be subject to close scrutiny by a national authority (see Shamayev and Others v. Georgia and Russia, no. 36378/02, § 448, ECHR 2005 ‑ III), independent and rigorous scrutiny of a claim that there exist substantial grounds for fearing a real risk of treatment contrary to Article 3 (see Jabari, cited above, § 50), and reasonable promptness (see Batı and Others v. Turkey, nos. 33097/96 and 57834/00, § 136, ECHR 2004 ‑ IV). In such a case, effectiveness also requires that the person concerned should have access to a remedy with automatic suspensive effect (see Gebremedhin [Gaberamadhien], cited above, § 66, and Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, § 200, ECHR 2012). The same principles apply when expulsion exposes the applicant to a real risk of a violation of his right to life safeguarded by Article 2 of the Convention. Lastly, the requirement that a remedy should have automatic suspensive effect has been confirmed for complaints under Article 4 of Protocol No. 4 (see Čonka, cited above, §§ 81-83, and Hirsi Jamaa and Others, cited above, § 206).” 276. The Court observes that, while the last sentence of the above-cited paragraph 82 certainly appears to establish the need for “a remedy with automatic suspensive effect ... for complaints under Article 4 of Protocol No. 4”, it cannot be read in isolation. On the contrary, it must be understood in the light of the paragraph as a whole, which establishes an obligation for States to provide for such a remedy where the person concerned alleges that the enforcement of the expulsion would expose him or her to a real risk of ill-treatment in breach of Article 3 of the Convention or of a violation of his or her right to life under Article 2, on account of the irreversible nature of the harm that might occur if the risk of torture or ill-treatment materialised. It should also be noted that the last statement in paragraph 82 of the De Souza Ribeiro judgment is corroborated by the citation of the Čonka (cited above, §§ 81-83) and Hirsi Jamaa and Others (cited above, § 206) judgments. However, those two cases concerned situations in which the applicants had sought to alert the national authorities to the risk that they might be subjected to treatment in breach of Article 3 of the Convention in the destination countries, and not to any allegation that their expulsion from the host State was collective in nature. 277. The Court takes the view that where, as in the present case, an applicant does not allege that he or she faces violations of Articles 2 or 3 of the Convention in the destination country, removal from the territory of the respondent State will not expose him or her to harm of a potentially irreversible nature. 278. The risk of such harm will not obtain, for example, where it is argued that the expulsion would breach the person’s right to respect for his or her private and family life. That situation is envisaged in paragraph 83 of the De Souza Ribeiro judgment, which must be read in conjunction with the preceding paragraph, and which reads as follows: “By contrast, where expulsions are challenged on the basis of alleged interference with private and family life, it is not imperative, in order for a remedy to be effective, that it should have automatic suspensive effect. Nevertheless, in immigration matters, where there is an arguable claim that expulsion threatens to interfere with the alien’s right to respect for his private and family life, Article 13 of the Convention in conjunction with Article 8 requires that States must make available to the individual concerned the effective possibility of challenging the deportation or refusal-of-residence order and of having the relevant issues examined with sufficient procedural safeguards and thoroughness by an appropriate domestic forum offering adequate guarantees of independence and impartiality (see M. and Others v. Bulgaria, no. 41416/08, §§ 122-32, 26 July 2011, and, mutatis mutandis, Al-Nashif v. Bulgaria, no. 50963/99, § 133, 20 June 2002).” 279. In the Court’s view, similar considerations apply where an applicant alleges that the expulsion procedure was “collective” in nature, without claiming at the same time that it had exposed him or her to a risk of irreversible harm in the form of a violation of Articles 2 or 3 of the Convention. It follows that in such cases the Convention does not impose an absolute obligation on a State to guarantee an automatically suspensive remedy, but merely requires that the person concerned should have an effective possibility of challenging the expulsion decision by having a sufficiently thorough examination of his or her complaints carried out by an independent and impartial domestic forum. The Court finds that the Agrigento Justice of the Peace satisfied those requirements. 280. The Court would also point out that the fact that the remedy available to the applicant did not have suspensive effect was not a decisive consideration for the conclusion reached in the De Souza Ribeiro case that there had been a violation of Article 13 of the Convention. That conclusion was based on the fact that the applicant’s “arguable” complaint, to the effect that his removal was incompatible with Article 8 of the Convention, had been dismissed rapidly, in fact extremely hastily (the applicant had appealed to the Administrative Court on 26 January 2007 at 3.11 p.m., and had been deported to Brazil on the same day at around 4 p.m. – see De Souza Ribeiro, cited above, §§ 84-100, and in particular §§ 93-94 and 96). 281. It follows that the lack of suspensive effect of a removal decision does not in itself constitute a violation of Article 13 of the Convention where, as in the present case, the applicants do not allege that there is a real risk of a violation of the rights guaranteed by Articles 2 or 3 in the destination country. Accordingly, there has been no violation of Article 13 of the Convention taken together with Article 4 of Protocol No. 4. VIII. APPLICATION OF ARTICLE 41 OF THE CONVENTION 282. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 283. The applicants claimed 65,000 euros (EUR) each in respect of the non-pecuniary damage that they alleged to have sustained. They argued that this amount was justified on account of the gravity of the violations of which they were victims. They requested that this sum be paid into their own Tunisian bank accounts. 284. The Government took the view that the applicants’ claims for just satisfaction were “unacceptable”. 285. Having regard to the particular circumstances of the case and to the conclusions it has reached as to the applicants’ various complaints, the Court finds that each applicant should be awarded EUR 2,500 in respect of non-pecuniary damage, amounting to a total of EUR 7,500 for all three applicants. B. Costs and expenses 286. The applicants also claimed EUR 25,236.89 for the costs and expenses incurred by them before the Court. That sum covered: the travel expenses of their representatives for a visit to Tunis (EUR 432.48); the travel expenses of their representatives for attendance at the Grand Chamber hearing (EUR 700); the translation of the observations before the Chamber (EUR 912.03) and before the Grand Chamber (EUR 1,192.38); the consultation of a lawyer specialising in international human rights law (EUR 3,000) and a lawyer specialising in immigration law (EUR 3,000); and the fees of their representatives in the proceedings before the Court (in total, EUR 16,000). The applicants’ representatives stated that they had advanced those expenses and requested that the sum awarded be paid directly into their respective bank accounts. 287. The Government submitted no observations on this point. 288. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and to its case-law, the Court considers excessive the total sum claimed for the costs and expenses incurred in the proceedings before it (EUR 25,236.89). It decides to award EUR 15,000 under that head to the applicants jointly. That sum is to be paid directly into the bank accounts of the applicants’ representatives (see, mutatis mutandis, Oleksandr Volkov v. Ukraine, no. 21722/11, § 219, ECHR 2013). C. Default interest 289. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Grand Chamber held that there had been no violation of Article 4 of Protocol No. 4 to the Convention. It found in particular that Article 4 of Protocol No. 4 did not guarantee the right to an individual interview in all circumstances. The requirements of that provision were satisfied where each alien had the possibility of raising arguments against his or her expulsion and where those arguments had been examined by the authorities of the respondent State. In the present case, the Grand Chamber concluded that, having been identified on two occasions, and their nationality having been established, the applicants had had a genuine and effective possibility of raising arguments against their expulsion. The Grand Chamber also held that there had been no violation of Article 13 (right to an effective remedy) of the Convention combined with Article 4 of Protocol No. 4, finding that the lack of suspensive effect of a remedy against a removal decision did not in itself constitute a violation of Article 13 where the applicants did not allege a real risk of a violation of the rights guaranteed by Articles 2 (right to life) or 3 (prohibition of torture and inhuman or degrading treatment) of the Convention in the destination country. Lastly, the Grand Chamber held that there had been a violation of Article 5 § 1 (right to liberty and security) of the Convention, a violation of Article 5 § 2 (right to be informed promptly of the reasons for deprivation of liberty), a violation of Article 5 § 4 (right to a speedy decision by a court on the lawfulness of detention), no violation of Article 3 (prohibition of inhuman or degrading treatment) as regards both the conditions in the Lampedusa early reception and aid centre and the conditions on the ships in Palermo harbour, and a violation of Article 13 (right to an effective remedy) taken in conjunction with Article 3 concerning the lack of a remedy by which the applicants could have complained about the conditions in which they were held in the Lampedusa reception centre or on the ships. |
232 | The definition of idem | ii. relevant domestic law 16. Article 125 of the Swiss Criminal Code provides: “1. Anyone who negligently causes damage to the physical integrity or health of another shall, on a complaint, be liable to imprisonment or a fine. 2. If the injury is serious, the offender shall be prosecuted even in the absence of a complaint.” 17. Subsection 31(1) of the Federal Road Traffic Act provides, inter alia, that drivers shall remain in control of their vehicles at all times so as to fulfil their obligations to drive carefully. Under section 32, drivers must adapt the vehicle's speed to conditions. PROCEEDINGS BEFORE THE COMMISSION 18. Mrs Oliveira applied to the Commission on 22 October 1994. She complained of a breach of Article 4 of Protocol No. 7. 19. The Commission declared the application (no. 25711/94) admissible on 13 January 1997. In its report of 1 July 1997 (Article 31), it expressed the opinion that there had been a violation of that provision (twenty-four votes to eight). The full text of the Commission’s opinion and of the two dissenting opinions contained in the report is reproduced as an annex to this judgment [3]. FINAL SUBMISSIONS TO THE COURT 20. In their memorial, the Government invited the Court to hold that there had been no violation of Article 4 of Protocol No. 7 in the instant case. 21. In her memorial, the applicant requested the Court “1. To find that judgments delivered in criminal proceedings under the sovereign authority of the Swiss Confederation by the single judge at the Zürich District Court, by the Court of Appeal, by the Court of Cassation of the Canton of Zürich and by the Swiss Federal Court have infringed, to the applicant’s detriment, provisions of the European Convention on Human Rights, in particular Protocol No. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms, and that accordingly the respondent Government have failed to fulfil their obligation to comply with the provisions of the Convention. 2. To order the respondent Government, pursuant to Article 50 of the Convention taken together with Rule 52 § 1 of Rules of Court B, to pay the applicant just satisfaction in the sum of 60,340 Swiss francs.” AS TO THE LAW alleged VIOLATION OF ARTICLE 4 OF Protocol No. 7 22. In the applicant's submission, the fact that the same incident had led to her conviction firstly for failing to control her vehicle and subsequently for negligently causing physical injury constituted a breach of Article 4 of Protocol No. 7, which provides: “1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State. 2. The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case. 3. No derogation from this Article shall be made under Article 15 of the Convention.” In its judgment of 7 October 1993 the Court of Appeal had noted that the police magistrate knew that the accident victim had suffered serious injuries, in respect of which he had no jurisdiction. He had nonetheless given a ruling without remitting the case file to the district attorney’s office. The police magistrate had therefore decided the case in full knowledge of the relevant facts and in that regard it did not really matter why he had chosen not to impose a heavier penalty on the applicant. Even if he had erred in his assessment of the facts and the penalty called for, it was unacceptable that the applicant should be made to suffer the consequences by being convicted twice in respect of the same incident. Neither the police magistrate’s decision nor the fine he had imposed had been set aside by the higher courts, which had also punished the applicant. In short, there had been a breach of the non bis in idem principle. 23. The Government submitted that the limits within which Article 4 of Protocol No. 7 had been conceived could not be drawn so as categorically to exclude all possibility of the same set of facts being considered in two separate sets of proceedings. In any event, the case was distinguishable in three respects from that of Gradinger v. Austria (see the judgment of 23 October 1995, Series A no. 328-C): ( i ) there had been no inconsistency in the two relevant authorities’ assessment of the facts, (ii) as the jurisdiction of the first authority (the police magistrate) was limited he would not have been able to consider all the aspects of the offending conduct and, (iii) the applicant had not been put at any disadvantage as a result of there being separate proceedings. Under Swiss law, the police magistrate’s jurisdiction did not extend to serious offences ( crimes and délits ), which were the responsibility of the district attorney’s office ( Bezirksanwaltschaft ) and the public prosecutor's office ( Staatsanwaltschaft ). The non bis in idem principle could not therefore apply in respect of a matter over which the police magistrate had no jurisdiction. The fact that he had nonetheless given a ruling was in all probability due to a misunderstanding between him and the district attorney in that, when the latter had sent the former the case file concerning a possible prosecution of the person injured in the accident, the police magistrate had taken it to be the file concerning the applicant. Whatever the position, Mrs Oliveira had not been prejudiced by his decision as the amount of the first fine had been deducted from the second. However, it would not be right either for the applicant to benefit in the name of the non bis in idem principle from that procedural error. 24. Relying on the Gradinger judgment cited above, the Commission accepted in substance the applicant’s argument. It noted that the basis for Mrs Oliveira’s two convictions had been that her car had veered onto the other side of the road hitting one car and then colliding with a second, whose driver had sustained serious injuries. The injuries had not been a separate element, but an integral part of the conduct by which they had finally been caused. Moreover, a defendant could not be deprived of the protection against a reopening of his case merely because his conviction had been based on a procedural defect. 25. The Court notes that the convictions in issue concerned an accident caused by the applicant on 15 December 1990. She had been driving on a road covered with ice and snow when her car veered onto the other side of the road hitting one car and then colliding with a second, whose driver sustained serious injuries. Mrs Oliveira was firstly ordered to pay a 200 Swiss franc (CHF) fine by the police magistrate for failing to control her vehicle as she had not adapted her speed to the road conditions (see paragraph 10 above). Subsequently, the Zürich District Court and then the Zürich Court of Appeal imposed a CHF 1,500 fine (from which, however, was deducted the amount of the initial fine) for negligently causing physical injury (see paragraphs 11–12 above). 26. That is a typical example of a single act constituting various offences ( concours idéal d’infractions ). The characteristic feature of this notion is that a single criminal act is split up into two separate offences, in this case the failure to control the vehicle and the negligent causing of physical injury. In such cases, the greater penalty will usually absorb the lesser one. There is nothing in that situation which infringes Article 4 of Protocol No. 7 since that provision prohibits people being tried twice for the same offence whereas in cases concerning a single act constituting various offences ( concours idéal d’infractions ) one criminal act constitutes two separate offences. 27. It would admittedly have been more consistent with the principles governing the proper administration of justice for sentence in respect of both offences, which resulted from the same criminal act, to have been passed by the same court in a single set of proceedings. Indeed, it appears that that is what ought to have occurred in the instant case as the police magistrate should, in view of the fact that the serious injuries sustained by the injured party were outside his jurisdiction, have sent the case file to the district attorney for him to rule on both offences together (see paragraph 10 above). The fact that that procedure was not followed in Mrs Oliveira’s case is, however, irrelevant as regards compliance with Article 4 of Protocol No. 7 since that provision does not preclude separate offences, even if they are all part of a single criminal act, being tried by different courts, especially where, as in the present case, the penalties were not cumulative, the lesser being absorbed by the greater. 28. The instant case is therefore distinguishable from the case of Gradinger cited above, in which two different courts came to inconsistent findings on the applicant’s blood alcohol level. 29. In conclusion, there has been no violation of Article 4 of Protocol No. 7. | The Court noted that this was a typical example of a single act constituting various offences (concours idéal d’infractions). The characteristic feature of this notion is that a single criminal act is split up into two separate offences, in this case the failure to control the vehicle and the negligent causing of physical injury. In such cases, the greater penalty will usually absorb the lesser one. In the applicant’s case, the Court held that there had been no violation of Article 4 of Protocol No. 7, since that provision prohibits people being tried twice for the same offence whereas in cases concerning a single act constituting various offences one criminal act constitutes two separate offences. The Court added that it would admittedly have been more consistent with the principles governing the proper administration of justice for sentence in respect of both offences, which resulted from the same criminal act, to have been passed by the same court in a single set of proceedings. The fact that that procedure was not followed in the applicant’s case was, however, irrelevant as regards compliance with Article 4 of Protocol No. 7 since that provision does not preclude separate offences, even if they are all part of a single criminal act, being tried by different courts, especially where, as in the present case, the penalties were not cumulative, the lesser being absorbed by the greater. The instant case was therefore distinguishable from the case of Gradinger (see above), in which two different courts came to inconsistent findings on the applicant’s blood alcohol level. |
784 | Medical negligence and liability of health professionals | II. RELEVANT DOMESTIC LAW AND PRACTICE A. Criminal law 80. The relevant provisions of the Criminal Code read as follows: Article 137 “1. Anyone who kills another person through negligence shall be punishable by imprisonment for a period of up to three years or to a fine. 2. Gross negligence shall be punishable by imprisonment for up to five years.” Article 150 “... 2. Where the persons referred to in the previous paragraph, in pursuit of the aims indicated therein, perform surgery or provide treatment in a manner which breaches the rules of good medical practice and thereby endangers a patient ’ s life or health or creates a risk of serious bodily harm, their conduct shall be punishable by a period of imprisonment up to two years or by up to 24 day-fines, unless a heavier penalty has been imposed under another provision of the law.” 81. The head of the relevant health-care establishment has a duty to inform the competent judicial authority of any suspicious death of a hospital patient, by forwarding the medical records so as to enable an investigation to be carried out to establish the circumstances of death (Article 51 of Legislative Decree no. 11/98 of 24 January 1998 on forensic medical matters). An autopsy is performed in cases of violent or unexplained deaths, except where the clinical data and other elements are sufficiently convincing to preclude any suspicion of a crime; in that case, no autopsy needs to be carried out (Article 54). B. Civil and Administrative law 82. The relevant provision of the Civil Code reads as follows: Article 487 “1. It is for the injured party to prove liability for damage through negligence ( culpa ), unless there is a legal presumption of it. 2. In the absence of any other legal criteria, negligence is assessed with reference to the diligence of the bonus pater familias, in view of the circumstances of the case.” 83. At the material time the State ’ s non-contractual liability was governed by Legislative Decree no. 48051 of 21 November 1967, Article 2 of which read as follows: “1. The State and other public-law entities shall be liable in civil law vis-à-vis third parties for any acts infringing those parties ’ rights or the legal provisions designed to protect their interests, as the result of unlawful acts committed negligently by State or public agencies or officials in the performance of their duties or as a consequence thereof. 2. Where they have paid compensation under the terms of the preceding paragraph, the State and other public-law entities shall be entitled to claim reimbursement ( direito de regresso ) from those in charge of the agencies or the officials responsible, if these have not performed their duties with the requisite care and diligence.” 84. Article 6 of the aforementioned Legislative Decree reads: “ For the purposes of the present Legislative Decree, legal acts which infringe the relevant legal and regulatory norms or general principles shall be deemed unlawful, as shall material acts which infringe the said norms or principles or the technical rules or principles of due caution which must be taken into account.” C. Relevant disciplinary provisions 85. Article 2 of the Disciplinary Regulations for Doctors defines a disciplinary offence as follows: “A doctor who, by action or omission, fails, either intentionally or by negligence, to comply with one or more of the duties arising out of the Medical Association Statute, the Code of Ethics, the present Code, internal regulations, or any other applicable provision, shall be considered to have committed a disciplinary offence.” 86. The Disciplinary Regulations governing public officials and employees, in force at the material time, were contained in Legislative Decree no. 24/84 of 16 January 1984. Article 3 § 1 characterised a disciplinary offence as follows: “A disciplinary offence consists in the failure, not exceeding the status of a fault, by a public official or employee to comply with one of the general or specific obligations attaching to his or her functions.” 87. The duty of diligence was defined in Article 3 § 6 as follows: “The duty of diligence consists in being familiar with the relevant regulations and with the instructions from one ’ s hierarchical superiors, while possessing and perfecting the technical skills and working methods required to perform one ’ s duties correctly and efficiently.” D. Regulatory framework in the field of health care 88. Article 64 of the Portuguese Constitution guarantees the right to health and to a national universal health-care service focused on providing free health care while taking account of citizens ’ economic and social circumstances. 89. The Health Act, which was approved by virtue of Law no. 48/90 of 24 August 1990, establishes the principle whereby health care is dispensed by State services and establishments and by other public or private, profit ‑ making or non-profit entities under State supervision (section I, paragraph 4). 90. Under Basic Principle XIV of the Act, the users of the health-care system have, among other rights, the right freely to choose their doctor and health-care establishment, the right to receive or refuse the treatment offered, the right to be treated in an appropriate and humane manner, promptly and with respect, the right to be informed of their situation, of possible alternative treatments and of the likely development of their condition, and the right to complain of the manner in which they have been treated and to receive compensation for any damage suffered. 91. The rules applying the framework Health Act are laid down by Legislative Decree no. 11/93 of 15 January 1993, which approved the National Health-care System Regulations ( Estatuto do sistema nacional de saúde ). Under Article 38, the State has the task of supervising health-care establishments; the Ministry of Health is responsible for setting health-care standards, without prejudice to the functions assigned to the Medical Association and the Pharmacists ’ Association. 92. The Hospital Management Act, established by Legislative Decree no. 19/88 of 21 January 1988 and in force until 2002, stated in its preamble as follows: “All citizens have the right to expect hospitals (institutions whose social purpose must never be forgotten) to provide treatment of a standard that can reasonably be expected having regard to the respect due to citizens and the human and material resources available. Assessment of the services provided in hospitals, in terms of cost ‑ effectiveness but also and perhaps above all in terms of quality assurance, is an increasingly complex and essential task, one to which the authorities must give full attention and which must be addressed within the management of hospitals.” 93. Article 3 § 2 of the aforementioned Legislative Decree provided, in particular, for the Minister of Health to: “... define standards and criteria for service provision in hospitals, establish guidelines to be followed by service provision plans and programmes, monitor their implementation and evaluate the results obtained and the quality of the health care provided to the population, and request any information and documentation needed for this purpose.” 94. The principles governing service provision, set out in Article 6 of that Legislative Decree, included: respect for patients ’ rights; promptness and quality of the assistance provided within the limits of the available resources; lawful and efficient use of those resources; deployment of best endeavours to provide the services, as far as possible, with the necessary organisational structures, personnel and equipment; and observance of professional ethics by all those working in hospitals. 95. Article 27 of Legislative Decree no. 73/90 of 6 March 1990 on Medical Careers lays down the duties of hospital doctors. It reads, inter alia, as follows: “( a ) Reception of patients, duly registered in the outpatient records, with recourse to hospitalisation where necessary, and provision of appropriate information to the patient ’ s general practitioner in the form of a confidential written report. (b) Diagnosis and treatment of patients, supported by an effective professional relationship with the patient ’ s general practitioner and with the other doctors involved in his or her treatment outside the hospital. (c) Reception in hospital emergency departments. ...” 96. Article 7 of Legislative Decree no. 373/79 of 8 September 1979 on the status of medical practitioners laid down the duties of health professionals, including ensuring continuous professional development and contributing to the establishment and preservation of sound technical and human working conditions, with a view to providing an effective service and enhancing the prestige of the health-care service to which they belonged. 97. Relevant legislation concerning the health sector also includes the General Regulations on Hospitals, approved by Order no. 48358 of 27 April 1968, which lay down the forms of organisation and operation applicable to all hospitals, without prejudice to the fact that each establishment has its own local regulations. 98. At the relevant time, under Legislative Decree no. 291/93 of 24 August 1993, the Inspectorate General for Health was a department within the Ministry of Health with technical and administrative autonomy (Article 1) which was responsible, among other tasks, for supervising the activities and operation of health-care establishments (Article 3 § 1 (a)), and instituting disciplinary proceedings (Article 3 § 2 (b)). The IGS was headed by an Inspector General whose tasks included ordering the opening of investigative proceedings and issuing a decision when they had been completed (Article 5 (h)). Under the terms of Legislative Decree no. 275/2007 of 30 June 2007, the Inspectorate General for Health became the Inspectorate General for Health-Care Activities (IGAS). The IGAS has wider-ranging powers which extend to private bodies. 99. The Medical Association was governed at the material time by the Medical Association Statute, adopted by Legislative Decree no. 282/77 of 5 July 1977 as amended by Legislative Decree no. 217/94 of 20 August 1994. It is an independent body which is responsible for maintaining standards among members of the medical profession and ensuring observance of the Medical Code of Ethics. To be able to exercise their profession doctors must be registered with the Medical Association; in this context, emphasis is placed upon the need for them to observe the professional standards governing their profession. 100. The Medical Association also has disciplinary powers, although these do not preclude other disciplinary procedures provided for by law (Article 3 of the Disciplinary Regulations for Doctors, approved by Legislative Decree no. 217/94 of 20 August 1994). The regional disciplinary councils are responsible for instituting disciplinary proceedings against doctors in their region (Article 4). The decisions of the regional disciplinary councils are open to appeal before the National Disciplinary Council ( Conselho Nacional de Disciplina ) within an eight-day period (Articles 44 and 45). 101. The specialist panels ( Colégios de especialidades ) are bodies within the Medical Association composed of specialists in different branches of medicine (Article 87 of the Medical Association Statute). They are tasked, among other duties, with giving opinions to the Association ’ s National Executive Council. 102. The Code of Ethics contains the rules of an ethical nature which doctors must observe and from which they must draw inspiration in the course of their professional practice. According to the principle of independence of doctors, the latter, in the exercise of their profession, are “technically and ethically independent and accountable for their acts; they may not, in performing their clinical duties, receive technical or ethical directions from persons outside the medical profession”, a provision which “does not conflict with the existence of institutional technical hierarchies established by law or by contract; a doctor may in no circumstances be forced to perform acts against his or her will.” 103. In Portugal an Infectious-Diseases Control Plan (1988-98) was under way in late 1997. In the framework of this plan, a publication entitled Livro da mão cor -de- rosa (Book of the pink hand), containing a set of recommendations for the prevention and control of nosocomial infections acquired in health-care establishments, was issued in 1996. 104. In the introduction to the 1996 report reference was made to the following information: “In 1988 the Infectious-Diseases Control Plan was initiated .... It was aimed at developing the methods to be used in the study of infections .... The first study concerning the prevalence of infection was carried out in 1988 with 10,177 patients from 71 hospitals; this was followed by a second study in 1993, with 9,331 patients from 65 hospitals. Other studies were also carried out with regard to the incidence of urinary-tract infections in patients with catheters, surgical infections, and nosocomial pneumonia in intensive care, for example. These studies show that, at any given time, approximately 30 % of hospital inpatients have an infection and one-third of them acquired the infection while in hospital.” 105. The report ’ s recommendations required each health-care establishment to define a comprehensive infectious-diseases control programme, which was to be coordinated and implemented by one of the interdisciplinary infectious-diseases control commissions created that same year under an instruction issued by the Directorate General for Health. 106. The infectious-diseases control commissions were established under an instruction issued by the Directorate General for Health on 23 October 1996. According to Article 4 of this instruction these commissions were required, among other tasks, to “define, implement and monitor a system of epidemiological surveillance addressing structures, processes and outcomes with regard to situations posing the gravest threats, propose recommendations and standards for the prevention and control of infectious diseases and the corresponding monitoring arrangements, carry out epidemiological inquiries and disseminate the information within the establishment, and contribute to training within the service and to other training actions undertaken by the establishment in the field of infection control.” 107. A working group dedicated to the issue of hospital-acquired infections was established in Vila Nova de Gaia Hospital in 1994. It published, from at least 1996 onwards, an information booklet on these issues and the procedures to be adopted. 108. In the meantime, the Council of Europe recommendations concerning the control of infectious diseases, and in particular Recommendation no. R (84) 20 (see paragraph 116 below), were circulated to public and private hospitals. 109. The aforementioned Plan (see paragraph 103 above) was replaced by the National Infectious-Diseases Control Programme adopted on 14 May 1999. III. INTERNATIONAL LAW AND PRACTICE A. United Nations 1. The International Covenant on Economic, Social and Cultural Rights 110. Article 12 of the International Covenant on Economic, Social and Cultural Rights provides: “1. The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. 2. The steps to be taken by the State Parties to the present Covenant to achieve the full realization of this right shall include those necessary for: (a) The provision for the reduction of the stillbirth-rate and of infant mortality and for the healthy development of the child; (b) The improvement of all aspects of environmental and industrial hygiene; (c) The prevention, treatment and control of epidemic, endemic, occupational and other diseases; (d) The creation of conditions which would assure to all medical service and medical attention in the event of sickness.” 111. In its General Comment No. 14 on the right to the highest attainable standard of health, the Committee on Economic, Social and Cultural Rights (CESCR) held as follows: “9. ... the right to health must be understood as a right to the enjoyment of a variety of facilities, goods, services and conditions necessary for the realization of the highest attainable standard of health.” In this connection the CESCR required that the necessary public-health and health-care facilities should satisfy the following criteria: availability, accessibility, acceptability and quality. The CESCR stressed that the obligations to protect included, inter alia, the duties of States to adopt legislation or to take other measures ensuring equal access to health care and health-related services provided by third parties, as well as to ensure that medical practitioners and other health professionals met appropriate standards of education, skill and ethical codes of conduct (paragraph 35). It also required that any person or group that was the victim of a violation of the right to health should have access to effective judicial or other appropriate remedies at both national and international levels (paragraph 59). 2. The documents of the World Health Organisation (WHO) 112. The relevant parts of the World Health Organisation ’ s Declaration on the Promotion of Patients ’ Rights in Europe (1994) read as follows: “5.1 Everyone has the right to receive such health care as is appropriate to his or her health needs, including preventive care and activities aimed at health promotion. Services should be continuously available and accessible to all equitably, without discrimination and according to the financial, human and material resources which can be made available in a given society. ... 6.5 ... Where patients feel that their rights have not been respected they should be enabled to lodge a complaint ... Patients have the right to have their complaints examined and dealt with in a thorough, just, effective and prompt way and to be informed about their outcome.” 113. The WHO has also adopted a number of technical medical guidelines relating to safe health care and surgical facilities, such as the WHO guidelines for safe surgery (2009), which provide checklists and set out ten objectives and recommendations, including the use of methods known to minimise the risk of surgical site infection and the establishment, by hospitals and public health systems, of routine surgical surveillance. B. Council of Europe 1. The European Social Charter 114. Article 11 of the European Social Charter, 1961, entitled “The right to protection of health”, reads as follows: “With a view to ensuring the effective exercise of the right to protection of health, the Contracting Parties undertake, either directly or in co-operation with public or private organisations, to take appropriate measures designed inter alia : 1. to remove as far as possible the causes of ill-health; 2. to provide advisory and educational facilities for the promotion of health and the encouragement of individual responsibility in matters of health; 3. to prevent as far as possible epidemic, endemic and other diseases.” 2. The Oviedo Convention on Human Rights and Biomedicine 115. The Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine (known as the Oviedo Convention on Human Rights and Biomedicine), which was adopted in 1997 and entered into force on 1 December 1999, has been ratified by twenty-nine of the Council of Europe member States. Its relevant provisions read as follows: Article 3 – Equitable access to health care “Parties, taking into account health needs and available resources, shall take appropriate measures with a view to providing, within their jurisdiction, equitable access to health care of appropriate quality.” Article 4 – Professional standards “Any intervention in the health field, including research, must be carried out in accordance with relevant professional obligations and standards.” Article 24 – Compensation for undue damage “The person who has suffered undue damage resulting from an intervention is entitled to a fair compensation according to the conditions and procedures prescribed by law.” Article 25 – Sanctions “Parties shall provide for appropriate sanctions to be applied in the event of infringement of the provisions contained in this Convention.” 3. Recommendation Rec( 84)20 on the prevention of hospital infections 116. The Committee of Ministers, in its Recommendation Rec(84)20 on the prevention of hospital infections, recommended to the Governments of member States that they promote the application of the strategy for the prevention of hospital infections described in detail in the Appendix to the Recommendation. C. The Inter-American Court of Human Rights 117. The relevant provisions of the American Convention on Human Rights read as follows: Article 4 “1. Every person has the right to have his life respected. This right shall be protected by law and, in general, from the moment of conception. No one shall be arbitrarily deprived of his life. ...” Article 5 “1. Every person has the right to have his physical, mental, and moral integrity respected. ...” 118. In the case of Suárez Peralta v. Ecuador (Preliminary objections, merits, reparations and costs, Judgment of 21 May 2013, Series C No. 261), which concerned allegations of medical negligence, the Inter-American Court of Human Rights reiterated the obligation of the State to guarantee the right to personal integrity in the context of health, as follows: “ 132. ... States must establish an adequate normative framework that regulates the provision of health care services, establishing quality standards for public and private institutions that allow any risk of the violation of personal integrity during the provision of these services to be avoided. In addition, the State must create official supervision and control mechanisms for health care facilities, as well as procedures for the administrative and judicial protection of victims, the effectiveness of which will evidently depend on the way these are implemented by the competent administration.” IV. EUROPEAN UNION LAW A. Charter of Fundamental Rights of the European Union 119. The relevant provisions of the Charter of Fundamental Rights of the European Union read as follows: Article 2 – Right to life “1. Everyone has the right to life.” Article 35 –Healthcare “Everyone has the right of access to preventive health care and the right to benefit from medical treatment under the conditions established by national laws and practices. A high level of human health protection shall be ensured in the definition and implementation of all Union policies and activities.” B. Council Recommendation on patient safety, including the prevention and control of healthcare associated infections 120. On 9 June 2009 Council Recommendation on patient safety, including the prevention and control of healthcare associated infections (2009/C 151/01) was adopted. In particular, the text recommends that Member States: “I. 1. ... (d) [ regularly review and update] safety standards and/or best practices applicable to healthcare provided on their territory; ... (f) [ include] a specific approach to promote safe practices to prevent the most commonly occurring adverse events such as medication-related events, healthcare associated infections and complications during or after surgical intervention.” 8. ... (a) implement prevention and control measures at national or regional level to support the containment of healthcare associated infections and in particular: ... (iii) to make guidelines and recommendations available at national level.” 121. The text also recommends informing patients about: “I. 2. (b) ( iii ) complaints procedures and available remedies and redress and the terms and conditions applicable;” V. COMPARATIVE LAW 122. It transpires from the materials available to the Court on the legislation of member States of the Council of Europe that all of the thirty ‑ one member States surveyed offer a civil remedy with the possibility to claim compensation for medical negligence in either the civil or the administrative courts. In the majority of countries, liability can be both contractual and extra-contractual (for instance, in Austria, Azerbaijan, Bosnia and Herzegovina, Bulgaria, Estonia, Georgia, Germany, Italy, Luxembourg, Monaco, Poland, Spain and Switzerland). Tort liability is the exclusive or main form of liability in Lithuania, Malta, Moldova, Serbia, Russia, Ukraine and the United Kingdom. 123. It is also a common feature of all countries that medical negligence can amount to a criminal offence, either as manslaughter or as unintentional bodily injury or another offence against health (such as failure to provide assistance). In several countries, medical negligence constitutes a distinct offence (for instance, in Armenia, Bosnia and Herzegovina, Croatia, Slovenia, the former Yugoslav Republic of Macedonia and Ukraine). 124. The great majority of the countries surveyed have professional bodies (that is, medical councils, chambers, associations) with the power to impose disciplinary sanctions. In the absence of such bodies sanctions may be imposed by the head of the health establishment concerned or the Ministry of Health (for example, in Armenia and Russia). In certain countries, even if disciplinary proceedings exist, they appear to play no role in medical negligence cases, or only a very limited one (for example, Azerbaijan and Estonia). 125. Administrative complaints to various State supervisory bodies (such as the Ministry of Health, the Health Inspectorate, the Health Board, and so on) are possible in some countries including Bulgaria, Croatia, Estonia and Hungary. In Azerbaijan, Russia, Spain and Ukraine a breach of the rules and regulations relating to health care constitutes an administrative offence. 126. Finally, apart from contentious proceedings, several countries provide for a system of settlement, mediation or no-fault compensation schemes (for example, Austria, Belgium, France, Germany, Poland and the United Kingdom). THE LAW I. PRELIMINARY ISSUES A. Compliance with the six-month rule 127. The Court reiterates that the Grand Chamber is not precluded from examining, where appropriate, questions concerning the admissibility of an application under Article 35 § 4 of the Convention, as that provision enables the Court to dismiss applications it considers inadmissible “at any stage of the proceedings”. Therefore, even at the merits stage and subject to Rule 55, the Court may reconsider a decision to declare an application admissible where it concludes that it should have been declared inadmissible for one of the reasons given in the first three paragraphs of Article 35 of the Convention (see, for example, Muršić v. Croatia [GC], no. 7334/13, § 69, ECHR 2016). 128. Although the respondent State did not raise any objection before the Grand Chamber based on the six-month time limit as it had done previously before the Chamber, this issue, as a public policy rule, calls for consideration by the Court of its own motion (see Sabri Güneş v. Turkey [GC], no. 27396/06, § 29, 29 June 2012). 129. The Court reiterates that the object of the six-month time-limit under Article 35 § 1 is to promote legal certainty, by ensuring that cases raising issues under the Convention are dealt with in a reasonable time and that past decisions are not continually open to challenge. It marks out the temporal limits of supervision carried out by the organs of the Convention and signals to both individuals and State authorities the period beyond which such supervision is no longer possible (ibid., §§ 39 and 40). 130. In this regard the Court emphasises that the requirements contained in Article 35 § 1 concerning the exhaustion of domestic remedies and the six-month period are closely interrelated (see Jeronovičs v. Latvia [GC], no. 44898/10, § 75, ECHR 2016), since they are not only combined in the same Article, but also expressed in a single sentence whose grammatical construction implies such a correlation (see Gregačević v. Croatia, no. 58331/09, § 35, 10 July 2012, and the references cited therein). 131. Thus, as a rule, the six-month period runs from the date of the final decision in the process of exhaustion of domestic remedies (see Blokhin v. Russia [GC], no. 47152/06, § 106, ECHR 2016). Article 35 § 1 cannot therefore be interpreted in a manner which would require an applicant to inform the Court of his complaint before his position in connection with the matter has been finally settled at the domestic level, otherwise the principle of subsidiarity would be breached (see Mocanu and Others v. Romania [GC], nos. 10865/09, 45886/07 and 32431/08, § 260, ECHR 2014 (extracts)). 132. However, this provision allows only remedies which are normal and effective to be taken into account as an applicant cannot extend the strict time-limit imposed under the Convention by seeking to make inappropriate or misconceived applications to bodies or institutions which have no power or competence to offer effective redress for the complaint in issue under the Convention (see, for example, Fernie v. the United Kingdom ( dec. ), no. 14881/04, 5 January 2006; Beiere v. Latvia, no. 30954/05, § 3 8, 29 November 2011; and, a contrario, Hizb ut-tahrir and Others v. Germany ( dec. ), no. 31098/08, §§ 58-59, 12 June 2012, and Petrović v. Serbia, no. 40485/08, § 60, 15 July 2014). 133. The Court observes that in the Chamber judgment the Government ’ s objection as regards the six-month time limit was dismissed because the application had been lodged on 2 3 August 2013, that is, within six months following the final domestic decision, namely the Supreme Administrative Court judgment delivered on 26 February 2013 following the proceedings for civil liability. 134. At the outset, the Court stresses that determining whether a domestic procedure constitutes an effective remedy within the meaning of Article 35 § 1, which an applicant must exhaust and which should therefore be taken into account for the purposes of the six-month time-limit, depends on a number of factors, notably the applicant ’ s complaint, the scope of the obligations of the State under that particular Convention provision, the available remedies in the respondent State and the specific circumstances of the case. 135. For example, the Court has held that, in the area of unlawful use of force by State agents – and not mere fault, omission or negligence – civil or administrative proceedings aimed solely at awarding damages, rather than ensuring the identification and punishment of those responsible, were not adequate and effective remedies capable of providing redress for complaints based on the substantive aspect of Articles 2 and 3 of the Convention (see Jeronovičs, § 76, and Mocanu and Others, § 227, both cited above). It has further held that the Contracting Parties ’ obligation under Articles 2 and 3 of the Convention to conduct an investigation capable of leading to the identification and punishment of those responsible in cases of assault could be rendered illusory if, in respect of complaints under those Articles, an applicant were required to bring an action leading only to an award of damages (see Jeronovičs, cited above, § 77 ). 136. In cases such as these, therefore, the Court considered that any subsequent civil proceedings undertaken by the applicant were not an adequate and effective remedy within the meaning of Article 35 § 1 which the applicants had to exhaust and which should therefore be taken into account for the purposes of the six-month time-limit. Accordingly, the Court dismissed those cases as having been lodged out of time (see, among others, Jørgensen and Others v. Denmark ( dec. ), no. 30173/12, § 63, 28 June 2016; Narin v. Turkey, no. 18907/02, § 49, 15 December 2009; and Bedir v. Turkey ( dec. ), no. 25070/02, 2 October 2007). 137. By contrast, in medical negligence cases the Court has considered that the procedural obligation imposed by Article 2, which concerns the requirement to set up an effective judicial system, will be satisfied if the legal system affords victims a remedy in the civil courts, either alone or in conjunction with a remedy in the criminal courts, enabling any responsibility of the doctors concerned to be established and any appropriate civil redress to be obtained. It has also accepted that disciplinary measures may also be envisaged (see Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 51, ECHR 2002 ‑ I, and Vo v. France [GC], no. 53924/00, § 90, ECHR 2004 ‑ VIII). In such cases, therefore, the Court, having regard to the particular features of a respondent State ’ s legal system, has required the applicants to exhaust the legal avenues whereby they could have their complaints duly considered. This is because of the rebuttable presumption that any of those procedures, notably civil redress, are in principle apt to satisfy the State ’ s obligation under Article 2 of the Convention to provide an effective judicial system. 138. In the present case, the applicant used all the avenues of redress that were available to her in the Portuguese legal system. The Court finds that none of the proceedings instituted by her can be regarded as inappropriate or misconceived applications to bodies or institutions with no power or competence to offer effective redress for the complaint in issue under the Convention. Nor has it been demonstrated that, at the time when the applicant brought an action for compensation – the most appropriate avenue for establishing any alleged causal link between the initial surgery and Mr Fernandes ’ s tragic death three months later and for shedding light on the extent of the doctors ’ alleged responsibility for his death – it was obvious that these proceedings would be bound to fail from the outset and hence should not be taken into account for the calculation of the six-month period (see, for example, Musayeva and Others v. Russia ( dec. ), no. 74239/01, 1 June 2006, and Rezgui v. France ( dec. ), no. 49859/99, ECHR 2000-XI). 139. In the light of the above the Court considers, like the Chamber (see paragraph 133 above), that the application was not lodged out of time. B. Government ’ s preliminary objection 140. The Government asked the Court to declare the application inadmissible as being manifestly ill-founded (see paragraph 213 below). 141. The applicant did not specifically comment on this issue. 142. The Court considers that the preliminary objection raised by the Government is so closely linked to the substance of the applicant ’ s complaint that it must be joined to the merits of the application (see, for example, O ’ Keeffe v. Ireland [GC], no. 35810/09, § 121, ECHR 2014 (extracts)). II. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 143. The applicant alleged a breach of her husband ’ s right to life. She claimed that her husband had been the victim of a hospital-acquired infection and that the medical personnel had been careless and negligent in their diagnoses and treatment and in discharging her husband from hospital. In particular, she complained of delays in providing him with treatment and of the administration of medication in excessive doses. She did not, however, call into question her husband ’ s discharge from hospital authorised by Dr J.V. on 3 February 1998, that decision having been taken with her assent and that of her husband. She further complained that the authorities to which she had applied had failed to elucidate the precise cause of the sudden deterioration in the health of her husband, who had previously been perfectly fit. She also complained about the length of the domestic proceedings and the fact that she had not been informed of the exact cause of her husband ’ s death. 144. The applicant relied on Articles 2, 6 § 1 and 13 of the Convention, the first of which reads as follows: “1. Everyone ’ s right to life shall be protected by law.” 145. Reiterating that the Court was master of the characterisation to be given in law to the facts of the case and finding that these complaints covered the same ground, the Chamber found it appropriate to examine the applicant ’ s allegations solely under Article 2 of the Convention. The Grand Chamber agrees with this approach. It will therefore proceed in the same manner (see Bouyid v. Belgium [GC], no. 23380/09, § 55, ECHR 2015). A. The substantive aspect 1. The Chamber judgment 146. The Chamber held that there had been a violation of the substantive aspect of Article 2 of the Convention. It noted that the second gastroenterology expert who gave evidence before the IGS, and also the ENT and infectious-diseases panels in the proceedings before the Medical Association, had all indicated that meningitis was a complication that could arise in exceptional cases after a polypectomy. The Chamber further noted that doubts had been expressed by the infectious-diseases panel in the Medical Association proceedings as to the promptness with which the patient ’ s meningitis had been diagnosed. 147. The Chamber held the view that the mere fact that the patient had undergone a surgical operation presenting a risk of infectious meningitis should have warranted immediate medical intervention in conformity with the medical protocol on post-operative supervision. However, this had not been done. Without wishing to speculate on the chances of survival of the applicant ’ s husband if his meningitis had been diagnosed earlier, it considered that the lack of coordination between the ENT department and the emergency unit at the hospital disclosed failings in the public hospital service, depriving the patient of the possibility of accessing appropriate emergency care. This fact was considered sufficient to find that the State had failed in its obligation to protect the physical integrity of Mr Fernandes. 2. The parties ’ submissions (a) The applicant 148. The applicant submitted that, according to the more recent understanding of Article 2 of the Convention (she referred to Dodov v. Bulgaria, no. 59548/00, 17 January 2008; Mehmet Şentürk and Bekir Şentürk v. Turkey, no. 13423/09, ECHR 2013; Arskaya v. Ukraine, no. 45076/05, 5 December 2013; Asiye Genç v. Turkey, no. 24109/07, 27 January 2015; and Elena Cojocaru v. Romania, no. 74114/12, 22 March 2016), for the Court to find that there had been a violation of Article 2 under its substantive limb, it had to be established that in concrete terms the promptness and diligence which could reasonably have been expected in the circumstances of the case had been lacking and, further, that this failing had contributed to putting the victim ’ s life at risk. The applicant noted that in the aforementioned cases the factor which had weighed most heavily in the Court ’ s judgment was the absence of the timely medical treatment which, in the circumstances of each case, could reasonably have been expected and whose absence had contributed significantly to the chain of events which put at risk the life of patients who, in the end, had died. She stressed that in these various situations the Court had emphasised that there was no call to speculate on what the victims ’ chances of survival might have been if the failings identified had not occurred; what counted was the unreasonable risk to which, in the circumstances of each case, the patient had been exposed and which had contributed to the chain of events leading to his or her death. The applicant observed that, in determining the relevant facts, the Court had applied the “beyond reasonable doubt” test, according to which the requisite proof could follow from a sufficiently persuasive combination of inferences and presumptions. She submitted, contrary to the Portuguese Government ’ s view, that the Chamber judgment provided a concrete application of these principles to the facts of the case. The applicant emphasised in this connection that the Court had subsequently applied the same principles in the Elena Cojocaru case, cited above. 149. The applicant agreed with the facts as laid down in the Chamber judgment as well as the reasoning adopted in finding a substantive violation of Article 2 of the Convention. She further submitted that the Court should also take into account at least one other aggravating factor. In this connection the applicant argued that, irrespective of the origin of the bacterium which caused the meningitis, the treatment had not been administered as promptly as the situation demanded. The emergency team which had taken charge of the applicant ’ s husband at the CHNVG had been entirely unaware of, or else had disregarded, the fact that a nasal polypectomy had been performed two days earlier in the same hospital, and instead had treated the patient on the assumption that he was suffering from psychological problems. The applicant contended that the patient had not received any treatment between his arrival at the emergency department at about 1.30 a.m., and 10 a.m., when the lumbar puncture had been performed. 150. The applicant submitted that while the bacterial meningitis had not been the immediate cause of her husband ’ s death, it was undeniable that this event had given rise to the succession of clinical complications which had continued up to his death on 8 March 1998 as a direct result of septicaemia caused by peritonitis. She argued that the clinical complications from which her husband had suffered between 29 November 1997 and 8 March 1998 could not be viewed in isolation from each other, as though there was no connection between them. Relying on the report which formed the basis for the final report of the IGS, the applicant submitted that, in the present case, there had been a series of clinical complications (opportunistic infections, ulcers and other illnesses or pathological symptoms), each of which could be attributed to a greater or lesser extent to a previous event in the chain. She emphasised that the starting-point in this chain of events had been an occurrence of meningitis, attributable to a hospital-acquired bacterium, which had not been treated with the promptness the situation demanded, with the consequent need to intensify the antibiotic treatment, resulting in a worsening of the victim ’ s state of health. This had contributed to the appearance of complications – and in particular of opportunistic infections and ulcers – which, occurring in succession, had resulted in the patient ’ s death. 151. The applicant further submitted that there had been other instances of medical negligence, such as the four occasions on which her husband had been imprudently discharged from hospital (13 December 1997, 23 December 1997, 9 January 1998 and 3 February 1998). In addition, she argued that the direct cause of her husband ’ s death on 8 March 1998 undeniably amounted to medical negligence. She alleged that there had been an inexplicable delay in performing surgery, which should have taken place on 6 March but had in fact not been performed until 7 March at 8 p.m., by which time it had been too late to cure the peritonitis which had set in. In this connection she contended that it was undisputed that peritonitis, attributable in her husband ’ s case to a duodenal ulcer and the resulting perforated viscus, called for urgent surgery in order to avoid the onset of uncontrollable septicaemia, as in the present case. There was thus no reasonable explanation for the fact that the surgery had not been performed until 8 p.m. the following day. To that extent, the applicant submitted that this circumstance formed part of the series of unjustifiable delays in the delivery of appropriate medical treatment to her husband, which had deprived him of the possibility of access to such care. This constituted a further violation of the substantive limb of Article 2 of the Convention. In this connection she argued that even if the need for surgery had not become apparent until 7 March, this still did not explain why a surgeon had not been called until 3 p.m., thus leaving the patient without effective assistance until that time, and why he had been taken to the operating theatre without the necessary preparation, with the result that he had to be taken out of the theatre and then returned there around 8 p.m., by which time he had been in a very serious condition, between life and death. (b) The Government 152. The Government submitted at the outset that the validity of the contention underpinning the applicant ’ s complaint – that the entire course of her deceased husband ’ s clinical treatment had been marked by a series of interconnected shortcomings and errors – had not been demonstrated in any of the proceedings at domestic level. It had never been proven that the death of the applicant ’ s husband was attributable to medical negligence. They argued that the Chamber judgment had accepted that no medical negligence had been established and that the death of the applicant ’ s husband had not been caused by an event occurring on 29 November 1997, an event identified and characterised by the Chamber as a lack of coordination between the ENT department and the emergency department of the first hospital. This, according to the Chamber, attested to “failings in the public hospital service” and had “deprived the patient of the possibility of access to appropriate emergency care”. Notwithstanding the absence of medical negligence and of a causal link the Chamber had deemed this finding to be “sufficient for the Court to consider that the State failed in its obligation to protect his physical integrity” in breach of the substantive aspect of Article 2 of the Convention. 153. The Government, referring to the Court ’ s case-law ( Byrzykowski v. Poland, no. 11562/05, § 104, 27 June 2006; Eugenia Lazăr v. Romania, no. 32146/05, §§ 68-72, 16 February 2010; Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 130, ECHR 2014; and Powell v. the United Kingdom ( dec. ), no. 45305/99, ECHR 2000 ‑ V), maintained that in the area of health care the positive obligation arising for the Contracting States under Article 2 of the Convention with a view to preventing death caused by medical negligence was essentially of a procedural nature and involved a duty to put in place a regulatory structure requiring that hospitals, be they private or public, take appropriate steps to ensure that patients ’ lives were protected. In view of the facts of the case and the Court ’ s case-law, the Government submitted that the conclusion of the Chamber judgment raised serious doubts in that regard. 154. In the Government ’ s submission, the health-care system in Portugal at the material time was supported by a comprehensive and appropriate regulatory scheme; patients were covered by a charter which included their rights and obligations, and could present and formally lodge complaints; doctors were subject to ethical rules and, in the performance of their duties, were required to comply with good medical practice and apply technical and scientific knowledge in accordance with best practice and the relevant clinical protocols. Moreover, all hospital activity was subjected to a system of supervision and doctors who failed to comply with the duty of diligence or the ethical rules were liable to disciplinary measures; in the event of an allegation of negligence resulting in the death of a patient, criminal proceedings for the crime of negligent homicide could be instituted and an action for civil liability could be brought. 155. They noted that no expert opinions, documents or other evidence submitted at the domestic level had confirmed the allegations made by the applicant. The latter, in the Government ’ s view, had disputed the diagnoses made, the medications prescribed, the timing of the operation and the discharge decisions, with the exception of the discharge granted on 3 February 1998 which she and her husband had themselves requested. However, the Government stressed that the conclusion reached by the various domestic bodies, which had heard evidence from a great number of doctors and other experts, was that the assistance which the doctors concerned had provided to the patient had disclosed no negligent conduct, and no errors had been committed. The Government further asserted that all necessary care and treatment had been provided to the applicant ’ s husband; in particular, there had been no manifest failure to provide essential care or refusal to admit and attend to the patient. Having regard to the regulatory framework, they considered that the circumstances of the present case did not reveal any failure on the part of the Portuguese authorities to comply with the positive obligation imposed upon them by virtue of Article 2 of the Convention. 156. The Government reiterated that the Chamber judgment had been insufficiently reasoned and that it had departed from the Court ’ s existing line of case-law in an area of fundamental importance, thereby creating legal uncertainty for the State. They argued that in finding a violation of the right to life under the substantive limb of Article 2, in the absence of medical negligence, of any established causal link with the patient ’ s death, or of any failure to provide treatment by refusing to admit or attend to the patient, but simply on the basis of a possible lack of coordination between hospital services that had no consequences for the value protected by the rule, the Chamber had acted as a fourth instance and had expanded the Court ’ s area of competence to include the assessment in abstracto of the functioning of domestic health-care services. This should not be its role. 3. The third-party interveners (a) The United Kingdom Government 157. The United Kingdom Government noted that the present case raised questions as to the extent to which a Contracting State could be in breach of the substantive aspect of Article 2 of the Convention as a result of deficiencies in the provision of medical treatment. In this regard they submitted that Contracting States had a positive obligation under Article 2 § 1 to make regulations compelling hospitals to adopt appropriate measures for the protection of their patients ’ lives. A failure to discharge that obligation to regulate medical treatment could amount to a breach of the substantive aspect of Article 2, where that failure led to the death of a person within the Contracting State ’ s jurisdiction. However, in the view of the United Kingdom Government, deficiencies in the provision of medical treatment by health-care professionals and hospital staff did not engage the responsibility of the Contracting State under the substantive aspect of Article 2, but could only engage the procedural aspect of Article 2. The United Kingdom Government, referring to a number of cases determined by this Court, emphasised that previous cases had been decided consistently with these general principles. 158. As to the substantive aspect of Article 2 in connection with a failure to provide health care, the United Kingdom Government emphasised that the Convention contained no express provision recognising a right to the provision of any kind of health care, nor a right to be provided with health care of any particular standard. In this connection they submitted that the Court, in Mehmet Şentürk and Bekir Şentürk and Asiye Genç, both cited above, had relied on an obiter dictum in Cyprus v. Turkey ([GC], no. 25781/94, ECHR 2001 ‑ IV), which concerned a claim of denial of medical treatment to a whole section of a population. They further considered that in any event the circumstances in the aforementioned cases had been particular and severe. The United Kingdom Government further noted that in these cases, and also in the case of Aydoğdu v. Turkey (no. 40448/06, 30 August 2016), the Court had applied the Osman line of case-law (see Osman v. the United Kingdom, 28 October 1998, Reports of Judgments and Decisions 1998 ‑ VIII). They maintained that this case-law could not be extended to cases where medical treatment had been provided to a person but had been provided deficiently (for example, because there had been medical negligence). Finally, the United Kingdom Government observed that the Turkish cases referred to above and the case of Elena Cojocaru, cited above, suggested that there could be a breach of the substantive aspect of Article 2 where there was a dysfunction in the health ‑ care system. However, they were of the view that a dysfunction in the management of a particular hospital or hospital department, or dysfunctional coordination between two different hospitals, would not of itself be sufficient to engage the Contracting State ’ s obligations under the substantive aspect of Article 2, unless it was established that the dysfunction was the result of a failure by the Contracting State to meet its regulatory obligations referred to above. (b) The Government of Ireland 159. The Government of Ireland provided the Court with a detailed account of the regulation of medical practice in Ireland. They submitted that Ireland had made adequate provision for securing high professional standards among health professionals and the protection of the lives of patients. The Chamber judgment appeared to suggest however that, notwithstanding this, a Contracting State might still be found to be in breach of Article 2 by reason of an error of judgment on the part of a health professional. The Government of Ireland submitted that the Chamber judgment further suggested that, even where a case had been rigorously examined by an adequate national system and no error identified, the Court might nevertheless substitute its own reasoning for that of the national courts and tribunals. In this regard they submitted that the Chamber judgment in this case represented a departure from established jurisprudence. 160. Analysing the medical negligence and health-care cases dealt with by the Court over the last sixteen years, the Government of Ireland submitted that there was a consistent approach by the Court in relation to the application of Article 2 in both its substantive and procedural aspects. According to them, the principles which emerged were as follows: (1) where a Contracting State had made adequate provision for securing high professional standards among health professionals and the protection of the lives of patients, matters such as an error of judgment on the part of a health professional or negligent coordination among health professionals in the treatment of a particular patient were not sufficient of themselves to call a Contracting State to account from the standpoint of its positive obligations under Article 2 of the Convention to protect life; (2) there might be an exception where the negligence attributable to that hospital ’ s medical staff went beyond a mere error or medical negligence. These circumstances seemed to occur where the domestic courts found the relevant staff in a hospital setting responsible and liable for more than negligence and/or where there was a denial of care/medical treatment simpliciter, resulting in the patient ’ s life being put in danger. 161. The Government of Ireland submitted that no such exception had existed in the facts of the present case. They underlined the pertinence of the dissenting opinions annexed to the Chamber judgment, as well as Judge Sajó ’ s dissent in the case of Elena Cojocaru, cited above. In conclusion, the Government of Ireland submitted that the existing line of reasoning established in the case-law prior to the current case should be adopted and continued in the case at hand. In their view any departure from this case-law would lead to legal uncertainty in the application of obligations under Article 2 and would undermine the validity of domestic efforts and authorities involved in the regulation of health care, especially in circumstances where there was no causation between an alleged breach of duty and an injury or death. 4. The Court ’ s assessment (a) Summary of the relevant case-law 162. The Court is frequently called upon to rule on complaints alleging a violation of Article 2 of the Convention in the context of health care. A considerable number of these cases concern allegations of negligence occurring in the context of medical treatment in hospitals. In this regard the Court considers that the present case provides an opportunity to reaffirm and clarify the scope of the substantive positive obligations of States in such cases. 163. The Court would emphasise at the outset that different considerations arise in certain other contexts, in particular with regard to the medical treatment of persons deprived of their liberty or of particularly vulnerable persons under the care of the State, where the State has direct responsibility for the welfare of these individuals (see, for example, Slimani v. France, no. 57671/00, ECHR 2004 ‑ IX (extracts), and Centre for Legal Resources on behalf of Valentin Câmpeanu, cited above, §§ 143-44). Such circumstances are not in issue in the present case. ( i ) General principles 164. The Court reiterates that the first sentence of Article 2, which ranks as one of the most fundamental provisions in the Convention and also enshrines one of the basic values of the democratic societies making up the Council of Europe, requires the State not only to refrain from the “intentional” taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction (see Calvelli and Ciglio, § 48, and Vo, § 88, both cited above). 165. The Court has stressed many times that, although the right to health – recognised in numerous international instruments – is not as such among the rights guaranteed under the Convention and its Protocols (see Vasileva v. Bulgaria, no. 23796/10, § 63, 17 March 2016), the aforementioned positive obligation must be construed as applying in the context of any activity, whether public or not, in which the right to life may be at stake (see Centre for Legal Resources on behalf of Valentin Câmpeanu, cited above, § 130), including in the public ‑ health sphere. 166. In the particular context of health care the Court has interpreted the substantive positive obligation of the State as requiring the latter to make regulations compelling hospitals, whether private or public, to adopt appropriate measures for the protection of patients ’ lives (see, among many other authorities, Oyal v. Turkey, no. 4864/05, § 54, 23 March 2010, and Lambert and Others v. France [GC], no. 46043/14, § 140, ECHR 2015 (extracts)). 167. However, it has not excluded the possibility that the acts and omissions of the authorities in the context of public health policies, may, in certain circumstances, engage the Contacting Parties ’ responsibility under the substantive limb of Article 2 (see Powell, cited above). (ii) Case-law on medical negligence 168. In cases where allegations of medical negligence were made in the context of the treatment of a patient, the Court has consistently emphasised that, where a Contracting State has made adequate provision for securing high professional standards among health professionals and the protection of the lives of patients, matters such as an error of judgment on the part of a health professional or negligent coordination among health professionals in the treatment of a particular patient are not sufficient of themselves to call a Contracting State to account from the standpoint of its positive obligations under Article 2 of the Convention to protect life (see, among many other authorities, Powell, cited above, and Sevim Güngör v. Turkey ( dec. ), no. 75173/01, 14 April 2009). 169. To date, in cases concerning medical negligence, the Court has rarely found deficiencies in the regulatory framework of member States as such ( see Arskaya, cited above, § 91, and, a contrario, Z v. Poland, no. 46132/08, §§ 110-12, 13 November 2012; see also Altuğ and Others v. Turkey, no. 32086/07, § 73, 30 June 2015; Glass v. the United Kingdom, ( dec. ), no. 61827/00, 18 March 2003; and Sevim Güngör, cited above). 170. In the case of Arskaya v. Ukraine, cited above, the applicant alleged that her son, who had been hospitalised for pneumonia and tuberculosis, had died as a result of medical negligence on account of inadequate health-care regulations concerning patients refusing to consent to treatment. The Court, when finding a substantive violation of Article 2, noted that the local regulations governing patients ’ admission to intensive care were inadequate. It further found that there was a lack of appropriate rules for establishing patients ’ decision-making capacity, including their informed consent to treatment. It considered therefore that the authorities had not taken sufficient steps to put in place a regulatory framework ensuring that the life of the applicant ’ s son was properly protected by law as required by Article 2 of the Convention ( ibid. §§ 84-91). 171. In a number of cases the Court has also addressed the substance of the applicants ’ medical negligence claims. However, in all those cases, such claims were considered unfounded on the facts because no medical negligence had been established at the domestic level, notably by medical experts (see, for example, Skraskowski v. Poland ( dec. ), no. 36420/97, 6 April 2000; Sieminska v. Poland, no. 37602/97, 29 March 2001; Buksa v. Poland ( dec. ), no. 75749/13, § 13, 31 May 2016; and Mihu v. Romania, no. 36903/13, § 67, 1 March 2016). The Court reiterates that it is not for it to speculate, on the basis of the medical information submitted to it, on whether the conclusions of the medical experts on which domestic court decisions were founded were correct (see Sayan v. Turkey, no. 81277/12, § 112, 11 October 2016, and Balcı v. Turkey ( dec. ), no. 58194/10, § 45, 20 October 2015, and the cases cited therein). 172. The Court has usually reviewed such factual issues under the procedural limb, considering that the events leading to the death of the patient and the responsibility of the health professionals involved were matters which must be addressed from the angle of the adequacy of the mechanisms that were in place for shedding light on the course of those events, allowing the facts of the case to be exposed to public scrutiny, not least for the benefit of the applicants ( see, for example, Trzepalko v. Poland ( dec. ), no. 25124/09, § 24, 13 September 2011; Oyal, cited above; Eugenia Lazăr, cited above, §§ 69-70; Rinkūnienė v. Lithuania ( dec. ), no. 55779/08, 1 December 2009; and Zafer Öztürk v. Turkey, no. 25774/09, § 46, 21 July 2015). (iii) Case-law on denial of health care 173. The Court has further held that an issue may arise under Article 2 where it is shown that the authorities of a Contracting State have put an individual ’ s life at risk through the denial of the health care which they have undertaken to make available to the population generally (see Cyprus v. Turkey, cited above, § 219). 174. Until recently, the type of cases which were examined by the Court with reference to the aforementioned principle concerned applicants who were claiming that the State should pay for a particular form of conventional treatment because they were unable to meet the costs it entailed (see, for example, Nitecki v. Poland ( dec. ), no. 65653/01, 21 March 2002; Pentiacova and Others v. Moldova ( dec. ), no. 14462/03, ECHR 2005 ‑ I; Gheorghe v. Romania ( dec. ), no. 19215/04, 22 September 2005; and Wiater v. Poland ( dec. ), no. 42290/08, 15 May 2012) or that they should have access to unauthorised medicinal products for medical treatment (see Hristozov and Others v. Bulgaria, nos. 47039/11 and 358/12, ECHR 2012 (extracts)). The Court did not find a breach of Article 2 in any of these cases, either because it considered that sufficient medical treatment and facilities had been provided to the applicants on an equal footing with other persons in a similar situation (see Nitecki and Gheorghe, both cited above) or because the applicants had failed to adduce any evidence that their lives had been put at risk (see Pentiacova and Others, cited above). In Hristozov and Others, cited above, the Court did not find fault with the regulations governing access to unauthorised medicinal products in situations where conventional forms of medical treatment appeared insufficient, and considered that Article 2 of the Convention could not be interpreted as requiring access to unauthorised medicinal products for terminally-ill patients to be regulated in a particular way ( ibid. § 108). 175. In this connection the Court reiterates that issues such as the allocation of public funds in the area of health care are not a matter on which the Court should take a stand and that it is for the competent authorities of the Contracting States to consider and decide how their limited resources should be allocated, as those authorities are better placed than the Court to evaluate the relevant demands in view of the scarce resources and to take responsibility for the difficult choices which have to be made between worthy needs (see Wiater, § 39, Pentiacova and Others and Gheorghe, all cited above). 176. The Court found a procedural violation in the case of Panaitescu v. Romania ( no. 30909/06, 10 April 2012) where it considered that the State had failed to prevent the applicant ’ s life from being avoidably put at risk by not providing him with the appropriate health care as ordered by the national courts. This was a very exceptional case which concerned the refusal of the domestic authorities to provide the patient with a particular, costly cancer drug free of charge, in circumstances where the domestic courts had found that the individual in question had such an entitlement. (iv) Recent case-law developments 177. The Court observes that the parties, in their submissions, focused on some recent cases concerning a failure to provide emergency medical care in the context of pre- or post-natal care. 178. A substantive violation of Article 2 was found in the context of denial of health care in Mehmet Şentürk and Bekir Şentürk, cited above, where the first applicant ’ s wife, who was pregnant, died in an ambulance because of the doctors ’ refusal to carry out an urgent operation owing to her inability to pay medical fees. In this connection the Court held that it was not disputed that the patient had arrived at the hospital in a serious condition and that she required emergency surgery, failing which there were likely to be extremely grave consequences. While the Court did not want to speculate on the chances of survival of the first applicant ’ s wife had she received medical treatment, it considered that the medical staff had been fully aware that transferring the patient to another hospital would put her life at risk. In this regard it took note that domestic law did not have any provisions in this area capable of preventing the failure to give the patient the medical treatment she had required on account of her condition. The Court therefore considered that the first applicant ’ s wife, victim of a flagrant malfunctioning of the relevant hospital departments, had been deprived of the possibility of access to appropriate emergency care ( ibid. §§ 96-97). 179. In the case of Asiye Genç, cited above, the applicant ’ s new ‑ born baby died in an ambulance after being refused admission to a number of public hospitals owing to a lack of space or adequate equipment in their neonatal units. The Court, considering that the State had not sufficiently ensured the proper organisation and functioning of the public hospital service, or more generally its health protection system, held that the applicant ’ s son had been the victim of a dysfunction in the hospital services, as he had been deprived of access to appropriate emergency treatment. It emphasised that the baby had not died because there had been negligence or an error of judgment in his medical care, but because no treatment whatsoever had been offered. The Court therefore concluded that there had been a refusal to provide medical treatment, resulting in the patient ’ s life being put in danger (ibid. §§ 80-82). 180. In Elena Cojocaru, cited above, the applicant ’ s pregnant daughter, who was suffering from a serious pre-natal condition, died after a doctor at the public hospital had refused to perform an emergency C-section and she was transferred to another hospital, 150 km away, without a doctor ’ s supervision. The new-born baby died two days later. The Court found that the circumstances in that case constituted a failure to provide adequate emergency treatment ( ibid. § 125) since, irrespective of the reason, the patient ’ s transfer had delayed the emergency treatment she needed. The apparent lack of coordination of the medical services and the delay in administering the appropriate emergency treatment attested to a dysfunction in public hospital services ( ibid. § 111). 181. The case of Aydoğdu, cited above, concerned the death of a premature baby due to a combination of circumstances, notably on account of a dysfunction in the health system in a particular region of Turkey ( ibid. §§ 55 and 76). In that case the Court considered that the authorities responsible for health care must have been aware at the time of the events that there was a real risk to the lives of multiple patients, including the applicant ’ s baby, owing to a chronic state of affairs which was common knowledge, and yet had failed to take any of the steps that could reasonably have been expected of them to avert that risk. The Court noted that the Government had not explained why taking such steps would have constituted an impossible or disproportionate burden for them, bearing in mind the operational choices that needed to be made in terms of priorities and resources ( ibid. § 87). It therefore held that Turkey had not taken sufficient care to ensure the proper organisation and functioning of the public hospital service in this region of the country, in particular because of the lack of a regulatory framework laying down rules for hospitals to ensure protection of the lives of premature babies. The Court, noting that, apart from the negligent behaviour of the medical staff, there was a causal link between the baby ’ s death and the above ‑ mentioned structural problems, held that the baby had been the victim of negligence and structural deficiencies. This had effectively prevented her from receiving appropriate emergency treatment and amounted to a refusal to provide medical treatment, resulting in the patient ’ s life being put in danger ( ibid. § 88). 182. The predominant features which stand out in the aforementioned cases - apart from the case of Elena Cojocaru which follows the line taken in the Chamber judgment in the present case - clearly demonstrate that the Court has distinguished these cases, where there is an arguable claim of a denial of immediate emergency care, from cases which concern allegations of mere medical negligence (see Mehmet Şentürk and Bekir Şentürk, §§ 85, 104 and 105; Aydoğdu, §§ 62, 76 and 80; and Asiye Genç, §§ 73, 76 and 82, all cited above; see also M. v. Turkey, no. 4050/10 ( dec ), 15 October 2013, and Sayan, cited above, §§ 111-12, where the applicants were unable to substantiate the alleged denial of health care). Thus, the approach adopted in those cases cannot be transposed to cases where the allegations concern mere medical negligence. 183. These cases are, in the Court ’ s view, exceptional ones in which the fault attributable to the health-care providers went beyond a mere error or medical negligence. They concerned circumstances where the medical staff, in breach of their professional obligations, failed to provide emergency medical treatment despite being fully aware that a person ’ s life would be put at risk if that treatment was not given (see Mehmet Şentürk and Bekir Şentürk, cited above, § 104). 184. Moreover, as observed by the United Kingdom Government, the Court ’ s approach, particularly in the case of Aydoğdu, cited above, is akin to the test which it applies when examining the substantive positive obligation of the State to undertake preventive operational measures to protect an individual whose life is imminently at real risk (see, for general principles, Osman, cited above, §§ 115-16 ). In Aydoğdu the failure to provide emergency medical treatment resulted from a dysfunction in the hospital services in that particular region, a situation of which the authorities were or ought to have been aware but which they had failed to address by undertaking the necessary measures to prevent the lives of patients being put at risk. In this regard the Court emphasises that the dysfunctioning of the hospital services referred to in Aydoğdu and Asiye Genç, both cited above, did not concern negligent coordination between different hospital services or between different hospitals vis-à-vis a particular patient. It concerned a structural issue linked to the deficiencies in the regulatory framework (see Aydoğdu, cited above, § 87). (b) The Court ’ s approach 185. Having regard to its case-law summarised above, the Court considers that the approach adopted hitherto should be clarified. 186. In this regard the Court reaffirms that in the context of alleged medical negligence, the States ’ substantive positive obligations relating to medical treatment are limited to a duty to regulate, that is to say, a duty to put in place an effective regulatory framework compelling hospitals, whether private or public, to adopt appropriate measures for the protection of patients ’ lives. 187. Even in cases where medical negligence was established, the Court would normally find a substantive violation of Article 2 only if the relevant regulatory framework failed to ensure proper protection of the patient ’ s life. The Court reaffirms that where a Contracting State has made adequate provision for securing high professional standards among health professionals and the protection of the lives of patients, matters such as an error of judgment on the part of a health professional or negligent coordination among health professionals in the treatment of a particular patient cannot be considered sufficient of themselves to call a Contracting State to account from the standpoint of its positive obligations under Article 2 of the Convention to protect life (see, among many other authorities, Powell and Sevim Güngör, both cited above). 188. For the Court ’ s examination of a particular case, the question whether there has been a failure by the State in its regulatory duties calls for a concrete assessment of the alleged deficiencies rather than an abstract one. In this regard, the Court reiterates that its task is not normally to review the relevant law and practice in abstracto, but to determine whether the manner in which they were applied to, or affected, the applicant gave rise to a violation of the Convention (see Roman Zakharov v. Russia [GC], no. 47143/06, § 164, ECHR 2015 and the cases cited therein ). Therefore, the mere fact that the regulatory framework may be deficient in some respect is not sufficient in itself to raise an issue under Article 2 of the Convention. It must be shown to have operated to the patient ’ s detriment (compare and contrast Z v. Poland, cited above, §§ 110-12, and Arskaya, cited above, §§ 84-91). 189. It must, moreover, be emphasised that the States ’ obligation to regulate must be understood in a broader sense which includes the duty to ensure the effective functioning of that regulatory framework. The regulatory duties thus encompass necessary measures to ensure implementation, including supervision and enforcement. 190. On the basis of this broader understanding of the States ’ obligation to provide a regulatory framework, the Court has accepted that, in the very exceptional circumstances described below, the responsibility of the State under the substantive limb of Article 2 of the Convention may be engaged in respect of the acts and omissions of health-care providers. 191. The first type of exceptional circumstances concerns a specific situation where an individual patient ’ s life is knowingly put in danger by denial of access to life-saving emergency treatment ( see, for example, Mehmet Şentürk and Bekir Şentürk, and, by contrast, Sayan, both cited above). It does not extend to circumstances where a patient is considered to have received deficient, incorrect or delayed treatment. 192. The second type of exceptional circumstances arises where a systemic or structural dysfunction in hospital services results in a patient being deprived of access to life-saving emergency treatment and the authorities knew about or ought to have known about that risk and failed to undertake the necessary measures to prevent that risk from materialising, thus putting the patients ’ lives, including the life of the particular patient concerned, in danger (see, for example, Asiye Genç and Aydoğdu, both cited above). 193. The Court is aware that on the facts it may sometimes not be easy to distinguish between cases involving mere medical negligence and those where there is a denial of access to life-saving emergency treatment, particularly since there may be a combination of factors which contribute to a patient ’ s death. 194. However, the Court reiterates at this juncture that, for a case to fall into the latter category, the following factors, taken cumulatively, must be met. Firstly, the acts and omissions of the health-care providers must go beyond a mere error or medical negligence, in so far as those health-care providers, in breach of their professional obligations, deny a patient emergency medical treatment despite being fully aware that the person ’ s life is at risk if that treatment is not given (see Mehmet Şentürk and Bekir Şentürk, cited above, § 104). 195. Secondly, the dysfunction at issue must be objectively and genuinely identifiable as systemic or structural in order to be attributable to the State authorities, and must not merely comprise individual instances where something may have been dysfunctional in the sense of going wrong or functioning badly (see, in particular, Aydoğdu, cited above, § 87, and, by contrast, Eugenia Lazăr, cited above, §§ 69-70). 196. Thirdly, there must be a link between the dysfunction complained of and the harm which the patient sustained. Finally, the dysfunction at issue must have resulted from the failure of the State to meet its obligation to provide a regulatory framework in the broader sense indicated above (see paragraph 189 above and, for example, Mehmet Şentürk and Bekir Şentürk, cited above, § 96, and Aydoğdu, cited above, §§ 87-88). (c) Application of those criteria to the present case 197. The Court observes that, in the instant case, the applicant did not allege or imply that her husband ’ s death had been caused intentionally. She submitted that her husband had lost his life as a result of a hospital-acquired infection and of various instances of medical negligence which occurred throughout his treatment, and that the doctors in charge of treating him had failed to undertake the necessary measures to save her husband ’ s life. In particular, she claimed that her husband had been infected at the hospital by the Pseudomonas cepacia bacterium, which had caused her husband ’ s meningitis; that a serious error of diagnosis had been made when her husband had attended the emergency department of the CHVNG on 29 November 1997; that this delay in diagnosis had allowed a life-threatening infection to develop, which had then had to be treated with very high doses of medication with extremely damaging gastrointestinal side-effects; that the decision to discharge her husband from the CHVNG on various dates had not been accompanied by the requisite medical follow-up; and that the perforated duodenal ulcer had been diagnosed well before the surgery performed on 7 March 1998. 198. At the outset, the Court emphasises that it is not for the Court to call into question the medical professionals ’ assessment of the health status of the now deceased patient, or their decisions regarding how he should have been treated (see Glass, cited above). Those clinical assessments and decisions were made against the background of the patient ’ s state of health at the time and the conclusions of the medical staff as to what steps needed to be taken for his treatment. In this connection the Court observes that the medical treatment provided to the applicant ’ s husband was subjected to domestic scrutiny and that none of the judicial or disciplinary bodies which examined the applicant ’ s allegations ultimately found any fault with his medical treatment. Moreover, while some experts voiced concerns or criticism with regard to certain aspects of his treatment, none of the medical expert evidence conclusively established the existence of medical negligence in the treatment of the applicant ’ s husband. 199. The Court reiterates in this regard that, except in cases of manifest arbitrariness or error, it is not the Court ’ s function to call into question the findings of fact made by the domestic authorities, particularly when it comes to scientific expert assessments, which by definition call for specific and detailed knowledge of the subject (see Počkajevs v. Latvia ( dec. ), no. 76774/01, 21 October 2004). It follows that the examination of the circumstances leading to the death of the applicant ’ s husband and the alleged responsibility of the health professionals involved are matters which must be addressed from the angle of the adequacy of the mechanisms in place for shedding light on the course of those events. These aspects fall to be examined under the procedural obligation of the State as addressed below (see, among other authorities, Eugenia Lazăr, § 70; Powell ( dec. ); Sevim Güngör ( dec. ); and Mihu, § 68, all cited above). 200. The Court observes that in the present case the applicant did not complain that her husband had been denied access to medical treatment in general or emergency treatment in particular. Nor is there any information in the case file which would suggest such an issue in the present case. Rather, the applicant complained that the medical treatment provided to her husband had been deficient because of the negligence of the doctors who had treated him. In the Court ’ s view, an alleged error in diagnosis leading to a delay in the administration of proper treatment, or an alleged delay in performing a particular medical intervention, cannot in themselves constitute a basis for considering the facts of this case on a par with those concerning denial of healthcare. 201. Moreover, the Court considers that no sufficient evidence has been adduced in the present case to demonstrate that there existed, at the material time, any systemic or structural dysfunction affecting the hospitals where the applicant ’ s husband was treated, which the authorities knew or ought to have known about and in respect of which they failed to undertake the necessary preventive measures, and that such a deficiency contributed decisively to the death of the applicant ’ s husband (compare Asiye Genç, § 80, and Aydoğdu, § 87, both cited above). In this respect, while the Court does not disregard the critical remarks which were made by the infectious ‑ diseases panel (see paragraph 53 above), it observes, firstly, that this panel neither mentioned any supporting evidence for these general remarks nor considered that this alleged deficiency contributed decisively to the death of the applicant ’ s husband. Secondly, these views were not endorsed by the Medical Association ’ s regional disciplinary council for the North region in its decision, which was given after having examined the conclusions of five different specialist panels, including that of the infectious ‑ diseases panel. Finally, no similar views were mentioned by any other experts who gave evidence in the different proceedings at the national level. 202. It has not been demonstrated, either, that the alleged fault attributable to the health-care professionals went beyond a mere error or medical negligence or that the health-care professionals involved in the treatment of the applicant ’ s husband failed, in breach of their professional obligations, to provide emergency medical treatment to him despite being fully aware that his life was at risk if that treatment was not given. In this regard the Court, contrary to the Chamber ’ s finding, considers that the alleged lack of coordination between the ENT department of the CHVNG and the hospital ’ s emergency department does not, by itself, amount to a dysfunction in hospital services capable of engaging the State ’ s responsibility under Article 2. In the present case, the Court does not have at its disposal any evidence or other elements that would enable it to make any findings or reach any conclusions establishing a situation of structural or systemic dysfunctions in the health-care services in question. 203. In view of the above considerations, the Court takes the view that the present case concerns allegations of medical negligence. In these circumstances Portugal ’ s substantive positive obligations are limited to the setting-up of an adequate regulatory framework compelling hospitals, whether private or public, to adopt appropriate measures for the protection of patients ’ lives (see paragraphs 186 and 189 above). 204. Having regard to the detailed rules and standards laid down in the domestic law and practice of the respondent State in the area under consideration (see paragraphs 88-109 above), the Court considers that the relevant regulatory framework does not disclose any shortcomings as regards the State ’ s obligation to protect the right to life of the applicant ’ s husband. Nor has the applicant argued otherwise. 205. Therefore, the Court finds that there has been no violation of Article 2 of the Convention in its substantive aspect. B. The procedural aspect 1. The Chamber judgment 206. The Chamber found that there had been a violation of the procedural aspect of Article 2 of the Convention. It considered at the outset that the Portuguese legal system provided citizens with means which, theoretically, met the requirements of Article 2 of the Convention. 207. With regard, however, to the effectiveness of the mechanisms the Chamber noted, firstly, the excessive length of the domestic proceedings before the IGS, the Vila Nova de Gaia District Court and the Oporto Administrative and Fiscal Court, which did not meet the requirement of promptness under the procedural limb of Article 2 of the Convention. Secondly, it considered that none of the decisions taken, nor any of the experts ’ assessments presented, had addressed satisfactorily the question of the possible causal link between the various illnesses suffered by the patient two days after the surgery. The Chamber observed that in each set of proceedings the events had been described in chronological order in isolation from each other. Finally, the Chamber considered that if meningitis was a possible complication following this type of surgery, then the issue as to whether the applicant ’ s husband had been duly informed of the risks he faced so that he could give his informed consent had to be addressed by the domestic courts. No explanation had been provided in the domestic proceedings regarding the pre- and post ‑ operative medical protocol for this surgery. The Chamber therefore considered that the domestic authorities had not dealt with the applicant ’ s case concerning her husband ’ s death in a manner compatible with the procedural requirements of Article 2 of the Convention. 2. The parties ’ submissions (a) The applicant 208. The applicant submitted that where a death occurred in a hospital without the cause being clarified, there was in principle an obligation to establish an appropriate procedural mechanism for determining that cause, for holding any persons at fault to account and for correcting any shortcomings in the functioning of the system. In this regard she stressed that she had consistently set in motion the appropriate mechanisms at the domestic level. According to the Court ’ s case-law, compliance with the procedural obligation under Article 2 required: ( i ) that effective legal mechanisms exist for establishing the facts and the responsibility of those at fault; (ii) that the task of establishing such facts and responsibilities be assumed by impartial persons; (iii) that the procedures concerned be set in motion and carried through in good time and with suitable promptness, without unnecessary or unjustified delays; and (iv) that any specific steps required by the circumstances be taken. 209. In this regard the applicant did not contest that the first two requirements had been satisfied in the circumstances of the present case. However, she claimed that the national authorities had failed to react to the situation with the necessary promptness, responsiveness and diligence, as established in paragraphs 132-37 of the Chamber judgment, with which she agreed. She further considered that there had been a number of failings which had compromised the decision-making process. Firstly, as the Chamber had noted, no comprehensive, thorough and satisfactory assessment had been made by the domestic authorities. Secondly, as the Chamber had likewise emphasised, the risks attendant on the intended surgery had not been made clear to the patient. Thirdly, the authorities had not even tried to determine the origin of the bacterium which had caused the meningitis and, fourthly, in the absence of a properly substantiated explanation for the chain of events in question an autopsy should have been mandatory. (b) The Government 210. The Government submitted that the death of a patient in hospital could not be compared to the death of someone who was under the control of the authorities or the deaths of vulnerable persons in the care of public services. They considered that the death of a patient following a medical procedure in hospital did not require the automatic institution of an inquiry, particularly where the death did not give rise to doubts as to its cause or raise suspicions as to the existence of an intentional act or medical negligence. In the Government ’ s view an examination of all the circumstances was, however, necessary in order to determine the cause of death, with the performance of an autopsy being required only where it had not been possible to determine that cause. The Government submitted that, in the present case, there was no evidence or indication of medical negligence, and the cause of death was known. They stated that, pursuant to Article 54 of Legislative Decree no. 11/98 of 24 January 1998, autopsies were undertaken in the event of violent death or where the cause of death was unknown. 211. They noted, nonetheless, that when the applicant had made her allegations, a number of proceedings of a different nature had been initiated and had gone on to run their full course; all the actions that were requested had been carried out, as had all the appropriate steps that had been necessary in order to help establish the facts and determine possible responsibilities. The Government provided a detailed description of the steps taken in the course of each set of proceedings. They maintained that the courts and the disciplinary bodies involved in the present case had had a clear and detailed set of facts at their disposal concerning, in particular, the causes of death, which had allowed them to conclude without any doubt that there had been no medical negligence. In this connection the Government stressed that the applicant had at every stage participated in the proceedings, presented her arguments and evidence in full adversarial proceedings, lodged complaints and appealed against decisions. Moreover, the judicial proceedings had taken place before independent and impartial judges and the hearings had been public. 212. The Government conceded that the proceedings had been lengthy. However, they considered that this had not stood in the way of effective observance of the procedural obligation. They argued that the length of the criminal and civil proceedings and those before the IGS could be attributed precisely to the efforts made by the competent authorities to address with rigour all the facts of the case and all the doubts expressed by the applicant. In such circumstances, the Government considered that the duration of the proceedings could not be a ground for finding a violation of the procedural obligation under Article 2 of the Convention. At most, they argued, the lengthy proceedings might breach Article 6 § 1 of the Convention, which was incidentally the complaint lodged by the applicant. 213. The Government reiterated that, in accordance with the Court ’ s case ‑ law, the obligation deriving from the procedural limb of Article 2 was one of means and not of result. In this regard, if some doubts had persisted concerning the events surrounding the applicant ’ s husband ’ s death, this was simply because there were always situations in which medical science was unable to predict, diagnose or explain. However, this was not in any way attributable to a lack of effort on the part of the domestic authorities. The Government therefore considered that the procedural obligations deriving from Article 2 of the Convention had been fulfilled in the present case. Accordingly, they called for the application to be rejected as inadmissible under Article 35 § 4 of the Convention, on the ground that it was manifestly ill-founded. 3. The Court ’ s assessment (a) General principles 214. The Court has interpreted the procedural obligation of Article 2 in the context of health care as requiring States to set up an effective and independent judicial system so that the cause of death of patients in the care of the medical profession, whether in the public or the private sector, can be determined and those responsible made accountable (see, among other authorities, Šilih v. Slovenia [GC], no. 71463/01, § 192, 9 April 2009, and the cases cited therein). 215. While, in some exceptional situations, where the fault attributable to the health-care providers went beyond a mere error or medical negligence, the Court has considered that compliance with the procedural obligation must include recourse to criminal law (see, for example, Mehmet Şentürk and Bekir Şentürk, §§ 104-105, and Asiye Genç, § 73, both cited above), in all other cases where the infringement of the right to life or to personal integrity is not caused intentionally, the procedural obligation imposed by Article 2 to set up an effective and independent judicial system does not necessarily require the provision of a criminal-law remedy (see paragraph 137 above; see also Cevrioğlu v. Turkey, no. 69546/12, § 54, 4 October 2016 ). 216. The Court reiterates that the choice of means for ensuring the positive obligations under Article 2 is in principle a matter that falls within the Contracting State ’ s margin of appreciation. There are different avenues for ensuring Convention rights, and even if the State has failed to apply one particular measure provided by domestic law, it may still fulfil its positive duty by other means (see Cevrioğlu, cited above, § 55 ). However, for this obligation to be satisfied, such proceedings must not only exist in theory but also operate effectively in practice (see, for example, Byrzykowski, cited above, § 105, and Spyra and Kranczkowski v. Poland, no. 19764/07, § 88, 25 September 2012). 217. A requirement of independence of the domestic system set up to determine the cause of death of patients in the care of the medical profession is implicit in this context. This requires not only a lack of hierarchical or institutional connection but also that all parties tasked with conducting an assessment in the proceedings for determining the cause of death of patients enjoy formal and de facto independence from those implicated in the events (see Bajić v. Croatia, no. 41108/10, § 90, 13 November 2012). This requirement is particularly important when obtaining medical reports from expert witnesses (see Karpisiewicz v. Poland ( dec. ), no. 14730/09, 11 December 2012), as the medical reports of expert witnesses are very likely to carry crucial weight in a court ’ s assessment of the highly complex issues of medical negligence, which gives them a particularly important role in the proceedings (see Bajić, cited above, § 95). 218. Likewise, the procedural obligation under Article 2 in the context of health care requires, inter alia, that the proceedings be completed within a reasonable time (see Šilih, cited above, § 196). In that connection the Court emphasises that, apart from the concern for the respect of the rights inherent in Article 2 of the Convention in each individual case, more general considerations also call for a prompt examination of cases concerning medical negligence in a hospital setting. Knowledge of the facts and of possible errors committed in the course of medical care is essential to enable the institutions and medical staff concerned to remedy the potential deficiencies and prevent similar errors. The prompt examination of such cases is therefore important for the safety of all users of health-care services (see Oyal, cited above, § 76). 219. This is why the Court has held that, in Article 2 cases, particularly in those concerning proceedings instituted to elucidate the circumstances of an individual ’ s death in a hospital setting, the lengthiness of proceedings is a strong indication that the proceedings were defective to the point of constituting a violation of the respondent State ’ s positive obligations under the Convention, unless the State has provided highly convincing and plausible reasons to justify the length of the proceedings (see, for example, Bilbija and Blažević v. Croatia, no. 62870/13, § 107, 12 January 2016). 220. Unlike in cases concerning the lethal use of force by State agents, where the competent authorities must of their own motion initiate investigations, in cases concerning medical negligence where the death is caused unintentionally, the States ’ procedural obligations may come into play upon the institution of proceedings by the deceased ’ s relatives (see Šilih, cited above, § 156). 221. Finally, the Court stresses that this procedural obligation is not an obligation of result but of means only ( ibid., § 193). Thus, the mere fact that proceedings concerning medical negligence have ended unfavourably for the person concerned does not in itself mean that the respondent State has failed in its positive obligation under Article 2 of the Convention (see Besen v. Turkey ( dec. ), no. 48915/09, § 38 in fine, 19 June 2012, and E.M. and Others v. Romania ( dec. ), no. 20192/07, § 50, 3 June 2014). (b) Application of these principles to the present case 222. The Court observes that the applicant ’ s husband, who had been in good health, underwent a routine operation in hospital and ended up suffering from bacterial meningitis, ulcers, colitis and other medical complications which led to his death three months later from septicaemia caused by peritonitis and a perforated viscus. In view of the aforementioned sequence of events, the Court considers that the applicant had arguable grounds to suspect that her husband ’ s death could have been the result of medical negligence. The respondent State ’ s duty to ensure compliance with the procedural obligations arising under Article 2, in the proceedings instituted with regard to her husband ’ s death, is therefore engaged in the present case (see Šilih, cited above, § 197). This obligation came into play upon the institution of proceedings by the applicant ( ibid., § 156). 223. The Court notes that in cases of medical negligence Portuguese law provides, in addition to the possibility of criminal proceedings, for the option of bringing proceedings for civil liability in the administrative courts against public hospitals. The hospitals may in turn be entitled to claim reimbursement of the damages payable from the officials who acted in breach of their professional duty. Furthermore, an application may be made to the Ministry of Health and the Medical Association seeking to establish disciplinary liability on the part of members of the health-care profession. 224. On this basis the Court concludes that the Portuguese legal system offers litigants remedies which, in theory, meet the requirements of the procedural obligations under Article 2. The applicant has not argued otherwise. 225. In the instant case, the applicant made use of all of the procedures mentioned above. The question is therefore whether, in the concrete circumstances of the case, given the fundamental importance of the right to life guaranteed under Article 2 of the Convention and the particular weight the Court has attached to the procedural requirement under that provision, the legal system as a whole dealt adequately with the case at hand (see Dodov, cited above, § 86; Arskaya, cited above, § 66; and Kudra v. Croatia, no. 13904/07, § 107, 18 December 2012 ). 226. At the outset the Court observes that the applicant did not contest the independence and impartiality of the domestic authorities or the experts who gave evidence in the various proceedings. It further considers that the applicant did have the possibility to participate actively in the different proceedings and availed herself of her procedural rights to influence their course. There is nothing in the case file to demonstrate – nor has the applicant argued before the Grand Chamber – that she was placed at a procedural disadvantage vis-à-vis the medical institutions or doctors in any of these proceedings. It therefore remains to be ascertained whether the domestic proceedings were effective in terms of being thorough, prompt and concluded within a reasonable time. 227. As regards the thoroughness, the Court finds it appropriate to respond first to the specific complaints raised by the applicant in her written submissions regarding the lack of an autopsy and of her husband ’ s consent to his operation (see paragraph 209 above). As regards the first of these issues, the Court agrees with the Chamber ’ s view that the cause of the applicant ’ s husband ’ s death had not raised any doubts which would have required an autopsy to be performed under the statutory provisions in that regard. As to the second issue, in the absence of a specific substantive complaint on the matter, the Court finds that the domestic judicial and other bodies cannot be faulted for not delving into that issue in depth (see, for example, Vasileva, cited above, § 76). 228. The Court will now proceed with the examination of the manner in which the domestic proceedings were conducted. 229. As regards the proceedings before the IGS the Court observes, firstly, that it took the IGS two years to order the opening of an investigation, and a further year to appoint an inspector to head the investigation. Secondly, evidence was heard from the applicant for the first time almost three years and six months after she had contacted the authorities. The investigation before this body therefore lacked promptness. The Court further observes that the proceedings before the IGS had already lasted for slightly more than seven years and ten months before the applicant was informed that the disciplinary proceedings initiated against Dr J.V. would be stayed pending the outcome of the criminal proceedings. During this period the Inspector ’ s report was set aside twice by the Inspector General for Health in order to obtain additional information or to order fresh expert assessments to be carried out by different experts in the fields of internal medicine and gastroenterology. The successive adoption of such decisions within one set of proceedings disclosed, in the particular circumstances of the present case, a deficiency in the manner in which the Inspector General investigated the case. 230. As to the proceedings before the Medical Association, the Court observes that the latter responded promptly to the applicant ’ s request by seeking the opinions of five of its specialist panels immediately after receiving the patient ’ s medical records, and that the overall length of the proceedings before the Medical Association was approximately four years and five months at two levels. This cannot be considered per se as unreasonable. However, the Court cannot lose sight of the fact that the proceedings before this specialised body consisted merely in examining the patient ’ s medical records and the opinions of the specialist panels. The proceedings were written and no evidence was heard. Seen from this angle and in the absence of any explanation from the Government, the duration of these proceedings was also unreasonable. 231. In view of the above, the Court considers that the disciplinary proceedings in the present case can hardly be regarded as effective for the purposes of Article 2. It is further necessary to examine the effectiveness of the criminal proceedings. 232. In this connection the Court notes that, in the instant case, there is nothing to indicate that the death of the applicant ’ s husband was caused intentionally, and the circumstances in which it occurred were not such as to raise suspicions in that regard. Therefore, Article 2 did not necessarily require a criminal-law remedy. However, if deemed effective, such proceedings would by themselves be capable of satisfying the procedural obligation of Article 2 (see Šilih, cited above, § 202 ). 233. The Court observes, firstly, that the prosecuting authorities initiated criminal proceedings against Dr J.V. merely on the basis of the report adopted by the Inspector in the proceedings before the IGS, without conducting any further investigation (see paragraph 62 above). As a result the criminal proceedings were concerned only with the narrow issue set out in the charges that had been brought, and did not deal with any of the other instances of alleged medical negligence complained of by the applicant. This in itself is sufficient to consider that they were deficient. Having regard to the limited scope of the criminal proceedings, the applicant could not be faulted for not appealing against the court ’ s judgment. Secondly, the proceedings were neither prompt nor was their overall duration reasonable. No significant procedural steps – save for those mentioned in paragraphs 60 and 61 above – were undertaken by the prosecuting authorities between 29 April 2002 and 7 December 2007, a period of almost five years and seven months. The proceedings in total lasted for six years, eight months and nineteen days. 234. In view of the above shortcomings, the Court considers that the criminal proceedings in the present case were also ineffective for the purposes of Article 2. The Court further finds it necessary to examine the effectiveness of the action for compensation brought by the applicant before the administrative courts. 235. As mentioned above (see paragraph 138 above), in the Court ’ s view those proceedings were, in principle, capable of providing the most appropriate redress in relation to the death of the applicant ’ s husband. However, the Court does not consider that they did so in the instant case, for the following reasons. 236. The Court observes that the first striking feature of these proceedings is their considerable length. It notes that the compensation proceedings before the Oporto Administrative and Fiscal Court commenced on 6 March 2003 and ended on 26 February 2013. They therefore lasted for nine years, eleven months and twenty-five days over two levels of jurisdiction. Contrary to the Government ’ s assertion, the case file does not suggest that such lengthy proceedings were justified by the circumstances of the case. In particular, the Court stresses that the Oporto Administrative and Fiscal Court took more than four years to give a preliminary decision, and a further four years to arrange the hearings. The Court considers that such a lengthy time prolongs the ordeal of uncertainty not only for the claimants but also for the medical professionals concerned. 237. Secondly, the Court considers that, for the purposes of the procedural obligation of Article 2, the scope of an investigation faced with complex issues arising in a medical context cannot be interpreted as being limited to the time and direct cause of the individual ’ s death. The Court cannot speculate on the reasons why the origin of the bacterium which caused the applicant ’ s husband to contract meningitis could not be established at domestic level. It finds however that, where there is a prima facie arguable claim of a chain of events possibly triggered by an allegedly negligent act that may have contributed to the death of a patient, in particular if an allegation of a hospital-acquired infection is concerned, the authorities may be expected to conduct a thorough examination into the matter. The Court considers that no such examination was conducted in the instant case, in which the domestic courts, instead of carrying out an overall assessment, approached the chain of events as a succession of medical incidents, without paying particular attention to how they may have related to each other. 238. In sum, the Court considers that the domestic system as a whole, when faced with an arguable case of medical negligence resulting in the death of the applicant ’ s husband, failed to provide an adequate and timely response consonant with the State ’ s obligation under Article 2. Accordingly, there has been a violation of the procedural aspect of that provision. C. Conclusion 239. The Court reiterates that there has been no violation of the substantive limb of Article 2 of the Convention and that there has been a violation of the procedural limb of Article 2 of the Convention. The Court therefore dismisses the Government ’ s preliminary objection that the application is manifestly ill-founded. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 240. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 241. In the proceedings before the Chamber, the applicant claimed 174,580 euros (EUR) and EUR 100,000 respectively by way of pecuniary and non-pecuniary damage. 242. With regard to the sum claimed in respect of pecuniary damage, the Chamber found, besides the lack of evidence in support of the claim, no causal link between the violation found and the alleged pecuniary damage. Accordingly, it rejected that claim. By contrast, it considered that just satisfaction should be awarded on account of the fact that the violation of the substantive and procedural aspects of Article 2 had caused the applicant non-pecuniary damage by placing her in a position of distress and frustration. It awarded the applicant EUR 39,000 under that head. 243. Before the Grand Chamber, in her observations of 31 August 2016, the applicant did not make any specific claims for just satisfaction. However, at the hearing before the Grand Chamber the applicant ’ s representative referred to her claim before the Chamber and emphasised that the applicant accepted the decision made by the latter with regard to just satisfaction. 244. The Government did not comment on the question of just satisfaction after it was raised by the applicant ’ s representative at the hearing before the Grand Chamber. 245. The Court reiterates that Article 41 empowers it to afford the injured party such satisfaction as appears to it to be appropriate (see Karácsony and Others v. Hungary [GC], no. 42461/13, § 179, ECHR 2016 (extracts)). 246. It observes in this regard that there is no doubt that a claim for just satisfaction was duly made during the communication procedure before the Chamber, within the required time-limits (see, a contrario, Schatschaschwili v. Germany [GC], no. 9154/10, § 167, ECHR 2015, and Nagmetov v. Russia [GC], no. 35589/08, § 62, 30 March 2017), leading to an award of compensation to the applicant in respect of non-pecuniary damage. 247. The Court further notes that, while the applicant did not make any fresh claim for just satisfaction within the required time-limit in the proceedings before the Grand Chamber, she subsequently referred to her claim before the Chamber and affirmed that she accepted the decision made by the latter with regard to just satisfaction. The Government, who had the opportunity to respond to this claim at the hearing, did not object. 248. In view of the above, the Court is satisfied that a “claim” for just satisfaction has been made before the Court in the present case. 249. Like the Chamber, the Court does not discern any causal link between the violation found and the unsubstantiated pecuniary damage alleged, and dismisses this claim. 250. As regards non-pecuniary damage, the Court observes that the State was not found liable for the death of the applicant ’ s husband. Nevertheless, it considers that the applicant must have experienced severe distress and frustration on account of the inadequacy and protracted nature of the proceedings initiated by her in order to elucidate the circumstances surrounding the death of her husband. Ruling in equity, as required under Article 41, the Court awards her EUR 23,000 under this head. B. Costs and expenses 251. As the applicant, who was granted legal aid for the proceedings before the Grand Chamber, submitted no claim for costs and expenses, the Court makes no award under this head (see Perdigão v. Portugal [GC], no. 24768/06, § 87, 16 November 2010). C. Default interest 252. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Grand Chamber held that there had been no violation of the substantive limb of Article 2 (right to life) of the Convention with regard to the applicant’s husband’s death. It considered in particular that the present case concerned allegations of medical negligence rather than denial of treatment. That being so, Portugal’s obligations were limited to the setting-up of an adequate regulatory framework compelling hospitals, whether private or public, to adopt appropriate measures for the protection of patients’ lives. Having regard to the detailed rules and standards laid down in the domestic law and practice of the Portuguese State in the area under consideration, the Grand Chamber found that the relevant regulatory framework did not disclose any shortcomings with regard to the State’s obligation to protect the right to life of the applicant’s husband. However, the Grand Chamber held that there had been a violation of the procedural limb of Article 2, finding that that the domestic system as a whole, when faced with an arguable complaint by the applicant of medical negligence resulting in the death of her husband, had failed to provide an adequate and timely response regarding the circumstances of the latter’s death. |
950 | Impossibility for certain groups or individuals to vote in parliamentary elections | II. RELEVANT DOMESTIC LAW AND PRACTICE 14. Articles 31, 62 and 63 of the Cypriot Constitution provide as follows: Article 31 “Every citizen has, subject to the provisions of this Constitution and any electoral law of the Republic or of the relevant Communal Chamber made thereunder, the right to vote in any election held under this Constitution or any such law.” Article 62 “1. The number of representatives shall be fifty: Provided that such number may be altered by a resolution of the House of Representatives carried by a majority comprising two-thirds of the Representatives elected by the Greek community and two-thirds of the representatives elected by the Turkish community. 2. Out of the number of representatives provided in paragraph 1 of this Article, seventy per cent shall be elected by the Greek community and thirty per cent by the Turkish community separately from amongst their members respectively, and in the case of a contested election, by universal suffrage and by direct and secret ballot held on the same day. ...” Article 63 “1. Subject to paragraph 2 of this Article every citizen of the Republic who has attained the age of twenty-one years, and has such residential qualifications as may be prescribed by the Electoral Law, shall have the right to be registered as an elector in either the Greek or the Turkish electoral list: Provided that the members of the Greek community shall only be registered in the Greek electoral list and the members of the Turkish community shall only be registered in the Turkish electoral list. 2. No person shall be qualified to be registered as an elector who is disqualified for such registration by virtue of the Electoral Law.” Article 5 of the 1979 Election of Members of the House of Representatives Law (Law 72/79) provides as follows: “The right to elect belongs to those who have the qualifications provided for under Article 63 of the Constitution, that is to say citizens of the Republic who have attained the age of twenty-one and have had their ordinary residence in Cyprus for a period of six months immediately before the date fixed by the Minister, by publication in the Official Gazette of the Republic, as the date of acquisition of the electoral qualifications. ” Article 146 of the Cypriot Constitution grants the Supreme Court exclusive jurisdiction to adjudicate finally on applications made to it complaining, inter alia, that a decision, act or omission of any organ, authority or person exercising any executive or administrative authority is contrary to any of the provisions of the Constitution or any law, or is made in excess or in abuse of powers vested in such organ, authority or person. THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF PROTOCOL No. 1 15. The applicant complained that he had been prevented from exercising his voting rights in the parliamentary election of 27 May 2001, contrary to Article 3 of Protocol No. 1, which reads as follows: “The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.” A. The parties'submissions 1. The applicant 16. The applicant emphasised that Article 31 of the Constitution guaranteed every citizen, including himself, the right to vote. He noted that the Turkish Communal Chamber had ceased to operate in 1963 and that the Greek Communal Chamber had been abolished in 1965. However, he contended that in its judgment the Supreme Court had treated him as a member of the Turkish community despite the fact that this community no longer existed in the free government-controlled area. The applicant argued that no communities existed any more in that part of Cyprus but only citizens of the Republic with diverse ethnic origins. The Supreme Court could have ruled that the provisions of Law 72/79 were unconstitutional and constituted an obstacle to the applicant's right to vote. Furthermore, the Supreme Court had not applied the law of necessity in his case, as it had done in many other similar instances, but had interpreted the relevant constitutional and legal provisions in a restrictive manner, disregarding the spirit of the Constitution. 17. Finally, the applicant maintained that his case was clearly distinguishable from that of Mathieu-Mohin and Clerfayt v. Belgium (judgment of 2 March 1987, Series A no. 113). In the latter case, a mechanism had existed in practice for a person to exercise his voting rights and the impugned measure had been temporary in the continuing evolution of the legislative functions of the Belgian State. By contrast, the applicant only had a theoretical right to vote under the Cypriot Constitution and had been debarred from participating in the political life of the State in which he had chosen to live. 2. The Government 18. The Government stressed that there was no obligation under Article 3 of Protocol No. 1 to introduce a specific system for appointing the legislature and that Contracting States had a wide margin of appreciation in this respect. 19. Under Article 2 of the Constitution, citizens of the Republic had to belong to either the Greek or Turkish community. The essence of the constitutional framework, including the electoral system, was that each community participated and exercised functions in the organs of the State through its own representatives, elected or appointed by the members of their community, according to prescribed percentages or numbers allotted to each community under the Constitution. 20. The Government contended that, according to Article 62 of the Constitution, members of the Turkish community could not vote for members of the Greek community who stood as candidates for election to fill the prescribed 70% of House seats allotted to the Greek community. Likewise, members of the Greek community could not vote for members of the Turkish community who stood as candidates for election to fill the prescribed remaining 30% of House seats allotted to the Turkish community. Individual members of each of the two communities had to vote and elect representatives from their own community in their capacity as members of that community. It was for the above reasons that Article 63 § 1 provided that electors had to be registered either on the Greek or the Turkish electoral list according to the community they belonged to; in other words, members of either community could not be registered as electors on the other community's electoral list. 21. The Turkish community, to which the applicant belonged, had withdrawn from the constitutional organs of the State and, following the occupation of the northern part of the island, members of the two communities had been living separately. The applicant was part of the very small Turkish-Cypriot community ( some 1,089 individuals ) living in the non-occupied territory of Cyprus. However, owing to the absence of one of the two communities, the government of the Republic and the House of Representatives were not in practice bi-communally composed. Thus, the Government alleged that it had not been the electoral system as such that had prevented the applicant from voting for the legislature, but rather the absence of the majority of the Turkish community that had prevented him from voting, in his capacity as a member of the Turkish community, for candidates who were members of that community. 22. Any action of the government to enable members of the Turkish community living in the non-occupied part to participate in some form of election would have constituted a departure from a constitutional system devised for the purpose of granting special political rights to the Turkish community and might have been misunderstood as an attempt to impose a new system to the disadvantage of that community, at a time when the whole political situation could have been described as delicate. The applicant's case did not concern the restriction of the right to vote by conditions, but the electoral system as a whole under Article 62 § 2 of the Constitution. 23. In support of their arguments, the Government relied on Mathieu-Mohin and Clerfayt, cited above, in which the Court had stressed that an electoral system had to be assessed in the light of the political evolution of the country concerned, and that the general context must not be forgotten ( pp. 23-25, §§ 54 and 57). In this connection, they pointed out that the election arrangements in Cyprus, when viewed and assessed in the context of the totality of constitutional arrangements, pursued a legitimate aim and satisfied the condition of proportionality. 24. Finally, the Government maintained that, because of the deliberate non-participation in elections of the Turkish community, under Article 62 § 2 the applicant could not have voted for the House bearing in mind its composition. The system of legislative elections under Article 62 § 2 was one that fitted into the general institutional system of the State, as a bi ‑ communal system, embracing all the administrative and political institutions and the distribution of their powers. In the particular circumstances, it was not unreasonable to have a system of election securing the Turkish community's parliamentary representation, even though, owing to the deliberate abstention of that community, a very small number of its members could not vote for candidates from that community. Otherwise, a notably insignificant part of the whole population (less than 2%) would have controlled 30% of the House, a fact that would have been intolerably undemocratic. B. The Court's assessment 1. General principles 25. While Article 3 of Protocol No. 1 is phrased in terms of the obligation of the High Contracting Party to hold elections which ensure the free expression of the opinion of the people, the Court's case-law establishes that it guarantees individual rights, including the right to vote and to stand for election. Although those rights are central to democracy and the rule of law, they are not absolute and may be subject to limitations. The Contracting States have a wide margin of appreciation in this sphere, but it is for the Court to determine in the last resort whether the requirements of Article 3 of Protocol No. 1 have been complied with: it has to satisfy itself that the conditions do not curtail the rights in question to such an extent as to impair their very essence and deprive them of their effectiveness; that they are imposed in pursuit of a legitimate aim; and that the means employed are not disproportionate (see Mathieu-Mohin and Clerfayt, cited above, p. 23, § 52; and more recently, Matthews v. the United Kingdom [GC], no. 24833/94, § 63, ECHR 1999-I; Labita v. Italy [GC], no. 26772/95, § 201, ECHR 2000 ‑ IV; and Podkolzina v. Latvia, no. 46726/99, § 33, ECHR 2002-II). 2. Application in the present case 26. The Court observes that the Cypriot Constitution came into force in August 1960. Article 63 thereof provided for two separate electoral lists, one for the Greek-Cypriot community and one for the Turkish-Cypriot community. Nonetheless, the participation of the Turkish-Cypriot members of parliament was suspended as a result of the anomalous situation that began in 1963. From then on, the relevant Articles of the Constitution providing for the parliamentary representation of the Turkish-Cypriot community and the quotas to be adhered to by the two communities became impossible to implement in practice. 27. In deciding the applicant's case, the Supreme Court held that Article 63 of the Cypriot Constitution and Article 5 of Law 72/7 9 (relating to the election of members of parliament) did not provide for members of the Turkish-Cypriot community living in the government-controlled part of Cyprus to vote in the parliamentary elections and admitted that it could not intervene on the basis of the law of necessity in order to fill the legislative gap in this respect. 28. Although the Court notes that States enjoy considerable latitude to establish rules within their constitutional order governing parliamentary elections and the composition of the parliament, and that the relevant criteria may vary according to the historical and political factors peculiar to each State, these rules should not be such as to exclude some persons or groups of persons from participating in the political life of the country and, in particular, in the choice of the legislature, a right guaranteed by both the Convention and the Constitutions of all Contracting States. 29. In the present case, the Court notes that the irregular situation in Cyprus deteriorated following the occupation of northern Cyprus by Turkish troops and has continued for the last thirty years. It further observes that, despite the fact that the relevant constitutional provisions have been rendered ineffective, there is a manifest lack of legislation resolving the ensuing problems. Consequently, the applicant, as a member of the Turkish ‑ Cypriot community living in the government-controlled area of Cyprus, was completely deprived of any opportunity to express his opinion in the choice of the members of the House of Representatives of the country of which he is a national and where he has always lived. 30. The Court considers that, in the light of the above circumstances, the very essence of the applicant's right to vote, as guaranteed by Article 3 of Protocol No. 1, was impaired. It follows that there has been a violation of that provision. II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION 31. The applicant complained that he was prevented from exercising his voting rights on the grounds of national origin and/or association with a national minority contrary to Article 14 of the Convention, which reads as follows: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” A. The parties'submissions 1. The applicant 32. The applicant argued that, following the constitutional breakdown in 1964, the Cypriot government had passed different laws upholding the human rights of citizens. However, these laws had been conceived for the Greek Cypriots, no provisions being adopted safeguarding the rights of the Turkish Cypriots. Consequently, more than a thousand Turkish Cypriots, including the applicant, who were living in the free area, had not been able to exercise their fundamental right to vote or stand as candidates in parliamentary elections since 1964. Although the Cypriot authorities had been aware of the disenfranchisement of that part of the population, they had not taken measures to deal with the situation. Furthermore, the applicant submitted that the Supreme Court had not applied the law of necessity in order to resolve his case, as it had done in many other similar instances, because he was a Turkish Cypriot. Thus, he claimed that he had been deprived of his right to vote solely on the basis of his national origin. 2. The Government 33. The Government submitted that no issue arose under Article 14 of the Convention, because the applicant was not in a comparable situation to voters who were members of the Greek community and voted in this capacity for the candidates from their community. B. The Court's assessment 1. General principles 34. According to the Court's case-law, a difference of treatment is discriminatory, for the purposes of Article 14 of the Convention, if it “has no objective and reasonable justification”, that is if it does not pursue a “legitimate aim” or if there is not a “reasonable relationship of proportionality between the means employed and the aim sought to be realised” (see Abdulaziz, Cabales and Balkandali v. the United Kingdom, judgment of 28 May 1985, Series A no. 94, pp. 35-36, § 72 ). Moreover, the Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment (see Willis v. the United Kingdom, no. 36042/97, § 39, ECHR 2002-IV). 35. The Court further observes that Article 14 has no independent existence, but plays an important role by complementing the other provisions of the Convention and the Protocols, since it protects individuals, placed in similar situations, from any discrimination in the enjoyment of the rights set forth in those other provisions. Where a substantive Article of the Convention has been relied on, both on its own and in conjunction with Article 14, and a separate breach has been found of the substantive Article, it is not generally necessary for the Court to consider the case under Article 14 also, though the position is otherwise if a clear inequality of treatment in the enjoyment of the right in question is a fundamental aspect of the case (see Dudgeon v. the United Kingdom, judgment of 22 October 1981, Series A no. 45, p. 26, § 67, and Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, § 89, ECHR 1999-III). 2. Application in the present case 36. The Court considers that, in the instant case, the complaint under Article 14 of the Convention is not a mere restatement of the applicant's complaint under Article 3 of Protocol No. 1. The Court notes that the applicant is a Cypriot national, resident in the government-controlled area of Cyprus. It observes that the difference in treatment in the present case resulted from the very fact that the applicant was a Turkish Cypriot. It emanated from the constitutional provisions regulating the voting rights between members of the Greek-Cypriot and Turkish-Cypriot communities that had become impossible to implement in practice. 37. Although the Court takes note of the Government's arguments, it considers that they cannot justify this difference on reasonable and objective grounds, particularly in the light of the fact that Turkish Cypriots in the applicant's situation are prevented from voting at any parliamentary election. 38. Thus, the Court concludes that there is a clear inequality of treatment in the enjoyment of the right in question, which must be considered a fundamental aspect of the case. There has accordingly been a violation of Article 14 of the Convention taken in conjunction with Article 3 of Protocol No. 1. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 39. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 40. The applicant maintained that he had been politically active throughout a forty-year period but had been denied the opportunity to vote or stand as a candidate in parliamentary elections, solely on the ground that he was Turkish Cypriot. He submitted that this had had an effect on his social status and standing in the community. Furthermore, he contended that, owing to the fact that he lived in southern Cyprus, he had received threats from agents of the “ Turkish Republic of Northern Cyprus ” and had been criticised by the northern press and media as a traitor. Thus, the applicant claimed 50,000 Cypriot pounds (CYP) in compensation for the distress, hardship and psychological damage he had suffered because of a forty- year denial of his right to vote. In this connection, he stated that the claim was calculated so as to include every parliamentary election since 1964. 41. The Government submitted that the applicant's complaints before the Supreme Court as well as in the present proceedings only concerned his right to vote in the parliamentary election held in 2001, and not his right to stand in that election or any other elections held before this date. Furthermore, they submitted that it could not be said that the mere existence of the provisions in the Constitution and Electoral Laws, without reference to their actual effect, had caused the applicant distress, hardship and psychological damage in every parliamentary election since 1964 by explicitly denying him or not affording him the right to vote. The applicant had only discovered that he could not participate in the 2001 election following the rejection of his application for registration and the relevant judgment of the Supreme Court. Although they did not deny that the applicant must have suffered distress by not being able to exercise his right to vote in the 2001 parliamentary election, they noted that his claims as to “hardship” and “psychological damage” were unsubstantiated. 42. Furthermore, the Government contended that, in the particular circumstances of the case, especially in view of the political situation on the island, the constitutional arrangements envisaged for the benefit of the applicant's community and the sensitive issues surrounding reform of the electoral system, the Government's culpability was not such as to warrant an award of damages against them. Thus, they were of the opinion that any finding of a violation, with its ensuing obligations for the respondent State, should constitute in itself just satisfaction for the applicant. 43. In the present case, the Court notes that the Cypriot Government will have to implement such measures as they consider appropriate to fulfil their obligations to secure the right to vote in compliance with this judgment. Accordingly, it considers that this inevitable reform, combined with the findings in the present judgment, constitute sufficient just satisfaction. B. Costs and expenses 44. The applicant claimed a total of CYP 4,097.30 inclusive of value-added tax (VAT) as reimbursement for the costs and expenses incurred before the Supreme Court (CYP 1,436.80) and in the proceedings before this Court (CYP 2,660.50). In this connection, he submitted two bills of costs for the respective amounts. 45. The Government left this matter to the Court's discretion in the event of the finding of a violation, referring briefly to the general principles established by the Court concerning a possible award under this head. 46. The Court reiterates that only legal costs and expenses found to have been actually and necessarily incurred and which are reasonable as to quantum are recoverable under Article 41 of the Convention (see, among other authorities, Nikolova v. Bulgaria [GC], no. 31195/96, § 79, ECHR 1999-II, and Smith and Grady v. the United Kingdom (just satisfaction), nos. 33985/96 and 33986/96, § 28, ECHR 2000-IX). This may include domestic legal costs actually and necessarily incurred to prevent or redress the breach of the Convention (see, for example, I.J.L. and Others v. the United Kingdom ( just satisfaction), nos. 29522/95, 30056/96 and 30574/96, § 18, 25 September 2001 ). 47. Although the Court does not doubt that the fees claimed were actually incurred, it observes that the applicant only furnished two receipts relating to expenses included in the bills of costs. These concerned the translation of the Supreme Court's judgment. Nevertheless, it is clear that the applicant did incur costs in the preparation of his case and various other expenses including facsimile transmissions and postage. Accordingly, making its assessment on an equitable basis as required by Article 41, the Court considers it reasonable to make an award of EUR 3,500 under this head, to be converted into Cypriot pounds at the date of settlement. C. Default interest 48. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 3 of Protocol No. 1 to the Convention. It took the view that, on account of the abnormal situation existing in Cyprus since 1963 and the legislative vacuum, the applicant, as a member of the Turkish-Cypriot community living in the Republic of Cyprus, was completely deprived of any opportunity to express his opinion in the choice of the members of the House of Representatives. The very essence of the applicant’s right to vote was thus impaired. The Court also held that there had been a violation of Article 14 (prohibition of discrimination) of the Convention taken together with Article 3 of Protocol No. 1, finding a clear inequality of treatment in the enjoyment of the right in question, between the members of the Turkish-Cypriot community and those of the Greek-Cypriot community. The Court reiterated in this respect that States had considerable latitude to establish rules for parliamentary elections, but such rules had to be justified on reasonable and objective grounds. The difference in treatment of which the applicant complained, resulting from the fact that he was a Turkish Cypriot, could not be justified on reasonable and objective grounds, particularly in the light of the fact that Turkish Cypriots in the applicant’s situation had been prevented from voting at any parliamentary election. |
1,080 | Dismissal | RELEVANT LEGAL FRAMEWORK Domestic law 48. Section 101(1)(2) of the Labour Law authorises an employer to dismiss an employee if he or she, when carrying out his or her work, has acted unlawfully and has thereby lost the employer’s trust. 49. Section 110(1) of the Labour Law provides that an employer cannot dismiss an employee who is a member of a trade union without the trade union’s prior agreement. Section 110(4) further specifies that if the trade union does not agree with the dismissal, the employer may, within one month of receiving the trade union’s response, bring proceedings in a court seeking termination. 50. Section 31(1) of the Labour Law provides for a prescription period of two years for all claims emanating from labour relationships, unless otherwise provided for by law. Sections 34, 60 and 95(2) specify a three-month prescription period with respect to various discrimination claims. 51. Section 34(1)(2) of the Law on Aviation, as worded at the relevant time, provided that a civil aviation specialist was prohibited from performing his or her functions if he or she was sick, tired or could not perform his or her functions because of other circumstances, in order to guarantee flight safety or civil aviation security. 52. Section 44 of the Law on Associations and Foundations, which at the relevant time also regulated the representation of the trade unions, provides that members of the board represent the association jointly, unless otherwise provided in the Statute. 53. Section 11(3)(1) of the Civil Procedure Law provides that on the basis of a reasoned request by a party to a case or at the discretion of the court, a hearing (or a part thereof) may be closed to the public if this is necessary to protect a State secret or a commercial secret. Section 11(3)(5) provides that a closed hearing may also be held in the interests of the administration of justice. Section 11(8) provides that in cases that have been examined in closed hearings the operative part of the judgment must be pronounced publicly. 54. With respect to cases that have been examined in closed hearings, section 28 2 (2) of the Law on the Judiciary provides that the introductory and the operative parts of the judgment that have been pronounced publicly must be available to the public. Under sections 28 4 (1) and 28 4 (2), the case file in such cases shall be available only to the parties to the case and other specifically listed persons for twenty years; after this period has elapsed the case file will become available as “restricted information”. International law and materials 55. Article 1 of ILO Convention No. 98 on the Application of the Principles of the Right to Organise and to Bargain Collectively (adopted in 1949 and ratified by Latvia on 27 January 1992), in its relevant part, reads: “1. Workers shall enjoy adequate protection against acts of anti-union discrimination in respect of their employment. 2. Such protection shall apply more particularly in respect of acts calculated to... (b) cause the dismissal of or otherwise prejudice a worker by reason of union membership or because of participation in union activities outside working hours or, with the consent of the employer, within working hours.” 56. Article 1 of ILO Convention No. 135 on Worker’s Representatives (adopted in 1971 and ratified by Latvia on 27 January 1992) reads: “Workers’ representatives in the undertaking shall enjoy effective protection against any act prejudicial to them, including dismissal, based on their status or activities as a workers’ representative or on union membership or participation in union activities, in so far as they act in conformity with existing laws or collective agreements or other jointly agreed arrangements.” 57. A report by the ILO Committee of Experts on the Application of Conventions and Recommendations entitled “Giving globalisation a human face” (issued during the 101st session of the International Labour Conference, 2012) reads: “59. ... The ILO supervisory bodies have since unceasingly stressed the interdependence between civil liberties and trade union rights, emphasizing that a truly free and independent trade union movement can only develop in a climate free from violence, pressure and threats of any kind against the leaders and members of such organizations. ... 173. Under the terms of the first two Articles of Convention No. 98, States are under the obligation to take specific measures to ensure both: (i) the adequate protection of workers against any acts of anti-union discrimination both at the time of taking up employment and in the course of employment, including at the time of the termination of the employment relationship, and covering ‘acts of anti-union discrimination in respect of their employment’ (dismissal, transfer, demotion and other prejudicial acts); and (ii) adequate protection for workers’ and employers’ organizations against ‘any acts of interference by each other’ in their establishment, functioning or administration.” 58. An ILO document entitled “Freedom of Association: compilation of decisions of the Committee on Freedom of Association, International Labour Office” (Geneva, 6th edition, 2018), reads: “586. Workers and their organizations should have the right to elect their representatives in full freedom and the latter should have the right to put forward claims on their behalf. ... 719. Employers’ and workers’ organizations must be allowed to conduct their activities in a climate that is free from pressure, intimidation, harassment, threats or efforts to discredit them or their leaders... 720. Professional organizations of workers and employers should under no circumstances be subjected to retaliatory measures for having exercised their rights arising from ILO instruments on freedom of association... 731. The exercise of trade union rights might at times entail criticisms of the authorities of public employer institutions and/or of socio-economic conditions of concern to trade unions and their members. ... 737. Denouncing to the competent authorities insufficient occupational safety and health measures is in fact a legitimate trade union activity and a workers’ right which should be guaranteed by law. ... 1075. No person should be dismissed or prejudiced in employment by reason of trade union membership or legitimate trade union activities, and it is important to forbid and penalize in practice all acts of anti-union discrimination in respect of employment. ... 1078. Since inadequate safeguards against acts of anti-union discrimination, in particular against dismissals, may lead to the actual disappearance of trade unions composed only of workers in an undertaking, additional measures should be taken to ensure fuller protection for leaders of all organizations, and delegates and members of trade unions, against any discriminatory acts. ... 1131. Especially at the initial stages of unionization in a workplace, dismissal of trade union representatives might fatally compromise incipient attempts at exercising the right to organize, as it not only deprives the workers of their representatives, but also has an intimidating effect on other workers who could have envisaged assuming trade union functions or simply join the union. ... 1138. The government is responsible for preventing all acts of anti-union discrimination and it must ensure that complaints of anti-union discrimination are examined in the framework of national procedures which should be prompt, impartial and considered as such by the parties concerned. ... 1175. If the judicial authority – or an independent competent body – determines that reinstatement of trade union members is not possible for objective and compelling reasons, adequate compensation should be awarded to remedy all damages suffered and prevent any repetition of such acts in the future, so as to constitute a sufficiently dissuasive sanction against acts of anti-union discrimination ...” THE LAW ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION read in the light of Article 10 59. Invoking Articles 6, 8, 10, 11 and 14 of the Convention, the applicant complained of the negative consequences that she had suffered owing to the letter she had addressed to the State officials overseeing a State-owned company in her capacity as the chairperson of the Trade Union board. In her subsequent observations she argued that this complaint should be examined under Article 11, read in the light of Article 10. Those provisions read as follows: Article 10 “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” Article 11 “ 1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests. 2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.” Admissibility 60. The Government submitted that when signing the letter, the applicant had acted in a personal capacity and that Article 11 was therefore not applicable. The applicant had also not clarified how her status as a trade union member and leader had been affected – she had continued to be the chairperson of the Trade Union and had been allowed to participate in its meetings. Therefore, she could not claim to be the victim of a violation of Article 11. In the alternative, the Government argued that the applicant had not exhausted the domestic remedies, as she had not raised her claim (at least in substance) before the domestic courts, the civil proceedings having concerned her dismissal. She had argued that her suspension had affected the work of the Trade Union; however, she had failed to substantiate that claim. She had also failed to involve the Trade Union in the proceedings in a third-party capacity or to bring a claim against LGS on behalf of the Trade Union itself. Accordingly, the complaint before the Court could only be examined under Article 10. 61. The applicant disputed the Government’s position. Her argument, domestically and before the Court, had been that she had been subjected to detriments by reason of her legitimate trade union activity in signing the letter. That had been an official Trade Union letter and it had concerned the terms and conditions of employment of the Trade Union’s members. It had been written as part of the process of collective bargaining. Article 11 guarded not only against interference with the right to participate in trade union activities but also against being penalised for participating in such activities. 62. The Court notes that the domestic proceedings, to which the applicant was a party, concerned her suspension, dismissal and other detriments imposed on her for having written a letter in her capacity – as argued by the applicant – as a representative of the Trade Union. While the Government considered that she had written the letter in her private capacity, they did not dispute the fact that the applicant’s suspension and dismissal had been in reaction to the letter she had signed. Thus, the domestic proceedings raised in substance the same question, which is the complaint that the applicant has now brought before this Court relying on Articles 10 and 11 of the Convention. It follows that the applicant can claim to be the victim of the alleged violations of the Convention. Accordingly, the Court dismisses the Government’s objections concerning victim status and non-exhaustion. The remainder of the Government’s arguments, which pertain to the question whether indeed the applicant acted in her capacity of a Trade Union representative and, therefore, the existence of an interference with Article 11 rights rather than with Article 10 rights, are closely related to the merits of the case and must therefore be joined to the merits. 63. The Court also notes that the above complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. MeritsThe applicant The applicant The applicant 64. The applicant argued that after sending the Trade Union letter she had been subjected to a wave of detriments that had included: a disciplinary investigation; suspension from work; being banned from the workplace; unnecessary medical checks and neuropsychological assessments; the revocation of her pay (during her suspension period); being obliged to perform tasks unrelated to her employment duties; being obliged to stand idle; the compromising of her status as chairperson of the Trade Union board; the intimidation of those of her colleagues who had not distanced themselves from her; and – lastly – her dismissal. While those detriments had also interfered with her freedom of expression (as guaranteed under Article 10), she was entitled to even greater protection under Article 11, given that she had been acting as the Trade Union’s representative. Unlike in the case of Palomo Sánchez and Others v. Spain ([GC], nos. 28955/06 and 3 others, ECHR 2011) – where, owing to the nature of the content of the published material, the Court had examined the case under Article 10, read in the light of Article 11 – in the instant case the letter addressed socio-economic demands made by the Trade Union in the interests of its members. Therefore, the present case had to be regarded as primarily falling within the scope of Article 11, read in the light of Article 10. 65. The applicant emphasised that she had signed the letter in her capacity as the chairperson of the Trade Union board, in pursuit of the protection of the interests of the Trade Union’s members. The domestic courts had had no jurisdiction to question her authority to sign the letter in the absence of a challenge to it by the Trade Union. Her authority had emanated from the Trade Union’s rules, had been confirmed by the subsequent acquiescence and support from the Trade Union’s members, and had been strengthened even further by the prior authorisation by the Trade Union board (see paragraph 9 above). Additionally, the contents of the letter had been typical of trade union correspondence raising grievances and concerns with an employer and pointing to perceived risks and the potential adverse consequences thereof. The domestic courts’ findings that the applicant had acted in a personal capacity were incompatible with the freedom of trade unions to draw up their own rules and administer their own affairs. 66. The interference had not been prescribed by law. A reasonable interpretation of section 34(1)(2) of the Law on Aviation would not have rendered it applicable to the note that the applicant had appended to her revised job description, as that provision had only concerned a lack of physical capability to perform work (see paragraph 51 above). In any case, the applicant’s manager had given her a clear permission to express her disagreement, and the employer had permitted her to continue performing her ATCO functions. The courts’ finding that the applicant had thereby expressed her intention not to comply with the normative acts regulating air traffic had been absurd and unsupported by evidence. Such grounds for the applicant’s dismissal constituted a false construct, which had been created to conceal the real reason for the reprisals – her trade union activity. 67. With respect to the purportedly legitimate aim of the interference, no independent and impartial tribunal could have concluded that an ATCO appending such a note to his or her job description could have conceivably given rise to a threat to public safety; nor had any party argued that the applicant signing the letter had posed a risk to flight safety. Indeed, since overtime work had persisted after the applicant’s dismissal, public safety had remained unprotected in that regard. 68. In the Trade Union letter the applicant had noted that ATCOs were working long hours of unrecorded overtime, which was likely to make them fatigued. The applicant had expressed the view that flight safety was thereby threatened. This allegation had then been unjustifiably magnified by the Supreme Court into the extraordinary allegation that LGS was not capable of functioning and hence that Latvian airspace was not safe. However, it was a fact that the ATCOs undertaking the instruction of ATCO trainees had done so outside their normal working shifts and that this overtime work had not been recorded or paid for (as, inter alia, found by the State Labour Inspectorate – see paragraph 47 above). It had, however, been a value judgment as to whether that fact, if not resolved, would threaten flight safety. The applicant had clearly been an expert qualified to make such an assessment, as she had undertaken ATCO training and had worked with and represented other instructors who had delivered such training. Hence, this value judgment had clearly had a sufficient factual basis. 69. While the tone and language of the letter had been forceful, the statements had not been immoderate, inflammatory, grossly insulting or offensive. Such forceful expressions were not unusual within the context of industrial relations between employers and trade unions. Insults could justify sanctions; however, criticism – even if it included strong and intemperate remarks – was protected. Where criticism emanated from a trade union representative advancing a claim for better terms and conditions, the categories of persons with respect to whom the acceptable level of criticism was wider had to be extended to the employing entity and its senior management. 70. The Government’s argument about the damage that might be suffered as a result of the disclosure of the contents of the letter had concerned the potential consequences of disrupted air traffic. Neither the note to the revised job description, nor the letter had been capable of producing such effects. The Government’s case also rested on the dissemination of the letter “outside the premises of the company”, yet the letter had only been sent to the Minister of Transport (as the Ministry had owned 100% of the shares in LGS) and to its representative (who had held those shares on the Ministry’s behalf). In fact, this had been an internal letter addressed by the Trade Union to the management of the employer. 71. Lastly, the detriments imposed on the applicant – particularly her suspension, “idle standing” and dismissal – had constituted very heavy sanctions. Even the mere threat of dismissal constituted a serious prejudice in employment that struck at the very core of the freedom of association. Such sanctions could have a chilling effect on legitimate trade union activity. Furthermore, as LGS was the sole employer of civilian ATCOs in Latvia, for the applicant the dismissal had resulted in the loss of her career, in Latvia, with material consequences for her entire family. The Government 72. The question of whether the letter had reflected the position of the Trade Union had been examined before the domestic courts, which had concluded that the letter had expressed the applicant’s personal opinion. While the questions raised in the letter had been touched upon in discussions between the Trade Union’s members, they had not been informed of the exact content and expressions used in the letter, and had not supported the statements about the threats to the flight security. Similarly, as in Palomo Sanchez and Others (cited above), the restrictions imposed on the applicant had not been directed against her as a trade union representative but as an ATCO instructor. 73. The applicant’s suspension had been based on section 34(1)(2) of the Law on Aviation and her dismissal had been based on section 101(1)(2) of the Labour Law (see paragraphs 51 and 48 above). The applicant had acted unlawfully as she had: 1) appended a dissenting note to her revised job description and 2) included in the letter of 2 March 2012 untrue statements regarding the flight safety. Accordingly, the restrictions had been based on law. 74. The legitimate aim of the restrictions had been the protection of public safety and the rights of others. Given the nature and tone and the unambiguous statements about allegedly imminent dangers to flight safety, LGS had had a duty to react and initiate the required follow-up measures to verify the alleged dangers and to prevent them. 75. The case raised the complex issue of the freedom of expression of employees regarding conditions of work in a State-owned company that fulfilled an important State function and was critical to its infrastructure. The specific nature of those services required that the most careful attention be paid to the kind of information and allegations that were disseminated to third persons, as unverified or unsubstantiated allegations could give rise to extensive harm. Among professionals, the limits of permissible expressions could be broader; however, with respect to third persons who did not deal with flight safety on a daily basis, the use of “forceful” expressions could give rise to unintended and potentially harmful reactions. 76. The letter had in very strong terms referred to allegedly imminent threats to the safety of air traffic without there being sufficient factual basis. Institutions had carried out inspections and had not found that any threats to flight safety existed. There was also a difference between a value judgment made by one person and a commonly held opinion, or at least a majority opinion. The applicant had been at liberty to assert that she was suffering from fatigue owing to her long working hours, and this was presumably the reason why she had refused to take on additional working hours as an instructor. However, it was doubtful that when writing the letter the applicant had expressed an opinion agreed between all ATCO instructors. 77. Due to their specific working environment, ATCOs were bound by the duty of loyalty that is applicable in the public sector. They were required to evaluate their own psycho-emotional state and ability to perform their respective tasks and were obliged to withdraw from their duties in the event of any doubt. LGS’s reaction constituted standard procedure whenever doubts about an ATCO’s ability to perform his or her duty arose. The fact that the applicant was a trade union leader could not exempt her from the necessary assessments that an employee would ordinarily face after making an allegation that the company’s ability to provide the services was threatened owing to overwork and fatigue. 78. While the letter had contained some elements that could be characterised as legitimate socio-economic demands on the part of the Trade Union, the present case revolved around specific and forceful statements made by the applicant concerning the flight safety (a strictly regulated area). As in the case of Szima v. Hungary (no. 29723/11, 9 October 2012), a distinction had to be drawn between statements made with regard to legitimate trade union interests and those not related to trade union interests. The case had to be analysed in the light of the principles developed in Guja v. Moldova ([GC], no. 14277/04, ECHR 2008). Balancing the authenticity of the disseminated information against any damage it’s dissemination might have caused had been at the core of the dispute. The applicant had written the letter with the goal of obtaining socio-economic benefits and destabilising the LGS board. The third-party interveners (a) The European Transport Workers’ Federation 79. The European Transport Workers’ Federation emphasised that employers frequently sought to penalise workers by claiming that activities carried out in the name of a trade union were in fact carried out in a personal capacity. That approach had a chilling effect on the willingness of workers to articulate the interests of their colleagues through their union. It was the trade union in question that had to be the arbiter of whether what was done by a worker was done on the authority of that union. Freedom of association encompassed the right of trade unions to organise their administration and activities without any interference by public authorities. 80. Nothing could have a more chilling effect on trade union organisation at a workplace than the threat of the dismissal of that union’s elected representatives. One of the fundamental principles of freedom of association was that union representatives should enjoy adequate protection against all acts of anti-union discrimination in order to be able to perform their union duties completely independently, in accordance with the mandate given to them by their members. (b) The European Trade Union Confederation 81. The European Trade Union Confederation stressed that the instant case was of fundamental importance for the protection of trade union rights, and in particular for the activities of trade union officials. The latter had to be effectively protected against harassment, dismissal and other forms of discrimination, as otherwise trade unions would be deprived of a substantial means of defending, protecting and furthering workers’ rights and interests. That would be even more the case in respect of trade union officials who were furthering the public interest by trying to secure the implementation of standards aimed at providing safe air traffic control services. Failure to observe safety and health regulations and limitations on the number of working hours could have a negative impact not only on workers’ health but also a potentially dangerous impact on the quality of work to be performed. In relation to work, such as air traffic control, that had a direct impact on the life and health of third persons, any activity on the part of the Trade Union was also aimed at contributing to public safety. 82. A distinction had to be drawn between an “employee expression” and a “trade union expression” in respect of professional and employment-related matters. A trade union expression warranted a higher degree of protection, and the Court’s jurisprudence in respect of media freedom had to be applied also to trade unions, given their role as “watchdogs” for workers’ interests. In the instant case, priority had to be given to the examination of the case in the light of the trade union rights guaranteed by Article 11, their level of protection being strengthened by the right to freedom of expression enshrined in Article 10. 83. By no means could an activity undertaken by a trade union official (or even more so, a chairperson) on behalf of his or her union be attributed to that single person if he or she at the same time happened to be a worker at the enterprise concerned. If such an activity was followed by reprisals, those measures were discriminatory and directly interfered with the rights guaranteed under Article 11. Anti-union discrimination, which included the dismissal of workers on the grounds of their trade union activities, constituted one of the most serious violations of freedom of association, as it could jeopardise the very existence of trade unions. The violation became even more serious, if such a dismissal had been preceded by a long series of other prejudicial acts (such as an internal investigation, a complaint with the Security Police, a suspension), and deprived the person in question of any possibility of enjoying a professional occupation (for example, due to being the only workplace in the country for the specific occupation). 84. Employers often tried to influence trade union activities not only by discriminating against individual trade union members or officials but also in relation to the organisation of trade unions’ internal affairs. It was not up to the employer to decide who should act on behalf of the trade union; that was unquestionably the prerogative of the union and its internal administration. The right to freedom of association would also be violated if the employer organised meetings aimed at discrediting trade union activities, compelled workers to sign letters against a trade union, particularly under the threat of suspension, or demanded that certain trade union officials be replaced. (c) The International Federation of Air Traffic Controllers’ Associations 85. The International Federation of Air Traffic Controllers’ Associations expressed concerns about attempts to penalise office holders in professional associations and trade unions for fulfilling the functions of their respective offices. Acts of anti-union discrimination were often disguised as criticism of a worker for carrying out his or her employment duties. 86. Air traffic management was a specific working environment where the interests of safety were paramount. Any conflicts between management and staff contained elements that related to “safety critical” aspects. In a “safety critical” environment, it was of absolute importance that any shortcomings, irregularities, flaws, and potential safety risks could be reported at any time, both by individuals and by their representative organisations. Therefore, it was of great importance that air traffic management, civil aviation authorities, and staff promoted and created a working atmosphere that fostered the above-noted conditions. The reporting of safety issues had to be handled within a “just culture” atmosphere before any labour laws were applied. The right to report should not be denied without any proper motivation. 87. The structural reporting of overtime was a safety issue. Management and civil aviation agencies had to be open to receiving critical information from staff. It went without saying that government, judicial authorities, and aeronavigation service providers should not hinder the possibility for individuals, staff associations and unions to report safety issues. Speaking up out of loyalty to the profession and a concern for safety was never a sign of lack of loyalty to an aeronavigation service provider. 88. Air traffic management authorities had an above-average interest in respecting human rights in labour relations. Labour relations should not be used in a way that could diminish the reporting culture at a professional level. The Court (a) The applicable provision 89. In the present case, the question of freedom of expression is closely related to that of freedom of association within a trade union context. The protection of personal opinions, as secured by Article 10, is one of the objectives of freedom of assembly and association, as enshrined in Article 11 (see Ezelin v. France, 26 April 1991, § 37, Series A no. 202; Palomo Sánchez and Others, § 52, cited above; Trade Union of the Police in the Slovak Republic and Others v. Slovakia, no. 11828/08, § 51, 25 September 2012; and Schwabe and M.G. v. Germany, nos. 8080/08 and 8577/08, §§ 99 ‑ 101, ECHR 2011 (extracts)). 90. The Court observes that the main focus of the applicant’s complaint is that she was penalised for carrying out a trade union activity and that the domestic courts arbitrarily denied the trade union element of the dispute. While the Court will deal with the question of whether the negative consequences suffered by the applicant were indeed the result of her acting as a Trade Union representative later (see paragraph 95 below), the Court considers that in view of the circumstances of the case and the nature of the applicant’s complaint, it should be examined under Article 11, interpreted in the light of Article 10 (compare also Schwabe and M.G., cited above, §§ 98 ‑ 101, and the references cited therein). (b) The relevant principles 91. The Court reiterates that Article 11 § 1 presents trade union freedom as a special aspect of freedom of association. The Convention safeguards freedom to protect the occupational interests of trade union members by trade union action, the conduct and development of which the Contracting States must both permit and make possible. A trade union must thus be free to strive for the protection of its members’ interests, and its individual members have a right, in order to protect their interests, that that trade union should be heard (see Ognevenko v. Russia, no. 44873/09, §§ 54-55, 20 November 2018; Wilson, National Union of Journalists and Others v. the United Kingdom, nos. 30668/96 and 2 others, § 42, ECHR 2002 ‑ V; and National Union of Belgian Police v. Belgium, 27 October 1975, § 39, Series A no. 19). One of the essential elements of the right of association is the right for a trade union to seek to persuade an employer to listen what it has to say of behalf of its members (see Demir and Baykara v. Turkey [GC], no. 34503/97, §§ 143 and 145, ECHR 2008; Wilson, National Union of Journalists and Others, cited above, § 44; Trade Union of the Police in the Slovak Republic and Others, cited above, § 54; and Tek Gıda İş Sendikası v. Turkey, no. 35009/05, § 33, 4 April 2017). 92. Accordingly, the members of a trade union must be able to express to their employer the demands by which they seek to improve the situation of workers in their company. A trade union that does not have the possibility of expressing its ideas freely in this regard is deprived of an essential means of action. Consequently, for the purpose of guaranteeing the meaningful and effective nature of trade union rights, the national authorities must ensure that disproportionate penalties do not dissuade trade union representatives from seeking to express and defend their members’ interests (see the above-cited cases of Palomo Sánchez and Others, § 56, and Szima, § 28; see also the above-cited cases of Wilson, National Union of Journalists and Others, § 46, and Trade Union of the Police in the Slovak Republic and Others, § 55). Where statements clearly relate to trade union activities, their sanctioning is difficult to reconcile with the prerogatives of a trade union leader (see Szima, cited above, § 32). Even minimal sanctions dissuade trade union members from freely engaging in their activities (see Doǧan Altun v. Turkey, no. 7152/08, § 50, 26 May 2015). 93. The protection against arbitrary, unlawful and unjustified restrictions guaranteed by Article 11 is not limited to bans and refusals to authorise the exercise of Convention rights, but also includes punitive measures taken after such rights have been exercised, including various disciplinary measures (see the above-cited cases of Ezelin, § 39; Ognevenko, § 61; and Trofimchuk v. Ukraine, no. 4241/03, § 35, 28 October 2010). In determining the conduct that has triggered the punishment the Court has been mindful not to take an overly formalistic approach and has been guided by the principle of practical and effective application of the Convention (see the above-cited cases of Trofimchuk, §§ 36-39, and Doǧan Altun, § 32). (c) Application of the relevant principles (i) Whether there was an interference 94. The applicant submitted that the series of detriments imposed on her (listed in paragraph 64 above) were a direct reaction to her having sent, on behalf of the Trade Union, the letter of 2 March 2012. The Government countered that the applicant’s freedom of association had not been interfered with, as she had acted in her private capacity in sending the letter and her involvement in the Trade Union had not been affected. 95. Having examined the material before it and the parties’ submissions, the Court considers it beyond any doubt that when signing the letter of 2 March 2012 the applicant represented the Trade Union. The applicant had general authority to act on behalf of the Trade Union as its chairperson (see paragraph 7 above) and the text of the letter made it plain that it was written and signed on behalf of the Trade Union (see paragraph 10 above). In addition, the Trade Union board had made a collective decision to address the institution overseeing the employer (see paragraph 9 above), and the letter dealt with socio-economic matters concerning the Trade Union’s members and their ability to correctly perform their function as ATCOs given their working conditions that had been raised in previous negotiations with the employer (see paragraph 8 above). Furthermore, the Trade Union members supported the applicant in her actions as their representative (see paragraph 23 above), and even though some individual members distanced themselves from the contents of the letter, possibly under the threat of suspension (see paragraphs 17 and 31 above), the Trade Union itself never retracted the letter or the contents thereof. The fact that other letters sent by the Trade Union – particularly those intended to express support for the applicant – were signed by more than one person can in no way be taken to infer that the applicant acted in her private capacity. Neither could a finding that not all members of the Trade Union shared all of the views expressed in the letter. Accordingly, the domestic courts’ finding that the applicant had acted in her private capacity has no legal or factual basis and is therefore manifestly arbitrary. It follows that by sending the Trade Union letter the applicant acted as its representative and thereby exercised her right to freedom of association. 96. The Court further observes that the majority of the detriments that were imposed on the applicant were put in place expressly as a sanction for her having sent this letter (in particular, the disciplinary investigation, the suspension from work, the prohibition to attend the workplace, the revocation of pay, the obligation to stand idle, the dismissal – see paragraphs 21, 25, 27, 32, 40 above). The other detriments complained of were either closely connected to the aforementioned measures (such as the medical checks and the obligation to perform tasks unrelated to the employment duties – see paragraphs 24, 27 above), or, in view of the context, could only be understood as a reaction to the applicant’s trade union activities (such as the steps taken to compromise her status as the chairperson of the Trade Union board or to pressure the colleagues who had not distanced themselves from her – see paragraphs 20, 22, 28 above). There was therefore an interference with the applicant’s freedom of association. 97. In the light of the above, the Court dismisses the Government’s remaining preliminary objections, joined to the merits, regarding the applicability of Article 11 of the Convention to the particular facts of the case (see paragraph 62 above). 98. It remains to be determined whether that interference was prescribed by law, pursued one or more of the legitimate aims set out in paragraph 2 of Article 11, and was necessary in a democratic society for achieving those aims. (ii) Whether the interference was justified (α) Lawfulness 99. The Court has certain misgivings as to whether the domestic law could have reasonably been interpreted as providing for the detriments imposed on the applicant. This relates, in particular, to the legal provisions invoked to justify the applicant’s suspension and dismissal as applied in the circumstances of the present case (see paragraphs 73, 51 and 48 above, see also paragraph 95 above). The Court will, however, proceed on the assumption that the interference had a legal basis. The justification for those measures is to be examined below. (β) Legitimate aim 100. The Court accepts that the impugned measures were aimed at protecting the rights and freedoms of the employer, and therefore served the legitimate aim of protecting the rights and freedoms of others. The Government’s argument that they were also aimed at protecting the rights and freedoms of the wider public and the public safety was disputed by the applicant and will be analysed below. (γ) Necessity 101. An interference with trade union freedom can be regarded as necessary in a democratic society if it answers a pressing social need and is proportionate to the legitimate aim pursued. Accordingly, in the present case the Court must determine, in particular, whether the domestic courts struck a fair balance between the applicant’s right to freedom of association on the one hand and protection of the employer’s interests on the other hand. In doing so the Court has to satisfy itself that the reasons adduced by the national authorities were relevant and sufficient and, in particular, that the standards applied were in conformity with the principles embodied in Articles 10 and 11 of the Convention and that the national authorities based themselves on an acceptable assessment of the relevant facts (see Tek Gıda İş Sendikası, cited above, § 34; National Union of Rail, Maritime and Transport Workers v. the United Kingdom, no. 31045/10, § 86, ECHR 2014; Sindicatul “Păstorul cel Bun” v. Romania [GC], no. 2330/09, § 133, ECHR 2013 (extracts); and Ognevenko, cited above, §§ 67 ‑ 68). 102. The Court does not find it necessary to inquire into the kind of issues that have been central to its case-law on whistle-blowing (see Guja, cited above; Bucur and Toma v. Romania, no. 40238/02, 8 January 2013; Heinisch v. Germany, no. 28274/08, ECHR 2011 (extracts); and Gawlik v. Liechtenstein, no. 23922/19, 16 February 2021), as the present case concerns the context of the freedom of expression of a trade union representative. Here, the aim of the expression was not to raise the public awareness of an unlawful conduct but to advocate for the socio-economic interests of the Trade Union’s members and certain safety concerns. It is worth recalling, to the extent relevant, that the impugned letter was addressed to the State officials overseeing LGS, a State-owned company, and not disseminated publicly. The Court emphasises that advocating for the interests of trade union members is the very function of trade union representatives and constitutes a fundamental element of trade union freedom. It should also be distinguished from situations in which employees express their own personal opinions, as actions and statements aimed at furthering the interests of trade union members as a whole call for a particularly high level of protection (compare Herbai v. Hungary, no. 11608/15, § 44, 5 November 2019, with respect to the freedom of expression of an employee, and Vellutini and Michel v. France, no. 32820/09, §§ 37-39, 6 October 2011, with respect to the freedom of expression of trade union representatives). The arguments pertaining to whistle-blowing were also not raised before and analysed by the domestic courts. 103. In view of the case-law concerning trade unions’ freedom of expression (see the above cited cases of Palomo Sánchez and Others; Szima; and Vellutini and Michel ), the Court considers the following elements to be relevant: the context within which the statements were made (including whether they formed part of a legitimate trade union activity); the nature of the statements (including whether the limits of acceptable criticisms were crossed); the damage suffered by the employer or other persons; and the nature and severity of the sanctions or other repercussions. 104. The Court observes that the letter of 2 March 2012 addressed various socio-economic issues and practices that were considered to negatively affect LGS’ employees and the performance of their tasks as ATCOs and that had already been raised with the employer (see paragraphs 8 ‑ 16 above). By this letter these labour-related concerns were relayed to the State institution that owned and oversaw the employer. While the Court does not have enough information to conclude that the writing of this letter constituted an exercise of the right to engage in collective bargaining as argued by the applicant, it did form part of the Trade Union’s efforts to express the demands by which it sought to improve the situation of its members and safeguard the performance of their duties. Accordingly, the applicant was representing the Trade Union in its exercise of a legitimate trade union activity. Moreover, it concerned an essential element of the trade union freedom – seeking to persuade the employer to hear what it had to say on behalf of its members. 105. The Court observes that aside from disregarding the fact that the letter was written by a Trade Union’s representative, the domestic courts also paid no attention to the trade union context when analysing its contents. This prevented the domestic courts from applying the relevant standards and appropriately assessing the pertinent facts, which led to contradictory conclusions. For example, the courts stated that the applicant had written the letter to obtain socio-economic benefits for herself, even though the majority of the issues addressed in the letter had not personally applied to her. Similarly, the courts concluded that the applicant had been under an obligation to stop performing her employment duties if she considered that there were circumstances affecting aeronavigation safety, even though she herself had not caried out the ATCO training that had been subjected to unrecorded overtime work. 106. The Government argued that the letter contained statements about threats to aeronavigation safety, which had gone beyond the scope of legitimate trade union interests. However, the Court observes that after describing various shortcomings in the organisation of ATCO work, including unregistered overtime work, the letter submitted that these deficiencies could fatigue the employees, demoralise them, cause senior staff to leave and reduce the quality of the training. It further inferred that this, in turn, could lower flight safety and the sustainability of LGS (see paragraphs 11 ‑ 16 above). 107. The Court reiterates that drawing inferences from existing facts is generally intended to convey opinions and is thus more akin to value judgments (see Marunić v. Croatia, no. 51706/11, § 61, 28 March 2017). Moreover, in the circumstances of the present case, these inferences could be regarded as a professional assessment of the potential impact of the identified deficiencies. However, the domestic courts, in finding that the applicant had distributed “untruthful information” and “untruthful opinion”, looked at the statements concerning the potential consequences and verified only whether those potential consequences had already occurred. In particular, they relied on documents and statements attesting, in general terms, that air traffic was safe and that ATCOs were not endangering aeronavigation safety. At the same time, they did not verify the statements of facts that had formed the basis for these inferences and did not analyse whether the deficiencies alleged had indeed existed. Most notably, the domestic courts did not determine whether the ATCO training had indeed taken place on the basis of unregistered overtime work, despite evidence supporting that allegation being presented at a hearing (see paragraph 31 above). Accordingly, the domestic courts failed to carry out a proper assessment of whether the existence of facts stated in the letter had been demonstrated and whether the opinions expressed therein had had a sufficient factual basis. 108. The documents submitted to the Court indicate that the statements made in the letter were not devoid of factual grounds and did not amount to a gratuitous attack on the LGS board. They constituted a description of labour-related concerns and were made within the legitimate aim of protecting the labour-related interests of the Trade Union members and the effective performance of their work. They did not exceed the limits of acceptable criticism (compare Heinisch, §§ 79 and 85, and contrast Szima, § 31, and Palomo Sánchez and Others, § 67, all cited above). In addition, the Court notes that while employees have a duty of loyalty, reserve and discretion to their employer and certain expressions that may be legitimate within other contexts are not appropriate in labour relations (see the above ‑ cited cases of Guja, § 70; Trade Union of the Police in the Slovak Republic and Others, § 57; Palomo Sánchez and Others, § 76; and Herbai, § 38; though for the limits of this duty with respect to the freedom of expression see Marunić, cited above, § 52), within the context of trade union activities, criticism of social or economic policies or occupational safety and health measures constitutes a legitimate trade union activity and employees’ right that is guaranteed under Article 11. The duty of loyalty cannot be relied upon to deprive trade unions and their representatives of the very essence of their right to defend their members’ interests. 109. With respect to the argument about the potential damage that could be caused by disseminating the information included in the letter, the Court points out that the letter was only sent to the State officials that oversaw the employer – a State owned company – and was not published or otherwise distributed to the wider public (compare Matalas v. Greece, no. 1864/18, § 55, 25 March 2021). The public shareholder in a State-owned company such as LGS had a right to be informed of matters affecting the socio ‑ economic circumstances and well-being of the staff and potentially influencing the quality and safety of the service provided (compare Heinisch, cited above, § 89). In fact, addressing the issues raised in the Trade Union letter could only have served the interests of the employer and the public, which is even further augmented by the fact that the letter discussed potential breaches of safety and health regulations in a “safety critical” environment. The Court therefore acknowledges that the ATCOs work, by its very essence, is related to public safety. The Court cannot, however, conclude in the circumstances of the present case that the detriments imposed on the applicant for seeking to protect the labour-related interests of the Trade union members and safeguard the performance of their duties pursued the legitimate aim of protecting the rights and freedoms of the wider public or public safety, as argued by the Government. 110. With respect to the nature and severity of the repercussions, the Court considers that they were exceptionally harsh and clearly incompatible with the exercise of a legitimate trade union activity. By disregarding the trade union context the domestic courts ignored the applicant’ s position as a trade union representative and made her individually responsible for the Trade Union’s decision to communicate the grievances of its members to the employer’s owner. Furthermore, these sanctions were particularly punitive with respect to the applicant, given the sector she was employed in – LGS was the sole employer of civilian ATCOs in Latvia and her dismissal meant that her career as an ATCO in Latvia was terminated, with undeniable consequences for her private and professional life (compare Vogt v. Germany, 26 September 1995, § 60, Series A no. 323, and Gawlik, cited above, § 84). 111. The Court additionally notes that the detriments imposed on the applicant were in themselves capable of having a chilling effect on the Trade Union’s members (compare Ognevenko, cited above, § 83). However, there were still further actions taken by the LGS board – as confirmed by the case materials – that were directed at the Trade Union’s members, such as requiring them to sign statements under the threat of suspension, pressuring them to distance themselves from the Trade Union letter and the applicant, and calling for the Trade Union’s leadership to be changed (see paragraphs 17, 19, 20, 22 and 28 above), that were clearly aimed at exerting pressure on them. (iii) Conclusion 112. While the Court is mindful of the fundamentally subsidiary role of the Convention system, in the present case the domestic courts cannot be said to have applied standards that were in conformity with the principles deriving from Article 11 of the Convention, read in the light of Article 10, or to have based themselves on an acceptable assessment of the relevant facts. The Court accordingly concludes that the detriments imposed on the applicant were not compatible with the strict requirement of a “pressing social need” and were not proportionate to the legitimate aim pursued, and therefore could not be regarded as “necessary in a democratic society”. 113. There has accordingly been a violation of Article 11 of the Convention, read in the light of Article 10. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 114. The applicant complained that the hearings had been held in closed sessions and that the judgments were not available to the public, contrary to Article 6 of the Convention, which reads as follows: “1. In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice. ...” Admissibility 115. The Government submitted that the applicant could not claim to be a victim in relation to this complaint, as she had participated in all court hearings and had received the full texts of the judgments. 116. The applicant did not comment on this point. 117. The Court observes that the applicant’s complaint did not address her own participation in the proceedings within the context of her ability to present her case effectively but rather the exclusion of the public from the hearings and the absence of any public pronouncement of the judgments, depriving her of the right to have the administration of justice subjected to public scrutiny. The Court reiterates that the right to a public hearing and public pronouncement of judgments constitutes a fundamental principle enshrined in Article 6. The applicant’s complaint concerns proceedings to which she was a party; therefore, she is the direct victim of the violation complained of. The Government’s objection is therefore dismissed. 118. The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. MeritsThe applicant The applicant The applicant 119. The applicant complained that all the domestic courts had held their hearings in closed sessions, so the public had been unable to hear the evidence submitted and to scrutinise the court proceedings. Moreover, the judgments, aside from the operative parts thereof, had been secret too, so the public had not been able to evaluate the reasoning contained therein. That had deprived the applicant of the possibility of having her case sympathetically reported by the media. The case was of great importance for trade unionists, who could know only that the courts had upheld as legitimate a battery of what she considered discriminatory measures that had culminated in her dismissal. This had a chilling effect on trade unions. 120. There had been no valid reason for the courts to sit in camera. There had been nothing confidential about the issues raised by the letter, and no matters of national security had arisen in this case. The Government’s argument about the need to protect “the specific and vulnerable nature of the State sector” had not come close to the threshold of invoking national security as grounds for excluding the public. The Security Police document that had been classified as “restricted” had been the report stating the applicant had committed no breaches of security. Similarly, the evidence about the applicant’s state of health had merely indicated that she was perfectly healthy. The Government 121. The Government argued that the first-instance court had held five hearings, of which three had been closed, one had been partly closed, and one had been open to the public, thus at this level of jurisdiction some publicity had been ensured. The decision to hold closed hearings had been based on (i) the need to protect “information about the specific and vulnerable nature of the State sector where the company [provided] its services”, (ii) a document issued by the Security Police with a “restricted” classification status, (iii) the fact that during the three closed hearings specific internal procedures governing aeronavigation services had been discussed, and (iv) one of the witnesses had given testimony regarding the applicant’s state of health. 122. The operative parts of court judgments were always pronounced in public, and this rule had also been followed in this case. Full texts of the judgments in cases that had been examined in closed hearings were generally not available to the public; however, third persons could access anonymised copies of those judgments if they lodged a reasoned request with the court and their necessity was sufficiently justified. Such requests were then reviewed by the president of the court. Hence, even though the judgments in the present case were not widely accessible online or in the court’s registry, there were other means of obtaining them, which had been effectively used by researchers and students. The third-party interveners 123. The European Transport Workers’ Federation, the European Trade Union Confederation, and the International Federation of Air Traffic Controllers’ Associations all emphasised the importance of public hearings in cases involving allegations of oppression of trade union representatives. Such publicity protected the litigants against administration of justice in secret and without public scrutiny. A reference to flight safety was not sufficient for the exclusion of the public. The Court (a) The relevant principles 124. The Court reiterates that the holding of court hearings in public constitutes a fundamental principle that is enshrined in paragraph 1 of Article 6. This public character protects litigants against the administration of justice in secret with no public scrutiny; it is also one of the means whereby confidence in the courts can be maintained. By rendering the administration of justice transparent, publicity contributes to the achievement of the aim of Article 6 § 1 – namely a fair trial, the guarantee of which is one of the fundamental principles of any democratic society (see, for example, Martinie v. France [GC], no. 58675/00, § 39, ECHR 2006 ‑ VI; Malhous v. the Czech Republic [GC], no. 33071/96, § 55, 12 July 2001; and Nikolova and Vandova v. Bulgaria, no. 20688/04, § 67, 17 December 2013). These principles apply to both the public holding of hearings and to the public delivery of judgments, which have the same purpose (see Fazliyski v. Bulgaria, no. 40908/05, § 64, 16 April 2013). 125. Article 6 § 1 does not prohibit courts from derogating from these principles on the grounds listed in this provision in the event that holding proceedings in camera, either wholly or partly, is strictly required by the circumstances of the case in question (see the above-cited cases of Martinie, § 40, and Nikolova and Vandova, § 68). However, Article 6 § 1 encompasses a procedural obligation on the part of the courts to consider whether the exclusion of the public from a particular set of proceedings is necessary in the specific circumstances in order to protect the public interest, and to confine the measure to what is strictly necessary in order to attain the objective pursued (see Nikolova and Vandova, cited above, § 74). 126. As to the requirement that judgments be publicly pronounced, the Court has applied some degree of flexibility. Despite the wording of Article 6 § 1, which would seem to suggest that reading a judgment out in open court is required, other means of rendering it public may be compatible with that provision. As a general rule, the form of publicity to be given to the judgment under domestic law must be assessed in the light of the special features of the proceedings in question and by reference to the object and purpose of Article 6 § 1 (see Moser v. Austria, no. 12643/02, § 101, 21 September 2006, and Lorenzetti v. Italy, no. 32075/09, § 37, 10 April 2012). Even where full disclosure could compromise national security or the safety of others, the courts can use techniques that could accommodate legitimate security concerns without fully negating fundamental procedural guarantees such as the publicity of judicial decisions (see Fazliyski, cited above, § 69, and Raza v. Bulgaria, no. 31465/08, § 53, 11 February 2010). (b) The application of the relevant principles (i) The right to a public hearing 127. According to the material presented to the Court, before the first ‑ instance court the first hearing, which was public, was adjourned prior to the examination of the merits of the case, as the defendant lodged a counterclaim. During the second hearing, the first-instance court decided to examine the case in closed proceedings for the purposes of the “more efficient and successful administration of justice” (see paragraph 30 above). By contrast, the appellate court cited section 11(3)(1) of the Civil Procedure Law, which allows for closed hearings when they are “necessary for the protection of a State secret or a commercial secret”, without giving any further reasons (see paragraphs 39 and 53 above). The appeal on points of law was examined in written proceedings. Accordingly, the Court observes that no public hearing within the meaning of Article 6 § 1 was held in respect of the merits of the applicant’s case. 128. However, the Court is unable to conclude that the exclusion of the public was demonstrated as being required in order to protect the public interests listed in Article 6 § 1 and that the domestic courts complied with their procedural obligation to carefully consider the necessity for such a measure. Firstly, the domestic courts did not invoke any grounds that would correspond to the exceptions laid down in the second sentence of Article 6 § 1 (compare Malhous, cited above, § 56). Secondly, they provided no explanation as to how the grounds that they did rely on related to the circumstances of the case. The mere reference to a “more efficient and successful administration of justice” made by a first-instance court without further elaboration is not sufficient to justify the exclusion of the public from trial proceedings. Moreover, the courts have not stated and the Government have not argued that the case concerned State secrets or commercial secrets; therefore, the appellate court’s reference to the need to preserve such secrecy as grounds for excluding the public cannot be sustained. The only document that did have “restricted” status indicated that the applicant had committed no breaches of security, and in any case had limited relevance to the dispute in question. It clearly could not serve as grounds for excluding the public. 129. With respect to the argument advanced by LGS and reiterated by the Government to the effect that the case concerned sensitive information regarding flight safety, the Court notes that also this consideration was not analysed by the domestic courts to justify the closed hearing. The case concerned the question of whether the applicant as a trade union representative could be penalised for expressing the opinion that deficiencies in ATCOs’ employment and training conditions could affect flight safety in the future. The Court has not been presented with information demonstrating that in determining this question the domestic courts needed to examine sensitive information on flight safety justifying the exclusion of the public. On the other hand, the case dealt with a fundamental aspect of the trade union freedom. Not only did it directly affect the Trade Union that the applicant represented, it was also of great importance to other trade unions, which manifested their interest by requesting the appeal court to hold the hearing in public and by holding a public demonstration outside the courthouse (see paragraph 39 above). In the present case the specific nature of the subject matter rendered the need for public scrutiny particularly strong (compare Lorenzetti, cited above). Despite that, the domestic courts did not carry out an assessment on whether the exclusion of the public from the proceedings was necessary, and did not attempt to confine the measure to what was strictly necessary in order to attain the objective pursued. (ii) The right to the public delivery of judgments 130. The Court observes that none of the judgments were pronounced publicly, with only the operative part of the appellate court’s judgment being read out in a public hearing (see paragraphs 32, 40 and 42 above). Hence, it has to be established whether the publicity of those judgments was sufficiently ensured by other means. 131. Where public hearings have been held by lower instance courts the Court has deemed that the requirement of publicity was ensured if anyone who established an interest could consult the judgment or obtain a copy at the registry, coupled with the fact that decisions of special interest were routinely published (see Lorenzetti, cited above, §§ 37 ‑ 38, and the references cited therein). Where, however, dispensing with a public hearing was not justified, such means of rendering decisions public was not considered sufficient to have ensured compliance with the requirements of Article 6 § 1 (see Moser, cited above, § 103). 132. In the present case, the full texts of the judgments were not available to the public owing to the fact that the case was examined in closed hearings. Even though the Government argued that requests could be lodged for anonymised copies of the judgments, interested persons had to provide sufficient justification for such a request, and the decision was left to the discretion of the president of the court in question. This option appeared to be primarily intended to accommodate requests lodged for research purposes, and the Government have not shown that there were rules or practice ensuring that requests were granted systematically. Seeing that the decisions to examine the instant case in closed hearings were not sufficiently justified, the available means for rendering the decisions public were not sufficient to meet the requirement that judgments be pronounced publicly. (iii) Conclusion 133. In the present case, the object pursued by Article 6 § 1 – that of ensuring the scrutiny of the judiciary by the public with a view to safeguarding the right to a fair trial – was not achieved, as the reasoning that might have made it possible to understand why the applicant’s claims had been rejected was inaccessible to the public (compare Ryakib Biryukov v. Russia, no. 14810/02, § 45, ECHR 2008). There has accordingly been a violation of Article 6 of the Convention with respect to the failure to ensure the rights to both a public hearing and the public delivery of the judgments. APPLICATION OF ARTICLE 41 OF THE CONVENTION 134. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” Damage 135. The applicant claimed 103,446.98 euros (EUR) in respect of pecuniary damage. The claim was composed of EUR 5,335.43 regarding salary arrears from 14 May 2012 until 26 June 2012, when the applicant had been suspended without pay, plus an additional sum of EUR 98,111.55 regarding the income that she would have earned up until 31 March 2017 had she not been dismissed (minus the income that she had acquired after her dismissal from other sources). The applicant also claimed EUR 50,000 in respect of non ‑ pecuniary damage. 136. The Government considered that a finding of a violation would constitute sufficient redress in respect of both pecuniary and non-pecuniary damage sustained. As to the calculation of the applicant’s unpaid salary during her suspension, they noted that the applicant’s calculation was based on her gross daily wage (EUR 172.11) and should rather be based on her basic net daily wage, which excluded all benefits and bonuses (EUR 127.65). 137. The Court considers that the pecuniary damage sustained owing to the revocation of the applicant’s pay during the suspension period was the direct consequence of the violation of Article 11 found. The Court further observes that the applicant has submitted a calculation, issued by the LGS’ accountancy department on 16 July 2012, concerning her gross daily wage for the past six months prior to her suspension (120.96 Latvian lati or EUR 172.11, applying the fixed exchange rate), which according to the Latvian Labour Law had to be used when calculating compensation for unjustified suspension. The Court also notes that the benefits and bonuses formed an integral part of the applicant’s salary and there is no reason to assume that she would not have received those payments, had the violation of Article 11 not occurred. 138. With respect to the remainder of the claims regarding pecuniary damage, the Court observes that they concern the income the applicant would have received had she not been dismissed. However, the applicant’s claim that she would have continued working on the same post and earned the same salary until 31 March 2017, that is, until the moment she formulated her just satisfaction claim sent to the Court on 4 April 2017, is speculative. Also, it would be speculative for the Court to assume that the full difference between the applicant’s salary before her dismissal and the income she earned after that was a direct consequence of her dismissal. Nonetheless, the Court considers that the applicant must have suffered pecuniary damage as a result of her dismissal. The Court also notes that owing to the domestic prescription periods (see paragraph 50 above) the applicant can no longer bring a claim concerning her unfair dismissal. 139. The Court further finds that the applicant has suffered non ‑ pecuniary damage on account of the breaches of Article 6 § 1 and Article 11 of the Convention, read in the light of Article 10. 140. Consequently, ruling on an equitable basis, the Court awards the applicant EUR 25,000, plus any tax that may be chargeable, with respect to both pecuniary and non-pecuniary damage. Costs and expenses 141. The applicant also claimed EUR 4,607.62 for the costs and expenses incurred before the domestic courts and EUR 6,954.66 for those incurred before the Court. 142. The Government agreed to the costs and expenses claimed with respect to the domestic proceedings, noting only that according to the official conversion rate the sum should be set at EUR 4,588.76. However, with respect to the costs and expenses incurred before the Court, the Government argued that there was no proof that those costs had been actually and necessarily incurred, as only invoices (but no proof of payment) had been submitted. They also argued that the costs claimed were exorbitant and unreasonable. 143. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. A representative’s fees are actually incurred if the applicant has paid them or is liable to pay them (see Merabishvili v. Georgia [GC], no. 72508/13, § 371, 28 November 2017). In the present case, the invoices submitted by the applicant demonstrate her obligation to pay the legal fees charged by her British representatives with respect to the proceedings before the Court. Accordingly, regard being had to the documents in its possession and the above-noted criteria, the Court considers that the legal costs claimed by the applicant with respect to the domestic proceedings and the proceedings before the Court both were actually incurred and relate to the violations it has found. It does not agree with the Government that the claim for costs is excessive. Accordingly, the Court considers it reasonable to award the sum of EUR 11,562.28 covering costs under all heads, plus any tax that may be chargeable to the applicant. Default interest 144. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 11 (freedom of assembly and association) read in the light of Article 10 (freedom of expression) of the Convention, finding that, overall, the measures taken in the applicant’s case – in particular the disciplinary investigation, her suspension, “idle standing” and dismissal – had not been proportionate to the legitimate aim pursued, namely that of protecting the rights of her employer, and had thus not been “necessary in a democratic society”. The Court also held that there had been a violation of Article 6 (right to a fair trial) of the Convention, owing to the failure to ensure the rights both to a public hearing and to the public delivery of the judgments in the present case. It noted, in particular, that the domestic courts had not justified the need to hold the civil proceedings in a closed courtroom and to not have the judgments delivered or made available publicly, despite the great need in this case for public scrutiny. |
1,020 | Care allowances and personal assistance | II. RELEVANT DOMESTIC LAW AND PRACTICE 26. Section 47 of the National Health Service and Community Care Act 1990 (“the 1990 Act”) provides that: “ ( 1) Subject to subsections (5) and (6) below, where it appears to a local authority that any person for whom they may provide or arrange for the provision of community care services may be in need of any such services, the authority— (a) shall carry out an assessment of his needs for those services; and (b) having regard to the results of that assessment, shall then decide whether his needs call for the provision by them of any such services. ... ... ... (4)The Secretary of State may give directions as to the manner in which an assessment under this section is to be carried out or the form it is to take but, subject to any such directions and to subsection (7) below, it shall be carried out in such manner and take such form as the local authority consider appropriate.” 27. Disabled persons also have an individual right to certain services under section 2(1) of the Chronically Sick and Disabled Persons Act 1970 (“the 1970 Act”), which reads as follows: “Where a local authority having functions under section 29 of the National Assistance Act 1948 are satisfied in the case of any person to whom that section applies who is ordinarily resident in their area that it is necessary in order to meet the needs of that person for that authority to make arrangements for all or any of the following matters, namely— (a) the provision of practical assistance for that person in his home; ... ... ... then, ... it shall be the duty of that authority to make those arrangements in exercise of their functions under the said section 29.” 28. It was decided by the House of Lords in R v Gloucestershire County Council Ex p Barry [1997] AC 584 (by a majority of three to two) that “need” was a relative concept and that needs for services could not sensibly be assessed without having some regard to the cost of providing them. A person ’ s need for a particular type or level of service could not be decided in a vacuum from which all other considerations of cost had been expelled. Consequently, the position subsequently established was that the local authority was under a duty to make an assessment of needs under section 47(1 )( a) of the 1990 Act and in doing so might take account of its resources. If the need fell into one of the four bands described in the Fair Access to Care Services (“FACS”) Guidance (critical, substantial, moderate or low) – which, having regard to its resources, the local authority had indicated it would meet – then it had to meet that need. In deciding how to meet the need, the local authority was entitled to take account of its resources. 29. The FACS Guidance issued on 1 January 2003 (which remained in force until new guidance was issued in February 2010) provided, as relevant, that: councils should ensure that individuals in similar circumstances receive services capable of achieving broadly similar outcomes; reviews should be undertaken at regular intervals to ensure that the care provided to individuals is still required and is achieving the agreed outcomes; and that reviews should establish how far the services provided have achieved the outcomes set out in the care plan, reassess the needs and circumstances of individual service users, help determine individuals ’ continued eligibility for support, and confirm or amend the current care plan. III. RELEVANT INTERNATIONAL LAW A. The United Nations Convention on the Rights of Persons with Disabilities 30. Article 3 provides, as relevant, that: “ The principles of the present Convention shall be: a. Respect for inherent dignity, individual autonomy including the freedom to make one ’ s own choices, and independence of persons; ... ... ... ” 31. Article 17 provides that: “ Every person with disabilities has a right to respect for his or her physical and mental integrity on an equal basis with others. ” 32. Finally, Article 19 provides that: “ States Parties to this Convention recognize the equal right of all persons with disabilities to live in the community, with choices equal to others, and shall take effective and appropriate measures to facilitate full enjoyment by persons with disabilities of this right and their full inclusion and participation in the community, including by ensuring that: a. Persons with disabilities have the opportunity to choose their place of residence and where and with whom they live on an equal basis with others and are not obliged to live in a particular living arrangement; b. Persons with disabilities have access to a range of in-home, residential and other community support services, including personal assistance necessary to support living and inclusion in the community, and to prevent isolation or segregation from the community; c. Community services and facilities for the general population are available on an equal basis to persons with disabilities and are responsive to their needs. ” B. The European Union Charter of Fundamental Rights 33. Article 1 provides that “[h] uman dignity is inviolable. It must be respected and protected. ” 34. The United Kingdom has signed a protocol to the Charter which precludes, inter alia, the domestic courts and the EU ’ s courts from finding that its “ laws, regulations or administrative provisions, practices or action” are inconsistent with the Charter. However, there is considerable debate concerning the legal effect of the protocol. THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 35. The applicant complained under Article 8 of the Convention that the withdrawal of night-time care disproportionately interfered with her right to respect for her private life. In the alternative, she complained that by withdrawing the service the respondent State was in breach of its positive obligation to provide her with a service which enabled her to live with dignity. Article 8 of the Convention reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 36. The Government contested that argument. A. Admissibility 37. The Government submitted that the Court should declare the Article 8 complaint inadmissible because it was manifestly ill-founded. The Court considers that the issue of whether or not the applicant ’ s complaint is manifestly ill-founded is closely linked to the merits. It therefore considers it necessary to join the Government ’ s objection to the merits of the applicant ’ s complaint. B. Merits 1. The applicant ’ s submissions 38. The applicant submitted that the decision to withdraw night-time care from her and require her to use incontinence pads, even though she was not incontinent, constituted an unjustified interference with her right to respect for her private life. In particular, she argued that it was difficult to conceive of a factual situation which established more of a “direct and immediate link” to the rights protected under Article 8 than a disabled person ’ s need or assistance to reach a toilet or commode where they could urinate and defecate in dignity. The aspects of Article 8 of the Convention relating to personal and psychological integrity were all in play, and the interference affected the applicant ’ s ability to maintain an independent life at home and negatively impacted on her family life with her partner. Moreover, it exposed her to considerable indignity and placed significant caring responsibilities on her partner, who had made it clear that he was unable to act as her carer. 39. In any case, the applicant submitted that up until 4 November 2009 the interference with her private life had not been in accordance with the law. 40. In the alternative, the applicant submitted that the respondent State had been under a positive obligation to provide night-time care given the special link between the provision of this care and her psychological integrity. The applicant ’ s local authority (the Royal Borough of Kensington and Chelsea) was one of the wealthiest in the United Kingdom and there would therefore have been no overwhelming cost barrier to the provision of such care. 41. The applicant further submitted that both the UN Convention on the Rights of Persons with Disabilities (see paragraphs 30 - 32 above) and the EU Charter of Fundamental Rights (see paragraphs 33 and 34 above) made it clear that a person ’ s inherent dignity and individual autonomy should be at the heart of the Article 8 right to private life. In particular, Article 19 of the Disability Convention required State parties to provide the personal assistance necessary to support living and inclusion in the community. According to the applicant, the only way that she could live a dignified life was through the continued provision of a night-time carer. 42. Finally, the applicant argued that the Supreme Court in the present case had wrongly applied the doctrine of the margin of appreciation to give such a margin to the executive (see paragraph 2 4 above). As a consequence, no proper consideration was given by the domestic courts to the proportionality and/or fairness of the decision in the applicant ’ s case and, if the Court were also to afford the same margin of appreciation to the State, there would have been no real proportionality assessment by any court. 2. The Government ’ s submissions 43. The Government submitted that there had been no interference with the applicant ’ s rights under Article 8 of the Convention. While they accepted that matters such as dignity and personal autonomy fell within the ambit of Article 8, they argued that the care provided to the applicant during the relevant period had respected her dignity and private life even if it was not the care package that she had wanted. However, the Government accepted that if the Court were to find that there had been an interference with the applicant ’ s rights as defined in paragraph 1 of Article 8, that interference would have constituted a violation from 21 November 2008 to 4 November 2009 because it was not “ in accordance with the law ” as required by the second paragraph of that Article. 44. From 4 November 2009 onwards, any interference was in accordance with the law and was necessary and proportionate in the interests of other care- users and the economic well-being of the State given the substantial demand for adult care services. In this regard, the Government noted that the Court has repeatedly held that while States enjoy a wide margin of appreciation in striking a fair balance between the competing interests of the individual and of the community as a whole, this margin is even wider where the issues involve an assessment of priorities in the context of the allocation of limited State resources (see, for example, Sentges v. the Netherlands ( dec. ), no. 27677/02, 8 July 2003, Pentiacova and Others v. Moldova ( dec. ), no. 14462/03, ECHR 2005 ‑ I, Molka v. Poland ( dec. ), no. 56550/00, 11 April 2006). The Government therefore submitted that the decision to withdraw night-time care was proportionate and fell within its margin of appreciation. 45. The Government accepted that the applicant had been entitled to support at night in accordance with her right to respect for her private life, including her dignity and personal autonomy; however, in determining what measures should be adopted to fulfil her need, the State was entitled to have regard to the interests of other care users and the limited resources available to meet the substantial demand for adult care services. The Government therefore argued that it was not under any positive obligation to provide the applicant with the requisite support in the form of night-time care. To the extent that it was under a duty by virtue of Article 8 to provide her with a service which enabled her to live with dignity, that obligation had been met by the care package provided by the local authority. 3. The Court ’ s assessment (a) The scope of Article 8 46. The first question which arises is whether the facts of the case fall within the scope of the concept of “respect” for “private life” set forth in Article 8 of the Convention. In this regard, the Court has previously held that the notion of “private life” within the meaning of Article 8 is a broad concept which encompasses, inter alia, a person ’ s physical and psychological integrity (see Niemietz v. Germany, 16 December 1992, § 29, Series A no. 251 ‑ B and Botta v. Italy, 24 February 1998, § 32, Reports of Judgments and Decisions 1998 ‑ I ); the right to “ personal development ” (see Bensaid v. the United Kingdom, no. 44599/98, § 47, ECHR 2001 ‑ I); and the notion of personal autonomy (see Pretty v. the United Kingdom, no. 2346/02, § 61, ECHR 2002 ‑ III). In a number of cases the Court has held that Article 8 was relevant to complaints about public funding to facilitate the mobility and quality of life of disabled applicants (see, for example, Zehnalová and Zehnal v. the Czech Republic ( dec. ), no. 38621/97, ECHR 2002 ‑ V and Sentges v. the Netherlands ( dec. ), no. 27677/02, 8 July 2003). 47. In Pretty the Court held that the very essence of the Convention was respect for human dignity and human freedom; indeed, it was under Article 8 that notions of the quality of life took on significance because, in an era of growing medical sophistication combined with longer life expectancies, many people were concerned that they should not be forced to linger on in old age or in states of advanced physical or mental decrepitude which conflicted with their strongly held ideas of self and personal identity ( Pretty v. the United Kingdom, cited above, § 65). Although the facts of the present case differ significantly from those of Pretty, insofar as the present applicant believed that the level of care offered by the local authority would have undignified and distressing consequences, she too was faced with the possibility of living in a manner which “conflicted with [her] strongly held ideas of self and personal identity ”. In the Supreme Court, Baroness Hale, in her dissenting opinion, appeared to accept that considerations of human dignity were engaged when someone who could control her bodily functions was obliged to behave as if she could not (see paragraph 25 above ). The Court agrees with this general assessment of the applicant ’ s situation and it does not exclude that the particular measure complained of by the applicant in the present case was capable of having an impact on her enjoyment of her right to respect for private life as guaranteed under Article 8 § 1 of the Convention. It therefore finds that the contested measure reducing the level of her healthcare falls within the scope of Article 8. (b) Positive obligation or interference with a right? 48. The Court has previously considered a number of earlier cases concerning funding for care and medical treatment as falling within the sphere of possible positive obligations because the applicants complained in substance not of action but of a lack of action by the respondent States (see, for example, Sentges v. the Netherlands and Pentiacova v. Moldova, both cited above). Those cases concerned the refusal by the State to provide funding for medical equipment and/or treatment. In the present case, however, the local authority had initially provided the applicant with a night-time carer, albeit, in the description of the Supreme Court, as a “concession” granted on a “temporary basis” (see paragraph 11 above ). The applicant is therefore complaining not of a lack of action but rather of the decision of the local authority to reduce the care package that it had hitherto been making available to her. As such, a more appropriate comparator would be the case of Watts v. The United Kingdom ( dec. ), no. 53586/09 of 4 May 2010, in which the Court was content to proceed on the basis that a decision to close the care home where the elderly applicant was resident and to transfer her to another home constituted an interference with her rights under Article 8. 49. The Court is likewise prepared to approach the present case as one involving an interference with the applicant ’ s right to respect for her private life, without entering into the question whether or not Article 8 § 1 imposes a positive obligation on the Contracting States to put in place a level of entitlement to care equivalent to that claimed by the applicant. (c) Compliance with Article 8 § 2 50. Such an interference will be in breach of Article 8 of the Convention unless it can be justified under paragraph 2 of Article 8 as being “in accordance with the law”, pursuing one or more of the legitimate aims listed therein, and being “necessary in a democratic society” in order to achieve the aim or aims concerned. ( i ) The period from 21 November 2008 to 4 November 2009 51. The Supreme Court (see paragraph 24 above), upholding the Court of Appeal (see paragraph 19 above), held that the local authority had been in breach of its statutory duty to provide care to the applicant in accordance with its own assessment of her need for care (namely a need for assistance to use a commode during the night ) between 21 November 2008 (the date of the letter from the local authority withdrawing night-time care – see paragraph 12 above) and 4 November 2009 (the date of the authority ’ s first care plan review – see paragraph 16 above). In light of this finding, the Government have accepted (see paragraph 43 above) that during this period any interference with the applicant ’ s right to respect for her private life was not “ in accordance with the law ” as required by paragraph 2 of Article 8. 52. The Court cannot but find that from 21 November 2008 to 4 November 2009 the interference with the applicant ’ s right to respect for her private life was in breach of Article 8 of the Convention on this ground. ( ii ) From 4 November 2009 onwards 53. From 4 November 2009 onward, there is no doubt that the interference was “ in accordance with the law ”. The Court also accepts that the interference pursued a legitimate aim, namely the economic well-being of the State and the interests of the other care-users. It therefore falls to the Court to consider whether the decision not to provide the applicant with a night-time carer to help her to access a commode was “necessary in a democratic society” for the purposes of paragraph 2 of Article 8 and, in particular, in that connection, was proportionate to the legitimate aim pursued. 54. In conducting the balancing act required by Article 8 § 2 the Court has to have regard to the wide margin of appreciation afforded to States in issues of general policy, including social, economic and health-care policies (see James and Others v. the United Kingdom, 21 February 1986, § 46, Series A no. 98; Shelley v. the United Kingdom ( dec. ), no. 23800/06, 4 January 2008); and Hatton and Others v. the United Kingdom [GC], no. 36022/97, § 97, ECHR 2003 ‑ VIII). The margin is particularly wide when, as in the present case, the issues involve an assessment of priorities in the context of the allocation of limited State resources (see, mutatis mutandis, Osman v. the United Kingdom, judgment of 28 October 1998, Reports 1998-VIII, p. 3159, § 116, O ’ Reilly and Others v. Ireland ( dec. ), no. 54725/00, 28 February 2002, unreported). In view of their familiarity with the demands made on the health care system as well as with the funds available to meet those demands, the national authorities are in a better position to carry out this assessment than an international court. 55. In the present case the Supreme Court primarily considered the applicant ’ s Article 8 complaint within the sphere of positive obligations. It therefore had to consider whether or not a fair balance had been struck between the interests of the applicant and those of the wider community and it would have been impossible to do so without addressing one of the fundamental principles underpinning the Court ’ s jurisprudence in such cases: namely, that States are afforded a wide margin of appreciation in issues of general policy, and that margin is particularly wide when the issues involve an assessment of the priorities in the context of the allocation of limited State resources (see paragraph 5 4 above). 56. In any case, the Court observes that the proportionality of the decision to reduce the applicant ’ s care package was fully considered, first by the local authority in the course of its regular Care Plan Reviews and, secondly, by the domestic courts (including the Court of Appeal and the Supreme Court). In particular, in concluding that there had been no interference with the applicant ’ s rights under Article 8, Lord Brown considered the great lengths to which the local authority had gone to consult – and, in fact, to reach an agreement with – the applicant and her partner. He further noted that the applicant ’ s personal feelings and desires had properly been balanced against the local authority ’ s concern for her safety, independence and respect for other care-users. Finally, he concluded that even if there had been an interference with her right to respect for her private life, save for the period prior to 4 November 2009 review when the proposed care provision was not “ in accordance with the law ”, the interference would have been necessary for the economic well-being of the respondents (that is, the local authority) and the interests of their other care ‑ users and would therefore have been a proportionate response to her needs because it would have afforded her the maximum protection from injury, greater privacy and independence, and would have resulted in a substantial costs saving (see paragraph 24 above). 57. The Court is satisfied that the national courts adequately balanced the applicant ’ s personal interests against the more general interest of the competent public authority in carrying out its social responsibility of provision of care to the community at large. It cannot, therefore, agree with the applicant that there has been no proper proportionality assessment at domestic level and that any reliance by it on the margin of appreciation would deprive her of such an assessment at any level of jurisdiction. In such cases, it is not for this Court to substitute its own assessment of the merits of the contested measure (including, in particular, its own assessment of the factual details of proportionality) for that of the competent national authorities (notably the courts) unless there are shown to be compelling reasons for doing so (see, for example, X v. Latvia [GC], no. 27853/09, § 102, ECHR 2013). The present applicant has not adduced any such compelling reasons in her pleadings before this Court. 58. The foregoing considerations are sufficient to enable the Court to conclude that from 4 November 2009 onwards the interference with the applicant ’ s right to respect for her private life was both proportionate and justified in terms of the requirement of “necessity in a democratic society” under Article 8 § 2. The Court by no means wishes to underestimate the difficulties encountered by the applicant and it appreciates the very distressing situation she is facing. Nevertheless, the Court is of the opinion that in reducing her care-package it cannot be said that the competent authorities of the respondent State exceeded the margin of appreciation afforded to them, notably in relation to the allocation of scarce resources. It follows that in respect of this period the complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. (iii) Conclusion 59. There has accordingly been a violation of Article 8 of the Convention in respect of the period from 21 November 2008 to 4 November 2009. The remainder of the applicant ’ s complaint is inadmissible. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 60. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 61. The applicant claimed ten thousand euros (EUR 10,000 ) in respect of non-pecuniary damage. 62. The Government submitted that a finding of a violation was itself sufficient to provide just satisfaction. No award of damages was therefore appropriate. 63. The Court awards the applicant EUR 1,000 in respect of non ‑ pecuniary damage. In arriving at this figure, it has taken account of the fact that the applicant continued to receive night-time care seven days a week up to November 2008; that from November 2008 to December 2008 she continued to receive night-time care five days a week; and between December 2008 and 4 November 2009 (representing the end of the period in respect of which the Court has found a violation of Article 8) she received night-time care four nights a week. Moreover, on the nights when she did not receive night-time care, her partner was on hand to assist her with her nightly toileting needs. B. Costs and expenses 64. The applicant also claimed GBP 9,822 for the costs and expenses incurred before the Court. 65. The Government submitted that this figure was excessive. 66. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of GBP 9,500 covering costs under all heads. C. Default interest 67. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court considered that the decision to reduce the amount allocated for the applicant’s care had interfered with her right to respect for her family and private life, insofar as it required her to use incontinence pads when she was not actually incontinent. It held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention in respect of the period between 21 November 2008 and 4 November 2009 because the interference with the applicant’s rights had not been in accordance with domestic law during this period. The Court further declared inadmissible (manifestly ill-founded) the applicant’s complaint concerning the period after 4 November 2009 because the State had considerable discretion when it came to decisions concerning the allocation of scarce resources and, as such, the interference with the applicant’s rights had been “necessary in a democratic society”. |
377 | Ill-treatment by prison officers | II. RELEVANT DOMESTIC LAW AND PRACTICE 48. Article 291 of the Penal Code ( Karistusseadustik ) stipulates that abuse of authority, that is unlawful use of a weapon, special equipment or violence by an official while performing his or her official duties, is punishable by a fine or by one to five years ’ imprisonment. 49. Relevant domestic law and practice concerning the use of special equipment and means of restraint in prison has been summarised in the judgement of Julin v. Estonia (nos. 16563/08, 40841/08, 8192/10 and 18656/10, §§ 84 ‑ 90 and 94, 29 May 2012). III. RELEVANT INTERNATIONAL STANDARDS 50. For relevant international instruments concerning the use of instruments of restraint, see Julin, cited above, §§ 95-97, and Kummer v. the Czech Republic, no. 32133/11, §§ 40-43, 25 July 2013. 51. According to the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction of 13 January 1993 (“the CWC”), tear gas is not considered a chemical weapon and its use is authorised for the purpose of law enforcement, including domestic riot control (Article II § 9 (d)). The CWC entered into force with regard to Estonia on 25 June 1999. 52. The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) has expressed its concerns over the use of such agents in law enforcement. For example, in the report on its visit to Bosnia and Herzegovina (CPT/Inf (2009) 25) it noted: “79. ... Pepper spray is a potentially dangerous substance and should not be used in confined spaces. Even when used in open spaces the CPT has serious reservations; if exceptionally it needs to be used, there should be clearly defined safeguards in place. For example, persons exposed to pepper spray should be granted immediate access to a medical doctor and be offered an antidote. Pepper spray should never be deployed against a prisoner who has already been brought under control. Further, it should not form part of the standard equipment of a prison officer. The CPT recommends that the authorities of Bosnia and Herzegovina draw up a clear directive governing the use of pepper spray, which should include, as a minimum: - clear instructions as to when pepper spray may be used, which should state explicitly that pepper spray should not be used in a confined area; - the right of prisoners exposed to pepper spray to be granted immediate access to a doctor and to be offered an antidote; - the qualifications, training and skills of staff members authorised to use pepper spray; - an adequate reporting and inspection mechanism with respect to the use of pepper spray. ” Similar observations and recommendations were made by the CPT in paragraph 48 of the report on its visit to the Czech Republic ( CPT/Inf (2009) 8). THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 53. The applicant complained of ill-treatment on 3 and 4 July 2009 by prison officers in breach of Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 54. The Government contested that argument. A. General principles 55. As the Court has stated on many occasions, Article 3 of the Convention enshrines one of the most fundamental values of democratic societies. It prohibits in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim ’ s conduct (see Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000 ‑ IV, and Chahal v. the United Kingdom, 15 November 1996, § 79, Reports of Judgments and Decisions 1996 ‑ V). 56. Ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 of the Convention. The assessment of this minimum level of severity is relative: it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and health of the victim (see, among other authorities, Peers v. Greece, no. 28524/95, § 67, ECHR 2001 ‑ III, and Ireland v. the United Kingdom, 18 January 1978, § 162, Series A no. 25). 57. Thus, treatment has been held by the Court to be “inhuman” because, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical and mental suffering, and also “degrading” because it was such as to arouse in the victims feelings of fear, anguish and inferiority capable of humiliating and debasing them (see, for example, Kudła v. Poland [GC], no. 30210/96, § 92, ECHR 2000-XI, and Van der Ven v. the Netherlands, no. 50901/99, § 48, ECHR 2003 ‑ II). In order for punishment or treatment to be “inhuman” or “degrading”, the suffering or humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment (see, for example, V. v. the United Kingdom [GC], no. 24888/94, § 71, ECHR 1999-IX, and Van der Ven, loc. cit.). 58. The use of handcuffs or other instruments of restraint does not normally give rise to an issue under Article 3 of the Convention where the measure has been imposed in connection with lawful detention and does not entail the use of force, or public exposure, exceeding what is reasonably considered necessary. In this regard, it is important to consider, for instance, the danger of the person ’ s absconding or causing injury or damage (see, among other authorities and mutatis mutandis, Raninen v. Finland, 16 December 1997, § 56, Reports 1997-VIII; Mathew v. the Netherlands, no. 24919/03, § 180, ECHR 2005 ‑ IX; and Kuzmenko v. Russia, no. 18541/04, § 45, 21 December 2010 ). 59. The Court is mindful of the potential for violence that exists in penal institutions and of the fact that disobedience by detainees may quickly cause a situation to degenerate (see Gömi and Others v. Turkey, no. 35962/97, § 77, 21 December 2006). The Court accepts that the use of force may be necessary on occasion to ensure prison security, and to maintain order or prevent crime in detention facilities. Nevertheless, such force may be used only if indispensible and must not be excessive (see Ivan Vasilev v. Bulgaria, no. 48130/99, § 63, 12 April 2007, with further references). Recourse to physical force which has not been made strictly necessary by the detainee ’ s own conduct diminishes human dignity and is in principle an infringement of the right set forth in Article 3 of the Convention (see, among others, Ribitsch v. Austria, 4 December 1995, § 38, Series A no. 336; Vladimir Romanov v. Russia, no. 41461/02, § 63, 24 July 2008; and Sharomov v. Russia, no. 8927/02, § 27, 15 January 2009). 60. The Court reiterates that allegations of ill-treatment must be supported by appropriate evidence. In assessing evidence, the Court has generally applied the standard of proof “beyond reasonable doubt” (see Ireland v. the United Kingdom, cited above, § 161). However, such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons under their control in custody, strong presumptions of fact will arise in respect of injuries occurring during such detention. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII). 61. Where domestic proceedings have taken place, it is not the Court ’ s task to substitute its own assessment of the facts for that of the domestic courts and, as a general rule, it is for those courts to assess the evidence before them (see Klaas v. Germany, 22 September 1993, § 29, Series A no. 269). Although the Court is not bound by the findings of domestic courts, in normal circumstances it requires cogent elements to lead it to depart from the findings of fact reached by those courts (see Matko v. Slovenia, no. 43393/98, § 100, 2 November 2006). Where allegations are made under Article 3 of the Convention, however, the Court must apply a particularly thorough scrutiny (see, mutatis mutandis, Ribitsch, cited above, § 32). B. Application of the principles to the present case 1. Events of 3 July 2009 Admissibility 62. The Court notes that the applicant ’ s complaint of ill-treatment on 3 July 2009 related to the force used by the prison officers in response to his refusal to comply with their order to move to a punishment cell. It can be understood on the basis of the available information that the applicant voiced threats against the guards, or at least explicitly declared his intention not to comply and, moreover, to even resist them (see paragraphs 7, 10 and 45 above). The Court notes that this was not denied by the applicant (see paragraph 37 above). Thus, in order to secure the fulfilment of the order, three prison officers went to the applicant ’ s cell in order to handcuff him and take him to the punishment cell. The Court notes that the prison officers only relied on the use of a shield, flak jackets and helmets, that is to say, measures of passive defence. 63. As regards the intensity of the force used against the applicant, the Court notes that the applicant did not deny that he had resisted the prison officers. Furthermore, he did not allege that he had been beaten but mentioned having been kicked in the ribs once (see paragraphs 9 and 43 above), whereas the prison guards denied having kicked the applicant at all (see paragraph 10 above). Overall, the applicant ’ s description of the events appears to refer to the use of immobilisation techniques by the guards rather than anything close to indiscriminate beating. The Court also notes in this regard that according to the medical evidence the applicant ’ s only injury established in connection with the confrontation on 3 July 2009 was the crepitation in the area of the seventh rib. A broken rib was initially suspected but this was not confirmed by an X-ray examination. No other injuries were mentioned (see paragraphs 11, 21 and 23 above). The Court considers that it is not called upon to determine the exact origin of the applicant ’ s chest injury – whether it originated in his having been abruptly forced to the floor, a kick from a prison officer or a combination thereof. Having had regard to all the information available to it including the findings of the domestic authorities in the criminal and administrative court proceedings, the testimonies concerning the applicant ’ s behaviour on 3 July 2009, the evidence related to his personality and prior behaviour and the medical evidence, the Court considers that the use of force on 3 July 2009 did not go beyond what may be considered necessary in the circumstances. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. 2. Events of 4 July 2009 (a) Admissibility 64. The Court notes that the complaint about the applicant ’ s ill-treatment on 4 July 2009 is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. (b) Merits (i) The parties ’ submissions ( α ) The applicant 65. The applicant argued that he had been ill-treated by the prison officers on 4 July 2009 and that the ill-treatment in question had amounted to torture. The use of measures such as handcuffs, a telescopic baton, pepper spray and a restraint bed in relation to a single incident by a group of six prison officers had been entirely disproportionate. He submitted that he had been beaten, kicked and subjected to ill-treatment with pepper spray, as a result of which he had suffered intense pain over the course of several days. He also claimed that he had been traumatised by the experience and suffered from feelings of insecurity and helplessness. 66. The applicant contended that following the incident of 3 July 2009 he had had reason to believe that he was allowed to have a mattress in his cell on a permanent basis, based on his earlier medical examinations and the doctors ’ opinions. 67. The applicant disputed the Government ’ s argument that he had been aggressive and had offered physical resistance. There was no evidence to that effect. On the contrary, he had not been in a condition to put up a fight against prison officers, due to the fact that he had been disabled by the pepper spray. In fact, he had been choking and in agony. The use of pepper spray against prisoners was not allowed and the use of physical force against him while handcuffed and otherwise being beaten pointed to the disproportionate use of force. The applicant referred to the statements of prison officers OV and AJ, according to whom he had first been handcuffed and thereafter beaten with a telescopic baton. 68. The applicant argued that the medical evidence indicated that the ill-treatment he had been subjected to on 4 July 2009 amounted to torture. In particular, he referred to a broken rib, scratches, abrasions and bruises, crepitation in the area of the eighth and ninth ribs and blood in the urine. The ill-treatment had been particularly serious and cruel and capable of causing “severe” pain and both physical and mental suffering within the meaning of Article 3 of the Convention. ( β ) The Government 69. The Government noted at the outset that the day before the events constituting the immediate subject of the present case, the applicant had refused to comply with the prison officers ’ lawful orders and had offered physical resistance to them. On 4 July 2009 he had again refused to comply with an order to surrender the mattress. It was not acceptable to allow a situation where a prisoner could argue with an officer about the lawfulness of an order or about whether the officer should or could give such an order. In the present case the order given to the applicant had been lawful, clear and easy to comply with. The subsequent events had been prompted by the applicant ’ s failure to obey a lawful order given by the prison officers. The Government also considered that the applicant ’ s personality, his prior behaviour and the real danger posed by him required to be taken into account. They pointed out that the applicant was a life prisoner convicted of the brutal murder of two people and attempting to kill a third victim. He had continued committing crimes, both against prison officers and others, during his time in prison. At the time of the events he had had 29 disciplinary punishments on record and according to the assessment in the individual action plans drawn up for the applicant in Tartu Prison and in Viru Prison he was a dangerous person. Thus, based on the applicant ’ s prior behaviour, he could be considered a high-risk prisoner whose unpredictable behaviour and instability could pose a serious danger to everybody in his vicinity. 70. The Government considered that the use of the means of restraint, special equipment and service weapons by the prison officers on 4 July 2009 had been lawful under sections 69, 70, 70-1 and 71 of the Imprisonment Act ( Vangistusseadus ). 71. The Government argued that the use of pepper spray by VG after the applicant had pushed AR had been lawful – as had also been found by the domestic courts – and the least injurious method available to the officers that would also allow them to get a dangerous prisoner under control and remove the danger posed. Nevertheless, as the prison officers had been unable to get the applicant under control, as he had still been actively resisting and disobeying the order to submit to the use of handcuffs, the use of a telescopic baton – a measure less damaging than a rubber baton – had been justified. Although it was not fully certain that the telescopic baton had been used prior to the applicant ’ s handcuffing, this had been deemed more likely by the domestic authorities. At the same time, there was no dispute that the applicant had refused to comply with the order to submit to the use of handcuffs and had struggled with the officers. In any event, the use of the telescopic baton could not be considered disproportionate and excessive in the circumstances of the case. Regard being had to the applicant ’ s physical resistance and his threats to the life and health of the prison officers, as well as his previous pattern of behaviour, the force used against the applicant had not gone beyond what had been strictly necessary. 72. In respect of the use of handcuffs, the Government also considered that it had been lawful and necessary in the circumstances. They pointed out that the handcuffs had only been used in respect of the applicant for a few minutes until he had been taken to the restraint bed. 73. As concerns the applicant being strapped to the restraint bed, the Government contended that it had been lawful and justified as a measure of last resort, as all the previous measures had not succeeded in calming down the applicant. The Government noted that the strapping of the applicant to the restraint bed had only lasted for three hours and forty minutes, staff had checked on an hourly basis whether it was possible to release the applicant, and his condition had been checked twice by a doctor. The Government emphasised that the means of restraint had not been punitive but rather had been a preventive measure applicable in situations where there was a danger to the person ’ s own life and health or that of others. In the present case, the applicant ’ s behaviour had been extremely aggressive and disturbing and his immediate return to a single-occupancy disciplinary cell would not have guaranteed his calming down or prevented him, for example, from punching the walls and causing serious additional injuries to himself and possibly others. Thus, the threat posed by the applicant to himself and to others had justified the measure being applied. The Government maintained that Article 3 had not been breached thereby. 74. The Government submitted, in conclusion, that the use of pepper spray, handcuffs, physical force and a telescopic baton against the applicant, as well as his being strapped to a restraint bed, on 4 July 2009 had not exceeded the level of severity or disproportionality necessary to amount to a violation of Article 3 of the Convention. (ii) The Court ’ s assessment 75. The Court notes at the outset that it is aware of the difficulties the States may encounter in maintaining order and discipline in penal institutions. This is particularly so in cases of unruly behaviour by dangerous prisoners, a situation in which it is important to find a balance between the rights of different detainees or between the rights of the detainees and the safety of the prison officers. 76. In the present case, the Court has had regard to the evidence provided by the Government in respect of the risk posed by the applicant (his convictions for murder, attempted manslaughter, attacks against prison officers and other prisoners, disciplinary punishments and his characterisation in the individual action plans, see paragraph 6 above). Thus, the Court accepts that the applicant ’ s character and prior behaviour gave the prison officers reason to be alert in relation to their safety and for taking immediate measures when the applicant displayed disobedience, threats and aggression towards them. The Court also notes that in two separate sets of domestic proceedings (criminal and administrative) the domestic authorities established after a thorough examination of the events that the applicant had behaved aggressively and that it had therefore been justified to take different measures to combat that aggression. 77. The Court observes that the prison officers relied on the use of several immobilisation techniques and special equipment in respect of the applicant. Thus, in addition to physical force and handcuffs they also used pepper spray and a telescopic baton. The Court considers that the applicant ’ s injuries, such as haematomas on his body and blood in his urine (see paragraphs 23, 24, 26 and 32 above) indicate that a degree of force was used against the applicant. As regards the use of the telescopic baton, the Court notes that the domestic authorities were unable to establish with certainty – despite a thorough examination of the evidence, including the video recordings of the security cameras, both in criminal and administrative court proceedings – whether the applicant was hit with the baton before or after he had been handcuffed. The Court notes that it is in no better position than the domestic authorities to establish the exact factual circumstances relating to the use of the telescopic baton. 78. As regards the legitimacy of the use of pepper spray against the applicant, the Court refers to the concerns expressed by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( “the CPT ” ) in respect of the use of such agents in law enforcement. According to the CPT pepper spray is a potentially dangerous substance and should not be used in confined spaces; if exceptionally it needs to be used in open spaces, there should be clearly defined safeguards in place. Pepper spray should never be deployed against a prisoner who has already been brought under control (see İzci v. Turkey, no. 42606/05, §§ 40-41, 23 July 2013, and Ali Güneş v. Turkey, no. 9829/07, §§ 39-40, 10 April 2012; see also paragraph 52 above ). The Court also notes that although pepper spray is not considered a chemical weapon and its use is authorised for the purpose of law enforcement, it can produce effects such as respiratory problems, nausea, vomiting, irritation of the respiratory tract, irritation of the tear ducts and eyes, spasms, chest pain, dermatitis and allergies. In strong doses it may cause necrosis of the tissue in the respiratory or digestive tract, pulmonary oedema or internal haemorrhaging (haemorrhaging of the adrenal gland) (see Ali Güneş, cited above, §§ 37-38, with further reference to Oya Ataman v. Turkey, no. 74552/01, §§ 17-18, ECHR 2006 ‑ XIII; see also İzci, cited above, § 35, and paragraph 51 above ). Having regard to these potentially serious effects of the use of pepper spray in a confined space on the one hand and the alternative equipment at the disposal of the prison guards, such as flak jackets, helmets and shields on the other, the Court finds that the circumstances did not justify the use of pepper spray. 79. Furthermore, the Court reiterates that it has had occasion to deal with a complaint concerning strapping of a prisoner to a restraint bed in the recent case of Julin v. Estonia (cited above). In that case, the Court assessed both the domestic law underlying the use of this measure and its practice and application in that particular case (see Julin, cited above, §§ 124-128). The Court notes that the events giving rise to the complaint about the use of the restraint bed in the case of Julin and those of the present case took place at approximately the same time and under the same domestic law. In Julin the Court found that the applicant ’ s strapping to the restraint bed for nearly nine hours had been in breach of Article 3 of the Convention. 80. The Government ’ s main argument in the present case was that the applicant had been strapped to the restraint bed for three hours and forty minutes, in other words for a considerably shorter period of time than the applicant in the case of Julin. Furthermore, the Government pointed out that, unlike in Julin, the report drawn up in the present case had confirmed that the applicant had been aggressive throughout the period of his being strapped to the bed (see paragraph 20 above). 81. However, the Court considers that these factors are not sufficient to distinguish the present case from Julin. While it is true that the period for which the applicant was strapped to the restraint bed was shorter in the present case, and the report on the use of the restraint bed describes the applicant as having been aggressive, and notes that his situation was assessed on an hourly basis and that he was also checked on by medical staff, the Court nevertheless does not consider that these factors rendered the use of the restraint bed a justified measure in the circumstances of the present case. The Court notes that the applicant ’ s behaviour was described as “aggressive” after a physical confrontation with prison officers. The Court reiterates, however, that means of restraint should never be used as a means of punishment, but rather in order to avoid self-harm or serious danger to other individuals or to prison security (see Julin, cited above, § 127). In the present case, the Court considers that it has not been convincingly shown that after the end of the confrontation with the prison officers the applicant – who had been locked in a single-occupancy disciplinary cell – posed a threat to himself or others that would have justified applying such a measure. Furthermore, the period for which he was strapped to the restraint bed was by no means negligible and the applicant ’ s prolonged immobilisation must have caused him distress and physical discomfort. 82. In view of the above and considering the cumulative effect of the measures used in respect of the applicant on 4 July 2009, the Court finds that the applicant was subjected to inhuman and degrading treatment in violation of Article 3 of the Convention. II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 83. The applicant further complained of the authorities ’ failure to carry out an effective investigation into his allegations of ill-treatment on 3 and 4 July 2009. He relied on Articles 3 and 13 of the Convention. 84. However, having regard to all the material in its possession, and in so far as these complaints fall within its competence, the Court finds that there is no appearance of a violation of the cited provisions. It follows that this part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 85. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 86. The applicant claimed 30,000 euros (EUR) in respect of non-pecuniary damage. 87. The Government considered that as the Convention had not been violated in respect of the applicant, there was no basis for awarding any compensation. Furthermore, they submitted that, should the Court find a violation of the applicant ’ s rights, a finding of a violation would constitute sufficient just satisfaction, taking into account the aggressive and dangerous behaviour of the applicant himself. Should the Court nevertheless decide to make an award in respect of non-pecuniary damage, the Government called on it to determine a reasonable sum. 88. The Court considers that the applicant has suffered non-pecuniary damage which cannot be compensated solely by a finding of a violation. In view of the circumstances of the present case, and ruling on an equitable basis, it therefore awards the applicant EUR 5 ,000 in respect of non-pecuniary damage, plus any tax which may be chargeable on that amount. B. Costs and expenses 89. The applicant also claimed EUR 1,776.20 for costs and expenses incurred before the Court. 90. The Government submitted that no award should be made in respect of legal expenses incurred in the domestic proceedings and that the administrative expenses had been calculated arbitrarily. In the event of a finding of a violation of the Convention, the Government left it for the Court to determine a reasonable sum to cover legal assistance in the proceedings before it. 91. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 1,776.20 covering costs and expenses under all heads. C. Default interest 92. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention. As regards in particular the legitimacy of the use of pepper spray against the applicant, the Court referred to the concerns expressed by the European Committee for the Prevention of Torture (CPT) concerning the use of such agents in law enforcement. According to the CPT, pepper spray was a potentially dangerous substance which was not to be used in confined spaces and never to be used against a prisoner who had already been brought under control. Pepper spray could have serious effects on health such as irritation of the respiratory tract and of the eyes, spasms, allergies and, if used in strong doses, pulmonary oedema or internal haemorrhaging. Having regard to these potentially serious effects of the use of pepper spray in a confined space and to the fact that the prison officers had had alternative means at their disposal to immobilise the applicant such as helmets or shields, the Court found that the circumstances had not justified the use of pepper spray. As further regards the applicant’s strapping to a restraint bed, the Court underlined in particular that measures of restraint were never to be used as a means of punishment of prisoners, but rather in order to avoid self-harm or serious danger to other individuals or to prison security. In the applicant’s case it had not been convincingly shown that after the end of the confrontation with the prison officers – and being locked in a single-occupancy disciplinary cell – he had posed a threat to himself or others that would have justified applying such a measure. The period of three and a half hours for which he had been strapped to the restraint bed had therefore by no means been negligible and his prolonged immobilisation had to have caused him distress and physical discomfort. |
521 | Criminalisation of homosexual relations in general | PROCEEDINGS BEFORE THE COMMISSION 34. In his application, lodged with the Commission on 22 May 1976, Mr. Dudgeon claimed that: - the existence, in the criminal law in force in Northern Ireland, of various offences capable of relating to male homosexual conduct and the police investigation in January 1976 constituted an unjustified interference with his right to respect for his private life, in breach of Article 8 (art. 8) of the Convention; - he had suffered discrimination, within the meaning of Article 14 (art. 14) of the Convention, on grounds of sex, sexuality and residence. The applicant also claimed compensation. 35. By decision of 3 March 1978, the Commission declared admissible the applicant ’ s complaints concerning the laws in force in Northern Ireland prohibiting homosexual acts between males (or attempts at such acts), but inadmissible as being manifestly ill-founded his complaints concerning the existence in Northern Ireland of certain common law offences. In its report adopted on 13 March 1980 (Article 31 of the Convention) (art. 31), the Commission expressed the opinion that: - the legal prohibition of private consensual homosexual acts involving male persons under 21 years of age was not in breach of the applicant ’ s rights either under Article 8 (art. 8) (eight votes to two) or under Article 14 read in conjunction with Article 8 (art. 14+8) (eight votes to one, with one abstention); - the legal prohibition of such acts between male persons over 21 years of age breached the applicant ’ s right to respect for his private life under Article 8 (art. 8) (nine votes to one); - it was not necessary to examine the question whether the last-mentioned prohibition also violated Article 14 read in conjunction with Article 8 (art. 14+8) (nine votes to one). The report contains one separate opinion. FINAL SUBMISSIONS MADE TO THE COURT 36. At the hearing on 23 April 1981, the Government maintained the submissions set out in their memorial, whereby they requested the Court: "(1) With regard to Article 8 (art. 8) To decide and declare that the present laws in Northern Ireland relating to homosexual acts do not give rise to a breach of Article 8 (art. 8) of the Convention, in that the laws are necessary in a democratic society for the protection of morals and for the protection of the rights of other for the purposes of paragraph 2 of Article 8 (art. 8-2). (2) With regard to Article 14, in conjunction with Article 8 (art. 14+8) ( i ) To decide and declare that the facts disclose no breach of Article 14, read in conjunction with Article 8 (art. 14+8) of the Convention; alternatively, if and in so far as a breach of Article 8 (art. 8) of the Convention is found (ii) To decide and declare that it is unnecessary to examine the question whether the laws in Northern Ireland relating to homosexual acts give rise to a separate breach of Article 14, read in conjunction with Article 8 (art. 14+8) of the Convention". AS TO THE LAW I. THE ALLEGED BREACH OF ARTICLE 8 (art. 8) A. Introduction 37. The applicant complained that under the law in force in Northern Ireland he is liable to criminal prosecution on account of his homosexual conduct and that he has experienced fear, suffering and psychological distress directly caused by the very existence of the laws in question - including fear of harassment and blackmail. He further complained that, following the search of his house in January 1976, he was questioned by the police about certain homosexual activities and that personal papers belonging to him were seized during the search and not returned until more than a year later. He alleged that, in breach of Article 8 (art. 8) of the Convention, he has thereby suffered, and continues to suffer, an unjustified interference with his right to respect for his private life. 38. Article 8 (art. 8) provides as follows: "1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others." 39. Although it is not homosexuality itself which is prohibited but the particular acts of gross indecency between males and buggery (see paragraph 14 above), there can be no doubt but that male homosexual practices whose prohibition is the subject of the applicant ’ s complaints come within the scope of the offences punishable under the impugned legislation; it is on that basis that the case has been argued by the Government, the applicant and the Commission. Furthermore, the offences are committed whether the act takes place in public or in private, whatever the age or relationship of the participants involved, and whether or not the participants are consenting. It is evident from Mr. Dudgeon ’ s submissions, however, that his complaint was in essence directed against the fact that homosexual acts which he might commit in private with other males capable of valid consent are criminal offences under the law of Northern Ireland. B. The existence of an interference with an Article 8 (art. 8) right 40. The Commission saw no reason to doubt the general truth of the applicant ’ s allegations concerning the fear and distress that he has suffered in consequence of the existence of the laws in question. The Commission unanimously concluded that "the legislation complained of interferes with the applicant ’ s right to respect for his private life guaranteed by Article 8 par. 1 (art. 8-1), in so far as it prohibits homosexual acts committed in private between consenting males" (see paragraphs 94 and 97 of the Commission ’ s report). The Government, without conceding the point, did not dispute that Mr. Dudgeon is directly affected by the laws and entitled to claim to be a "victim" thereof under Article 25 (art. 25) of the Convention. Nor did the Government contest the Commission ’ s above-quoted conclusion. 41. The Court sees no reason to differ from the views of the Commission: the maintenance in force of the impugned legislation constitutes a continuing interference with the applicant ’ s right to respect for his private life (which includes his sexual life) within the meaning of Article 8 par. 1 (art. 8-1). In the personal circumstances of the applicant, the very existence of this legislation continuously and directly affects his private life (see, mutatis mutandis, the Marckx judgment of 13 June 1979, Series A no. 31, p. 13, par. 27): either he respects the law and refrains from engaging – even in private with consenting male partners - in prohibited sexual acts to which he is disposed by reason of his homosexual tendencies, or he commits such acts and thereby becomes liable to criminal prosecution. It cannot be said that the law in question is a dead letter in this sphere. It was, and still is, applied so as to prosecute persons with regard to private consensual homosexual acts involving males under 21 years of age (see paragraph 30 above). Although no proceedings seem to have been brought in recent years with regard to such acts involving only males over 21 years of age, apart from mental patients, there is no stated policy on the part of the authorities not to enforce the law in this respect (ibid). Furthermore, apart from prosecution by the Director of Public Prosecution, there always remains the possibility of a private prosecution (see paragraph 29 above). Moreover, the police investigation in January 1976 was, in relation to the legislation in question, a specific measure of implementation - albeit short of actual prosecution - which directly affected the applicant in the enjoyment of his right to respect for his private life (see paragraph 33 above). As such, it showed that the threat hanging over him was real. C. The existence of a justification for the interference found by the Court 42. In the Government ’ s submission, the law in Northern Ireland relating to homosexual acts does not give rise to a breach of Article 8 (art. 8), in that it is justified by the terms of paragraph 2 of the Article (art. 8-2). This contention was disputed by both the applicant and the Commission. 43. An interference with the exercise of an Article 8 (art. 8) right will not be compatible with paragraph 2 (art. 8-2) unless it is "in accordance with the law", has an aim or aims that is or are legitimate under that paragraph and is "necessary in a democratic society" for the aforesaid aim or aims (see, mutatis, mutandis, the Young, James and Webster judgment of 13 August 1981, Series A no. 44, p. 24, par. 59). 44. It has not been contested that the first of these three conditions was met. As the Commission pointed out in paragraph 99 of its report, the interference is plainly "in accordance with the law" since it results from the existence of certain provisions in the 1861 and 1885 Acts and the common law (see paragraph 14 above). 45. It next falls to be determined whether the interference is aimed at "the protection of morals" or "the protection of the rights and freedoms of others", the two purposes relied on by the Government. 46. The 1861 and 1885 Acts were passed in order to enforce the then prevailing conception of sexual morality. Originally they applied to England and Wales, to all Ireland, then unpartitioned, and also, in the case of the 1885 Act, to Scotland (see paragraph 16 above). In recent years the scope of the legislation has been restricted in England and Wales (with the 1967 Act) and subsequently in Scotland (with the 1980 Act): with certain exceptions it is no longer a criminal offence for two consenting males over 21 years of age to commit homosexual acts in private (see paragraphs 17 and 18 above). In Northern Ireland, in contrast, the law has remained unchanged. The decision announced in July 1979 to take no further action in relation to the proposal to amend the existing law was, the Court accepts, prompted by what the United Kingdom Government judged to be the strength of feeling in Northern Ireland against the proposed change, and in particular the strength of the view that it would be seriously damaging to the moral fabric of Northern Irish society (see paragraphs 25 and 26 above). This being so, the general aim pursued by the legislation remains the protection of morals in the sense of moral standards obtaining in Northern Ireland. 47. Both the Commission and the Government took the view that, in so far as the legislation seeks to safeguard young persons from undesirable and harmful pressures and attentions, it is also aimed at "the protection of the rights and freedoms of others". The Court recognises that one of the purposes of the legislation is to afford safeguards for vulnerable members of society, such as the young, against the consequences of homosexual practices. However, it is somewhat artificial in this context to draw a rigid distinction between "protection of the rights and freedoms of others" and "protection of morals". The latter may imply safeguarding the moral ethos or moral standards of a society as a whole (see paragraph 108 of the Commission ’ s report), but may also, as the Government pointed out, cover protection of the moral interests and welfare of a particular section of society, for example schoolchildren (see the Handyside judgment of 7 December 1976, Series A no. 24, p. 25, par. 52 in fine - in relation to Article 10 par. 2 (art. 10-2) of the Convention). Thus, "protection of the rights and freedoms of others", when meaning the safeguarding of the moral interests and welfare of certain individuals or classes of individuals who are in need of special protection for reasons such as lack of maturity, mental disability or state of dependence, amounts to one aspect of "protection of morals" (see, mutatis mutandis, the Sunday Times judgment of 26 April 1979, Series A no. 30, p. 34, par. 56). The Court will therefore take account of the two aims on this basis. 48. As the Commission rightly observed in its report (at paragraph 101), the cardinal issue arising under Article 8 (art. 8) in this case is to what extent, if at all, the maintenance in force of the legislation is "necessary in a democratic society" for these aims. 49. There can be no denial that some degree of regulation of male homosexual conduct, as indeed of other forms of sexual conduct, by means of the criminal law can be justified as "necessary in a democratic society". The overall function served by the criminal law in this field is, in the words of the Wolfenden report (see paragraph 17 above), "to preserve public order and decency [and] to protect the citizen from what is offensive or injurious". Furthermore, this necessity for some degree of control may even extend to consensual acts committed in private, notably where there is call - to quote the Wolfenden report once more - "to provide sufficient safeguards against exploitation and corruption of others, particularly those who are specially vulnerable because they are young, weak in body or mind, inexperienced, or in a state of special physical, official or economic dependence". In practice there is legislation on the matter in all the member States of the Council of Europe, but what distinguishes the law in Northern Ireland from that existing in the great majority of the member States is that it prohibits generally gross indecency between males and buggery whatever the circumstances. It being accepted that some form of legislation is "necessary" to protect particular sections of society as well as the moral ethos of society as a whole, the question in the present case is whether the contested provisions of the law of Northern Ireland and their enforcement remain within the bounds of what, in a democratic society, may be regarded as necessary in order to accomplish those aims. 50. A number of principles relevant to the assessment of the "necessity", "in a democratic society", of a measure taken in furtherance of an aim that is legitimate under the Convention have been stated by the Court in previous judgments. 51. Firstly, "necessary" in this context does not have the flexibility of such expressions as "useful", "reasonable", or "desirable", but implies the existence of a "pressing social need" for the interference in question (see the above-mentioned Handyside judgment, p. 22, par. 48). 52. In the second place, it is for the national authorities to make the initial assessment of the pressing social need in each case; accordingly, a margin of appreciation is left to them (ibid). However, their decision remains subject to review by the Court (ibid., p. 23, par. 49). As was illustrated by the Sunday Times judgment, the scope of the margin of appreciation is not identical in respect of each of the aims justifying restrictions on a right (p. 36, par. 59). The Government inferred from the Handyside judgment that the margin of appreciation will be more extensive where the protection of morals is in issue. It is an indisputable fact, as the Court stated in the Handyside judgment, that "the view taken ... of the requirements of morals varies from time to time and from place to place, especially in our era," and that "by reason of their direct and continuous contact with the vital forces of their countries, State authorities are in principle in a better position than the international judge to give an opinion on the exact content of those requirements" (p. 22, par. 48). However, not only the nature of the aim of the restriction but also the nature of the activities involved will affect the scope of the margin of appreciation. The present case concerns a most intimate aspect of private life. Accordingly, there must exist particularly serious reasons before interferences on the part of the public authorities can be legitimate for the purposes of paragraph 2 of Article 8 (art. 8-2). 53. Finally, in Article 8 (art. 8) as in several other Articles of the Convention, the notion of "necessity" is linked to that of a "democratic society". According to the Court ’ s case-law, a restriction on a Convention right cannot be regarded as "necessary in a democratic society" - two hallmarks of which are tolerance and broadmindedness - unless, amongst other things, it is proportionate to the legitimate aim pursued (see the above-mentioned Handyside judgment, p. 23, par. 49, and the above-mentioned Young, James and Webster judgment, p. 25, par. 63). 54. The Court ’ s task is to determine on the basis of the aforesaid principles whether the reasons purporting to justify the "interference" in question are relevant and sufficient under Article 8 par. 2 (art. 8-2) (see the above-mentioned Handyside judgment, pp. 23-24, par. 50). The Court is not concerned with making any value-judgment as to the morality of homosexual relations between adult males. 55. It is convenient to begin by examining the reasons set out by the Government in their arguments contesting the Commission ’ s conclusion that the penal prohibition of private consensual homosexual acts involving male persons over 21 years of age is not justified under Article 8 par. 2 (art. 8-2) (see paragraph 35 above). 56. In the first place, the Government drew attention to what they described as profound differences of attitude and public opinion between Northern Ireland and Great Britain in relation to questions of morality. Northern Irish society was said to be more conservative and to place greater emphasis on religious factors, as was illustrated by more restrictive laws even in the field of heterosexual conduct (see paragraph 15 above). Although the applicant qualified this account of the facts as grossly exaggerated, the Court acknowledges that such differences do exist to a certain extent and are a relevant factor. As the Government and the Commission both emphasised, in assessing the requirements of the protection of morals in Northern Ireland, the contested measures must be seen in the context of Northern Irish society. The fact that similar measures are not considered necessary in other parts of the United Kingdom or in other member States of the Council of Europe does not mean that they cannot be necessary in Northern Ireland (see, mutatis mutandis, the above-mentioned Sunday Times judgment, pp. 37-38, par. 61; cf. also the above-mentioned Handyside judgment, pp. 26-28, par. 54 and 57). Where there are disparate cultural communities residing within the same State, it may well be that different requirement, both moral and social, will face the governing authorities. 57. As the Government correctly submitted, it follows that the moral climate in Northern Ireland in sexual matters, in particular as evidenced by the opposition to the proposed legislative change, is one of the matters which the national authorities may legitimately take into account in exercising their discretion. There is, the Court accepts, a strong body of opposition stemming from a genuine and sincere conviction shared by a large number of responsible members of the Northern Irish community that a change in the law would be seriously damaging to the moral fabric of society (see paragraph 25 above). This opposition reflects - as do in another way the recommendations made in 1977 by the Advisory Commission (see paragraph 23 above - a view both of the requirements of morals in Northern Ireland and of the measures thought within the community to be necessary to preserve prevailing moral standards. Whether this point of view be right or wrong, and although it may be out of line with current attitudes in other communities, its existence among an important sector of Northern Irish society is certainly relevant for the purposes of Article 8 par. 2 (art. 8-2). 58. The Government argued that this conclusion is further strengthened by the special constitutional circumstances of Northern Ireland (described above at paragraphs 19 and 20). In the period between 1921 (when the Northern Ireland Parliament first met) and 1972 (when it last sat), legislation in the social field was regarded as a devolved matter within the exclusive domain of that Parliament. As a result of the introduction of "direct rule" from Westminster, the United Kingdom Government, it was said, had a special responsibility to take full account of the wishes of the people of Northern Ireland before legislating on such matters. In the present circumstances of direct rule, the need for caution and for sensitivity to public opinion in Northern Ireland is evident. However, the Court does not consider it conclusive in assessing the "necessity", for the purposes of the Convention, of maintaining the impugned legislation that the decision was taken, not by the former Northern Ireland Government and Parliament, but by the United Kingdom authorities during what they hope to be an interim period of direct rule. 59. Without any doubt, faced with these various considerations, the United Kingdom Government acted carefully and in good faith; what is more, they made every effort to arrive at a balanced judgment between the differing viewpoints before reaching the conclusion that such a substantial body of opinion in Northern Ireland was opposed to a change in the law that no further action should be taken (see, for example, paragraphs 24 and 26 above). Nevertheless, this cannot of itself be decisive as to the necessity for the interference with the applicant ’ s private life resulting from the measures being challenged (see the above-mentioned Sunday Times judgment, p. 36, par. 59). Notwithstanding the margin of appreciation left to the national authorities, it is for the Court to make the final evaluation as to whether the reasons it has found to be relevant were sufficient in the circumstances, in particular whether the interference complained of was proportionate to the social need claimed for it (see paragraph 53 above). 60. The Government right affected by the impugned legislation protects an essentially private manifestation of the human personality (see paragraph 52, third sub-paragraph, above). As compared with the era when that legislation was enacted, there is now a better understanding, and in consequence an increased tolerance, of homosexual behaviour to the extent that in the great majority of the member States of the Council of Europe it is no longer considered to be necessary or appropriate to treat homosexual practices of the kind now in question as in themselves a matter to which the sanctions of the criminal law should be applied; the Court cannot overlook the marked changes which have occurred in this regard in the domestic law of the member States (see, mutatis mutandis, the above-mentioned Marckx judgment, p. 19, par. 41, and the Tyrer judgment of 25 April 1978, Series A no. 26, pp. 15-16, par. 31). In Northern Ireland itself, the authorities have refrained in recent years from enforcing the law in respect of private homosexual acts between consenting males over the age of 21 years capable of valid consent (see paragraph 30 above). No evidence has been adduced to show that this has been injurious to moral standards in Northern Ireland or that there has been any public demand for stricter enforcement of the law. It cannot be maintained in these circumstances that there is a "pressing social need" to make such acts criminal offences, there being no sufficient justification provided by the risk of harm to vulnerable sections of society requiring protection or by the effects on the public. On the issue of proportionality, the Court considers that such justifications as there are for retaining the law in force unamended are outweighed by the detrimental effects which the very existence of the legislative provisions in question can have on the life of a person of homosexual orientation like the applicant. Although members of the public who regard homosexuality as immoral may be shocked, offended or disturbed by the commission by others of private homosexual acts, this cannot on its own warrant the application of penal sanctions when it is consenting adults alone who are involved. 61. Accordingly, the reasons given by the Government, although relevant, are not sufficient to justify the maintenance in force of the impugned legislation in so far as it has the general effect of criminalising private homosexual relations between adult males capable of valid consent. In particular, the moral attitudes towards male homosexuality in Northern Ireland and the concern that any relaxation in the law would tend to erode existing moral standards cannot, without more, warrant interfering with the applicant ’ s private life to such an extent. "Decriminalisation" does not imply approval, and a fear that some sectors of the population might draw misguided conclusions in this respect from reform of the legislation does not afford a good ground for maintaining it in force with all its unjustifiable features. To sum up, the restriction imposed on Mr. Dudgeon under Northern Ireland law, by reason of its breadth and absolute character, is, quite apart from the severity of the possible penalties provided for, disproportionate to the aims sought to be achieved. 62. In the opinion of the Commission, the interference complained of by the applicant can, in so far as he is prevented from having sexual relations with young males under 21 years of age, be justified as necessary for the protection of the rights of others (see especially paragraphs 105 and 116 of the report). This conclusion was accepted and adopted by the Government, but disputed by the applicant who submitted that the age of consent for male homosexual relations should be the same as that for heterosexual and female homosexual relations that is, 17 years under current Northern Ireland law (see paragraph 15 above). The Court has already acknowledged the legitimate necessity in a democratic society for some degree of control over homosexual conduct notably in order to provide safeguards against the exploitation and corruption of those who are specially vulnerable by reason, for example, of their youth (see paragraph 49 above). However, it falls in the first instance to the national authorities to decide on the appropriate safeguards of this kind required for the defence of morals in their society and, in particular, to fix the age under which young people should have the protection of the criminal law (see paragraph 52 above). D. Conclusion 63. Mr. Dudgeon has suffered and continues to suffer an unjustified interference with his right to respect for his private life. There is accordingly a breach of Article 8 (art. 8). II. THE ALLEGED BREACH OF ARTICLE 14 TAKEN IN CONJUNCTION WITH ARTICLE 8 (art. 14+8) 64. Article 14 (art. 14) reads as follows: "The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association, with a national minority, property, birth or other status." 65. The applicant claimed to be a victim of discrimination in breach of Article 14 taken in conjunction with Article 8 (art. 14+8), in that he is subject under the criminal law complained of to greater interference with his private life than are male homosexuals in other parts of the United Kingdom and heterosexuals and female homosexuals in Northern Ireland itself. In particular, in his submission Article 14 (art. 14) requires that the age of consent should be the same for all forms of sexual relations. 66. When dealing with the issues under Article 14 (art. 14), the Commission and likewise the Government distinguished between male homosexual acts involving those under and those over 21 years of age. The Court has already held in relation to Article 8 (art. 8) that it falls in the first instance to the national authorities to fix the age under which young people should have the protection of the criminal law (see paragraph 62 above). The current law in Northern Ireland is silent in this respect as regards the male homosexual acts which it prohibits. It is only once this age has been fixed that an issue under Article 14 (art. 14) might arise; it is not for the Court to pronounce upon an issue which does not arise at the present moment. 67. Where a substantive Article of the Convention has been invoked both on its own and together with Article 14 (art. 14) and a separate breach has been found of the substantive Article, it is not generally necessary for the Court also to examine the case under Article 14 (art. 14), though the position is otherwise if a clear inequality of treatment in the enjoyment of the right in question is a fundamental aspect of the case (see the Airey judgment of 9 October 1979, Series A no. 32 p. 16, par. 30). 68. This latter condition is not fulfilled as regards the alleged discrimination resulting from the existence of different laws concerning male homosexual acts in various parts of the United Kingdom (see paragraphs 14, 17 and 18 above). Moreover, Mr. Dudgeon himself conceded that, if the Court were to find a breach of Article 8 (art. 8), then this particular question would cease to have the same importance. 69. According to the applicant, the essential aspect of his complaint under Article 14 (art. 14) is that in Northern Ireland male homosexual acts, in contrast to heterosexual and female homosexual acts, are the object of criminal sanctions even when committed in private between consenting adults. The central issue in the present case does indeed reside in the existence in Northern Ireland of legislation which makes certain homosexual acts punishable under the criminal law in all circumstances. Nevertheless, this aspect of the applicant ’ s complaint under Article 14 (art. 14) amounts in effect to the same complaint, albeit seen from a different angle, that the Court has already considered in relation to Article 8 (art. 8); there is no call to rule on the merits of a particular issue which is part of and absorbed by a wider issue (see, mutatis mutandis, the Deweer judgment of 27 February 1980, Series A no. 35, pp. 30-31, par. 56 in fine). Once it has been held that the restriction on the applicant ’ s right to respect for his private sexual life give rise to a breach of Article 8 (art. 8) by reason of its breadth and absolute character (see paragraph 61 in fine above), there is no useful legal purpose to be served in determining whether he has in addition suffered discrimination as compared with other persons who are subject to lesser limitations on the same right. This being so, it cannot be said that a clear inequality of treatment remains a fundamental aspect of the case. 70. The Court accordingly does not deem it necessary to examine the case under Article 14 (art. 14) as well. III. THE APPLICATION OF ARTICLE 50 (art. 50) 71. Counsel for the applicant stated that, should the Court find the Convention to have been violated, his client would seek just satisfaction under Article 50 (art. 50) in respect of three matters: firstly, the distress, suffering and anxiety resulting from the police investigation in January 1976; secondly, the general fear and distress suffered by Mr. Dudgeon since he was 17 years of age; and finally, legal and other expenses. Counsel put forward figures of 5,000 pounds under the first head, 10,000 pounds under the second and 5,000 pounds under the third. The Government, for their part, asked the Court to reserve the question. 72. Consequently, although it was raised under Rule 47 bis of the Rules of Court, this question is not ready for decision and must be reserved; in the circumstances of the case, the Court considers that the matter should be referred back to the Chamber in accordance with Rule 50 par. 4 of the Rules of Court. | The European Court of Human Rights held that there had been a violation of Article 8 (right to respect for private life) of the European Convention on Human Rights. It found that the restriction imposed on the applicant, by reason of its breadth and absolute character, had been, quite apart from the severity of the possible penalties, disproportionate to the aims sought to be achieved, namely the protection "of the rights and freedoms of others" and “of morals”. |
629 | Doctors and health workers | II. RELEVANT DOMESTIC LAW A. The Chamber of Medical Doctors and the Medical Practitioners Act 19. According to Article 120 a of the Federal Constitution Act ( Bundesverfassungsgesetz ), people may be united by law to self ‑ administrating bodies to autonomously take care of public interests being in their exclusive or preponderant common interest and qualified to be handled jointly by them. The self-administrating bodies are authorized to take care of their tasks in own responsibility without orders and to render statutes within the frame of the laws. The Federation or the Region has a right of supervision over them on the basis of the legal regulations with regard to the legality of the handling of the administration. Such right of supervision may also extend to the expedience of the handling of the administration, if such is required because of the tasks of the self ‑ administrating body. Upon the self-administrating bodies tasks of administration of the state may be conferred. The laws have to expressly indicate that such matters belong to the assigned executive responsibility and to provide a binding effect of the instructions by the supreme administrative authorities (see Article 120b of the Federal Constitution Act). 20. Using the authority granted by these provisions of the Federal Constitution Act, the Medical Practitioners Act ( Ärztegesetz ), establishes the Chamber of Medical Doctors (“the Chamber”) to represent the interests of medical practitioners in Austria ( Standesvertretung ). There is a regional chamber in each of the nine Austrian regions and a Federal Chamber, of which the regional chambers are members. The chambers are public - law bodies with compulsory membership. The members are all practising doctors who are registered on the list of active medical practitioners in the geographical area of the regional chambers. 21. The chambers are established to represent and promote the professional, social and economic interests of doctors; uphold the reputation of the medical profession; and ensure that professional duties are observed by practitioners. 22. Furthermore, inter alia, they manage the examinations which medical graduates have to pass in order to become practising doctors (sections 7 et seq. of the Medical Practitioners Act ); confer institution status on medical education establishments (sections 9 et seq.); and deal with the recognition of foreign qualifications and access to work for both self ‑ employed and employed doctors (sections 27 et seq.). These duties and responsibilities are divided between the regional chambers and the Federal Chamber, and are regulated by sections 65 et seq. (in relation to the regional chambers ) and sections 117 et seq. of the Medical Practitioners Act (in relation to the Federal Chamber ). 23. Section 66 (sections 66 to 66c after 1 January 2010 ) of the Medical Practitioners Act provides that, within their own sphere ( eigener Wirkungsbereich ), the regional chambers are called upon to, inter alia, form and terminate contracts which define the relationship between medical practitioners and social security institutions; secure collective agreements on the part of employers in relation to non-medical employees; control fees; give legal advice; make reports, expert opinions and recommendations to state authorities concerning the health system, establish regional collegiate arbitration boards and conduct collegiate arbitration proceedings; establish patient arbitration boards; establish and manage pension and disability funds for their members; establish and manage commercial institutions; report on public health issues; collaborate in the collection of official medical statistical data; collaborate in the establishment of medical universities and other training institutes; examine draft laws; provide quality control for medical training; provide advanced training and training facilities; and provide quality control for services rendered by the medical profession in general. 24. The Federal Medical Chamber ( Österreichische Ärztekammer ), inter alia, manages the register of practising doctors; deals with the accreditation process for equivalent medical qualifications; issues diplomas for general practitioners, medical specialists or specialists in other fields; collaborates in the academic and advanced education and training of medical practitioners; and conducts disciplinary proceedings. Section 27 of the Medical Practitioners Act provides that the regional chambers cooperate with the Federal Chamber in managing the register of doctors. Appearing on this register is a precondition to working legally as a medical doctor in Austria. 25. The regional chambers adopt their own organisational statutes; statutes relating to pension and disability funds; rules on contributions to the chambers themselves and to pension and disability funds; recommendations regarding fee structures for private medical services; and rules on the reimbursement of costs and other fees. 26. The members are obliged to pay regular contributions ( Umlage ) to their chambers and to the relevant pension and disability funds (section 69 of the Medical Practitioners Act). These contributions are defined by decree of the regional chambers on the basis of section 91. Payment of arrears of such contributions can be enforced by the chambers on the basis of the federal law for enforcement of administrative orders ( Verwaltungsvollstreckungsgesetz ). 27. Until 2010, remedies against decisions of the chambers could, depending on the issue, be raised before the Regional Governor ( Landeshauptmann – sections 14, 15, 28, 59 and 197), the Independent Administrative Panel ( Unabhängiger Verwaltungssenat – sections 35a and 39) or, in respect of decisions relating to pension and disability funds and disciplinary proceedings, with the Federal Chamber. Between 1 January 2010 and 31 December 2013 the rule providing for appeals to the Regional Governor was abolished. In proceedings concerning the recognition of foreign qualifications (sections 32, 33 and 35), there was the possibility of an appeal to the Independent Administrative Panel. With regard to decisions relating to pension and disability funds and disciplinary proceedings, the rule permitting appeals to the Federal Chamber remained in force. As of 1 January 2014 an appeal to the Regional Administrative Courts can be filed against all decisions of the chambers. 28. The regional chambers are supervised by the regional governments, the Federal Chamber by the Federal Minister of Health. To fulfil this supervisory function, the chambers have to provide information needed by regional governments or the Federal Minister of Health. All decrees have to be presented for supervision automatically. The supervisory body has to examine the lawfulness of the decrees and decisions issued by the chambers, and can suspend unlawful acts (sections 195 et seq.). If an organ of the chamber oversteps its competences or neglects its duties, the regional government may dismiss this organ from office, if this organ acted with culpable negligence or wilful intent and the chamber does not take appropriate measures. If the chamber becomes inquorate, the regional government may depute a commissioner of the Government ( Regierungskommissär ) to administrate the acts of the chamber until the establishment of a new board of the chamber through elections (see section 195b). 29. In accordance with Article 127b of the Federal Constitution, the Audit Office ( Rechnungshof ) examines the finances of the chambers and verifies that all their transactions are lawful, appropriate and in line with relevant budgets. It reports to the chambers themselves and to the supervisory bodies. 30. Apart from the public responsibilities described above, medical chambers can act as private entities. They may form all manner of civil contracts and acquire possessions. In this field, they can be held liable for violations of laws, in the same way as any private entity. B. Article 1330 of the Civil Code and section 7 of the Unfair Competition Act 31. Article 1330 of the Civil Code ( Allgemeines Bürgerliches Gesetzbuch ) provides as follows: “1. Anybody who, as a result of defamation, suffers real damage or loss of profit may claim compensation.. 2. The same shall apply if anyone disseminates allegations which jeopardise a person ’ s reputation, income or livelihood, the untruth of which was known or should have been known to him or her. In this case there is also a right to request a retraction and publication thereof ...” Sections 1 (1) and 7 ( 1 ) of the Unfair Competition Act ( Bundesgesetz gegen den unlauteren Wettbewerb ) provide : Section 1 “ § 1. Any party who, for competitive purposes : 1. uses an unfair commercial practice or any other unfair action which might possibly affect the competitive capability of a business in a significant way; or 2. uses an unfair commercial practice which is contrary to the requirements of professional diligence and likely to materially distort the economic behaviour of the average consumer whom it reaches or to whom it is addressed. can be sued for negligence and damages in the event of default. ” Section 7 “ 1. Any party who, for competitive purposes, alleges or disseminates facts about a person ’ s business, a business owner or manager ’ s character, or a person ’ s, goods or services which may be detrimental to that business or to the credit standing of its owner, shall be liable [to pay] damages to the injured [party] unless such facts are demonstrably true. The injured [party] may file a claim for the party at fault to cease and desist from alleging or disseminating the facts. The injured [party] may furthermore demand a retraction and publication of the retraction. ...” THE LAW I. THE GOVERNMENT ’ S PRELIMINARY OBJECTIONS A. The first applicant organisation ’ s victim status 32. The Government contested the first applicant organisation ’ s locus standi under Article 34 of the Convention. 33. Referring to the Court ’ s case-law, they asserted that the first applicant organisation was a governmental organisation under Article 34, as, legally, it was a public body entrusted with fulfilling governmental duties. Those tasks were fulfilled by exercising typically governmental powers, such as the issuing of decrees. In proceedings relating to decisions, the first applicant organisation was bound by the General Administrative Procedure Act ( Allgemeines Verwaltungsverfahrensgesetz ), and the enforcement of its decisions was based on the Federal Law for the Enforcement of Administrative Orders ( Verwaltungsvollstreckungsgesetz ). The decrees issued by the first applicant organisation were supervised by the Vienna Regional Government, which had powers to suspend them. Therefore, the first applicant organisation was not fully independent, as required by the Court ’ s case - law. Moreover, the relevant statement had been issued in the process of discharging the first applicant organisation ’ s legal public responsibilities. 34. The first applicant organisation contested that assertion. It was true that, legally, it was a public entity entrusted with the exercise of public functions. It was therefore correct that it was, in general, required to safeguard fundamental rights but did not enjoy such rights. However, aside from this legal aspect, it also had a non-governmental aspect, which rendered it capable of being a party under Article 34 of the Convention. The Court should therefore not examine the general abilities of the organisation to use the powers conferred on it by law, but the act in question itself. The issuing of the statement was not an act of a governmental organisation, but rather one of a private- law nature. 35. The Court refers to its well-established case law to the effect that a legal entity “claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto” may submit an application to the Court, provided that it is a “non ‑ governmental organisation ” within the meaning of Article 34 of the Convention. The Court reiterates that the idea behind this principle is to prevent a Contracting Party from acting as both an applicant and a respondent party before the Court. The term “governmental organisations”, as opposed to “non ‑ governmental organisations ” within the meaning of Article 34, includes legal entities which participate in the exercise of governmental powers or run a public service under government control. The term “governmental organisations” applies not only to the central organs of the State, but also to decentralised authorities that exercise “public functions”, regardless of their autonomy vis-à-vis the central organs; likewise it applies to regional and local authorities, including municipalities. In order to determine whether any given legal person falls within one of the two above categories, account must be taken of its legal status and, where appropriate, the rights that status gives it, the nature of the activity it carries out, the context in which it is carried out, and the degree of its independence from the political authorities ( see Radio France and Others v. France (dec.), no. 53984/00, § 26, ECHR 2003-X, and Islamic Republic of Iran Shipping Lines v. Turkey (no. 40998/98, §§ 78-81, ECHR 2007 ‑ V). 36. The Court has therefore considered a company to be a “non ‑ governmental organisation” where it was governed essentially by company law, did not enjoy any governmental or other powers beyond those conferred by ordinary private law in the exercise of its activities, and was subject to the jurisdiction of the ordinary rather than the administrative courts. In the past, the Court has also taken into account the fact that an applicant company carried out commercial activities, and had neither a public service role nor a monopoly in a competitive sector ( see Vỳchodoslovenská Vodárenská Spoločnosť, A.S. v. Slovakia (dec.), no. 40265/07, § 31, 2 July 2013; State Holding Company Luganksvugillya v.Ukraine (dec.), no. 23938/05, 27 January 2009); and Transpetrol, a.s. v. Slovakia (dec.), no. 28502/08, 15 November 2011) ). 37. With regard to Austria, the Court has stated that communes and the Chamber of Commerce had to be seen as governmental organisations within the meaning of Article 34 (see, respectively, 16 Austrian Communes and some of their Councillors v. Austria, no. 5767/72, Commission decision of 31 May 1974, and Weiss v. Austria, no. 14596/89, Commission decision of 10 July 1991 ). However, the Austrian Broadcasting Corporation ( Österreichischer Rundfunk – ORF) was not seen as an governmental organisation within the meaning of Article 34, as it did not exercise governmental powers, and its independence and institutional autonomy had been preserved ( see Österreichischer Rundfunk v. Austria, no. 35841/02, § 53, 7 December 2006). 38. It is undisputed that the first applicant organisation exists by virtue of the legislature that thus provides its continued existence. Its legal status is therefore that of a public - law body and not an entity founded in accordance with private law. 39. The Court observes further that the structure of the first applicant organisation is provided for by law and that membership is compulsory. The relationship between the members and the governing body is defined by means of public law issued by the governing body, and is not subject to the jurisdiction of the civil courts. Even the enforcement of payment of contributions arrears is a matter governed by the Federal Law for the Enforcement of Administrative Orders. 40. Further, the Court observes that the mission of the first applicant organisation is prescribed by the Medical Practitioners Act as well. 41. As regards the nature of its activities, on one hand it is undisputed that the first applicant organisation may, in certain matters, act as a private entity, and can be held liable before the ordinary courts. On the other hand, there is agreement between the parties that the first applicant organisation exercises governmental powers and has a public service role in organising and managing the education of doctors and their access to employed and self-employed work. In exercising all these functions, it is under the supervision of other State authorities. All the chamber ’ s organs can be dismissed from office by the regional Government under the section 195b of the Medical Practitioners Act. 42. Moreover, the activities of the first applicant organisation are financed by compulsory and enforceable contributions of all medical practitioners in Austria (see para. 38). 43. The Court is not persuaded by the first appplicant organisation´s argument that in publishing the impugned article he did not exercise of any governmental powers within the meaning of Article 34. The impugned statement was clearly made in exercising the chambers public function. 44. Accordingly, the Court concludes that the first applicant organisation is not a “person, non-governmental organisation or group of individuals” within the meaning of Article 34 of the Convention. 45. In accordance with Article 35 § 3, it follows that the application is incompatible ratione personae with the provisions of the Convention. The Court must therefore reject the application of the first applicant organisation as inadmissible. B. The second applicant ’ s victim status 46. The Government further argued that the second applicant had acted as the president of the first applicant organisation, and therefore as the head of a governmental organisation. He had used the first applicant organisation ’ s website to publish his statement, and had done this to fulfil his duties towards doctors. His act should be regarded as governed by public law, and his application should therefore be declared inadmissible ratione personae. 47. The second applicant contested that argument and emphasised that the national courts had found that he had not acted within the sphere of the duties conferred by public law. Otherwise, the courts could not have prohibited him from repeating the statements in question. 48. The Court reiterates that the term “victim”, used in Article 34 of the Convention, denotes the person directly affected by the act or omission which is in issue ( see Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no. 38433/09, § 92, ECHR 2012). 49. In the present case, the courts prohibited the second applicant, a natural person, from repeating the statement that the F. company was ruthless towards third parties, in particular medical professionals, and from referring to the F. company as a “locust”, “ locust company” or “locust fund”. It was undisputed in the course of the domestic proceedings that the second applicant hereby acted as a representative of the first applicant. However by addressing the court order explicitly also to the second applicant as a natural person it affected the second applicant individually. Therefore, the Court considers that the second applicant has standing to introduce the present application. The Government ’ s objection is thus dismissed. 50. Moreover, the second applicant ’ s complaint is not manifestly ill ‑ founded within the meaning of Article 34 of the Convention. The Court further notes that it is not inadmissible on any other grounds. It is therefore declared admissible. II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 51. The second applicant complained of an infringement of his right to freedom of expression as a result of the measures imposed on him by domestic courts. He relied on Article 10 of the Convention, which reads: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” 52. The Government accepted that there had been “interference by public authority” with the exercise of the applicant ’ s right to freedom of expression. They contended, however, that that interference satisfied the requirements of the second paragraph of Article 10. 53. An interference contravenes Article 10 of the Convention unless it is “prescribed by law”, pursues one or more of the legitimate aims referred to in paragraph 2 of Article 10 and, in addition to being proportionate, is “necessary in a democratic society” for achieving such aims. A. The parties ’ submissions 54. The second applicant accepted that the interference served a legitimate aim, namely “the protection of the reputation or rights of others” within the meaning of Article 10 § 2 of the Convention. 55. However, in his view, the imposed prohibition had not been lawful, as section 7 of the Unfair Competition Act was not clear, and a prohibition based on that law was therefore not foreseeable. Accordingly, the interference was not prescribed by law. 56. As regards the necessity of the interference, the second applicant emphasised that he had contributed to a debate of public interest, and that, in respect of public shareholder companies, the limits of acceptable criticism were wider. He acknowledged that the term “locust” had a negative meaning associated with private-equity funds. However, there had been a substantive factual basis for his allegations, as the shareholders of the F. company were also companies limited by shares, and a private - equity fund was managing the holdings of one of the shareholders of the F. company. By calling the F. company a “locust” company, he had not intended to act competitively. Instead, his intention had been to voice a pointed criticism of a process he considered unlawful. The statement had aimed to point out the ongoing shift from the predominance of independent medical practitioners to a medical service determined by capital, and the consequent risks involved for doctors and their work. Moreover, the prohibition imposed by the domestic courts would prevent him from fulfilling his duties as President of the Vienna Chamber of Medical Doctors. Therefore, the interference was also not proportionate. 57. The Government submitted that the interference was “prescribed by law”, as it had its basis in sections 1 and 7 of the Unfair Competition Act. Those provisions were formulated with sufficient precision to enable the citizen to regulate his conduct, as required by the Court ’ s case - law. In the field of competition law in particular, an absolutely precise formulation could not be expected, as business markets and ways of communicating would always be subject to change. In addition, the interference had pursued a legitimate aim. 58. In relation to the necessity of the interference, the Government submitted that the interference was based on grounds which were “sufficient and relevant” in terms of the aims pursued, and was proportionate to those aims. They accepted that the second applicant had taken part in a debate on a matter of public interest, namely public health care in Austria. The domestic courts had issued decisions which, in the past, the Court had accepted as being within the wide margin of appreciation in purely commercial matters. The Austrian courts had followed this case-law and had considered the second applicant ’ s statement to be a statement of fact. On that basis, they had conducted a careful and detailed examination of the case and the parties ’ arguments. The second applicant had failed to prove the existence of these facts. The fact that the F. company was a company limited by shares was no proof that it would be ruthless towards its employees or act like a “locust”. Even if the statement had to be treated as a value judgment, the second applicant had failed to show a sufficient factual basis to support his assertions. The second applicant had acted for competitive purposes, as he had stated himself at the first - instance hearing. Moreover, the courts had not prohibited the second applicant from warning against the alleged threats companies limited by shares would pose to the system of medical care, in instances where such warnings had a sufficient factual basis. 59. The Government further pointed out that the courts had not imposed a penalty, but rather an obligation not to repeat the statement that the F. company acted ruthlessly or was a “locust”. Therefore, the interference with the second applicant ’ s rights was of minor effect. It would not prevent him from participating in the ongoing debate about the impact of companies on medical services. B. The Court ’ s assessment 1. “Prescribed by law” and legitimate aim 60. The Court reiterates that, in the past, it has held that section 1 of the Unfair Competition Act – which prohibits unfair commercial practice or any other unfair action which might affect the competitive capability of a business in a significant way for competitive purposes – was sufficiently precise for the purpose of Article 10 of the Convention and, accordingly, that an interference based on that provision was prescribed by law within the meaning of Article 10 (see, Krone Verlag GmbH & Co. KG v. Austria (no. 3), no. 39069/97, § 24, ECHR 2003 ‑ XII ). Section 7 of the Unfair Competition Act defines “conduct” in more detail than section 1, and in substance prohibits allegations being made or facts being disseminated about a competitor ’ s business for competitive purposes, unless such facts are demonstrably true. The Court sees that provision as sufficiently precise for the purpose of Article 10 of the Convention. Also, the national courts ’ orders to cease and desist are the legal consequences clearly outlined in section 7 of that Act. Therefore, the Court considers that the interference was prescribed by law, namely by sections 1 and 7 of the Unfair Competition Act. 61. Moreover, there is agreement between the parties that the interference served a legitimate aim, namely “the protection of the reputation or rights of others” within the meaning of Article 10 § 2 of the Convention. The Court shares this view. 2. “ Necessary in a democratic society ” 62. The Court notes that in the present case, the second applicant made a public statement which affected the reputation of the F. company. The right to protection of reputation is a right which is protected by Article 8 of the Convention. In order for Article 8 to come into play, however, an attack on a person ’ s reputation must attain a certain level of seriousness (see Delfi AS v. Estonia [GC], no. 64569/09, § 137, ECHR 2015). The Court has reiterated many times, that in cases which require the right to respect for private life to be balanced against the right to freedom of expression, the outcome of the application should not, in theory, vary according to whether it has been lodged with the Court under Article 8 of the Convention by the person who was the subject of the statement, or under Article 10 by the person who made the statement. Indeed, as a matter of principle these rights deserve equal respect (see Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, § 106, ECHR 2012). 63. The Court reiterates that, under its case-law, Contracting States have a certain margin of appreciation in assessing the necessity of an interference, but this margin is subject to European supervision as regards both the relevant rules and the decisions applying them ( see markt intern Verlag GmbH and Klaus Beermann v. Germany, 20 November 1989, § 33, Series A no. 165 ). 64. The Court has identified a number of criteria in the context of balancing the competing rights. The relevant criteria thus defined are: contribution to a debate of public interest, the degree of notoriety of the person affected, the subject of the news report, the prior conduct of the person concerned, the content, form and consequences of the publication, and, where appropriate, the circumstances in which the photographs were taken. Where it examines an application lodged under Article 10, the Court will also examine the way in which the information was obtained and its veracity, and the gravity of the penalty imposed on the person who made the statement (see, mutatis mutandis Couderc and Hachette Filipacchi Associés v. France [GC], no. 40454/07, § 93, 10 November 2015). 65. The Court has also found that large public companies inevitably and knowingly lay themselves open to close scrutiny of their acts, and that the limits of acceptable criticism are wider in respect of such companies. However, in addition to the public interest in open debate about business practices, there is a competing interest in protecting the commercial success and viability of companies – not just for the benefit of shareholders and employees, but also for the wider economic good. Therefore, the State enjoys a margin of appreciation as to the means it provides under domestic law by which a company can challenge the truth and limit the damage of allegations which risk harming its reputation ( see Steel and Morris v. the United Kingdom, no. 68416/01, § 94, ECHR 2005 ‑ II ). Furthermore, the Court emphasises that a wider margin of appreciation entrusted to the States is essential in the complex and fluctuating area of unfair competition ( see Krone Verlag GmbH & Co. KG (no. 3), cited above § 30, and Jacubowski v. Germany, 23 June 1994, § 26, Series A no. 291 ‑ A ). 66. However, it is necessary to reduce the extent of the margin of appreciation when what is at stake is not an individual ’ s purely “commercial” statement, but his participation in a debate of general interest, for example, a debate about public health ( see Hertel v. Switzerland, 25 August 1998, § 47, Reports 1998 ‑ VI). 67. The Court notes that, in order to assess the justification of a statement which is in issue, a distinction must be made between statements of fact and value judgments. While the existence of facts can be demonstrated, the truth of value judgments is not susceptible of proof. The requirement to prove the truth of a value judgment is impossible to fulfil and infringes freedom of opinion itself, which is a fundamental part of the right secured by Article 10. However, even where a statement amounts to a value judgment, there must exist a sufficient factual basis to support it. The classification of a statement as one of fact or as a value judgment is a matter which, in the first place, falls within the margin of appreciation of the national authorities – in particular, the courts (see, Lindon, Otchakovsky ‑ Laurens and July v. France [GC], nos. 21 279/02 and 36448/02, § 55, ECHR 2007 ‑ IV). However, the Court can change this classification under its supervisory role (see Kharlamov v. Russia, no. 27447/07, § 31, 8 October 2015; Pinto Pinheiro Marques v. Portugal, no. 26671/09, § 43, 2 2 January 2015). 68. Turning to the circumstances of the present case, the Court notes that the domestic courts took the statement of 18 January 2007 into consideration in its entirety, and found that the statement was made in the clearly economic context of competing medical practices and capital companies providing the same services. They acknowledged that where a competitor, even for economic purposes, took part in a debate of public interest, freedom of expression had to hold more weight with regard to the balancing exercise. However, the term “locust” was almost exclusively loaded with negative meaning, which led to an unethical general vilification of a competitor. The word used gave the reader the impression that the F. company had already demonstrated unethical conduct which harmed the interests of doctors and patients. Therefore, the domestic courts judged the relevant statement to be one of fact. The statement was also likely to damage the F. company ’ s commercial interests, and had not been proved to be true. 69. The Court considers that there is no need to further clarify whether the present statement was one of fact or a value judgment, since a sufficient factual basis for it was needed in any case. For a company which offers medical services, the accusation that it acted as a “locust” ( which, as can be seen from the context of the applicants ’ letter, also implied that the F. company or similar companies placed economic interests above those of its patients ) was a particularly serious one which affected its reputation. Thus, even if the applicant had intended to make that statement in the context of a wider debate on an issue of public concern, he had to have a solid factual basis on which to base that allegation. In the domestic proceedings, the Austrian courts – after carefully examining the arguments put forward by the applicant – concluded that there was no such factual basis, and the applicant has likewise not provided any persuasive argument substantiating his allegations. Neither the fact that the shares in the F. company are owned by other companies limited by shares and that one of those shareholders is managed by a private - equity fund, nor the fact that financial resources for expansion are raised by debenture provides a factual basis for the unethical conduct typically associated with “locust” corporations. In addition, the fact that doctors are employees within the F. company does not provide a factual basis for the second applicant ’ s allegations. The general remarks by the second applicant concerning the future impact of the growing popularity of companies providing medical services are not related to any actions on the part of the F. company; therefore, they cannot provide a factual basis for his allegations against that company. 70. Accordingly, the Court arrives at the conclusion that the prohibition imposed on the second applicant was based on “relevant and sufficient” grounds. 71. As regards the measures imposed on the second applicant, the Court notes that, according to its case-law, the nature and severity of the interference imposed are factors to be taken into account when assessing its proportionality ( see mutatis mutandis Lindon, Otchakovsky-Laurens and July, cited above, § 59, and Europapress Holding d.o.o. v. Croatia, no. 25333/06, § 54, 22 October 2009 ). 72. The Vienna Commercial Court did not impose a penalty, but prohibited the second applicant from calling the F. company ruthless by the term “locust”. The second applicant was also ordered to publish the operative part of the Vienna Commercial Court ’ s judgment on the first applicant organisation ’ s website, and in its print newsletter. Even if the second applicant now risks the imposition of fines for non-compliance with the injunction, the nature and severity of the court ’ s action was moderate. The second applicant also failed to give reasons as to why the court ’ s action would prevent him from fulfilling his duties. 73. In conclusion, the Court finds that the interference with the exercise of the second applicant ’ s right to freedom of expression was necessary in a democratic society, within the meaning of Article 10 of the Convention, in order to protect the reputation and rights of the F. company. There has therefore been no violation of Article 10 of the Convention. | The Court held that there had been no violation of Article 10 (freedom of expression) of the Convention in respect of the second applicant, finding that the interference with the exercise of his right to freedom of expression was necessary in a democratic society in order to protect the reputation and rights of the company in question. The Court further declared inadmissible (incompatible ratione personae) the application insofar as it concerned the first applicant. |
923 | Absence of outside influence | II. RELEVANT DOMESTIC LAW A. General provisions 21. Pursuant to Sections 341 ff. of the Social Insurance Act ( Allgemeines Sozialversicherungsgesetz ) the Association of Social Insurance Boards ( Hauptverband der Sozialversicherungsträger ) on behalf of the Regional Health Insurance Board ( Gebietskrankenkasse ) concludes with the respective Regional Medical Association a general agreement ( Gesamtvertrag ). The Regional Health Insurance Board concerned has to consent to the general agreement which is the basis of individual contracts ( Einzelvertrag ) between the respective Regional Health Insurance Board and medical practitioners. It regulates, inter alia, the doctor ’ s fees for medical treatments effected by practitioners under contract. B. The composition of the Regional Appeals Commission 22. The Social Insurance Act, in the version in force at the material time, provided as follows: "344 (1) In order to arbitrate and give a decision on disputes of a legal or factual nature arising in connection with an individual contract, a Joint Arbitration Committee shall be established in each Land ... (2) The Joint Arbitration Committee shall consist of four members, two of whom shall be appointed by the Regional Medical Association and two by the Regional Health Insurance Board, which is party to the individual contract. ... (4) An appeal can be lodged with the Regional Appeals Commission against a decision given by the Joint Arbitration Committee. .... 345 (1) For each Land, a permanent Regional Appeals Commission shall be established. It shall consist of a professional judge as Chairman and of four assessors. The Chairman shall be appointed by the Federal Minister of Justice. The Chairman must be a judge who, at the time of his appointment, is working at a court trying cases under labour and social insurance legislation. The Regional Medical Association and the Association of Social Insurance Boards each provide two assessors." 23. The non-judicial members of the Regional Appeals Commission are appointed for a renewable period of five years and not subject to the hierarchical authority of the bodies which sent them (Article 21 of the Federal Constitution). They may only be recalled, if they do not anymore fulfil the professional requirements to be appointed or if they violate or neglect their official duties. Moreover, they may be recalled upon request of the sending organisation for important personal reasons by the Federal Minister of Justice. 24. Decisions of the Regional Appeals Commissions are excluded from the competence of the Administrative Court ( Verwaltungsgerichtshof ) by Article 133 § 4 of the Federal Constitutional Law. 25. On 1 September 2002 an amendment of the Social Insurance Act, modifying the manner of appointment of the assessors, entered into force. The amended version of Section 345, in so far as relevant, provides as follows: “... The Federal Minister of Justice shall appoint two assessors upon proposal of the Austrian Medical Association respectively and two upon proposal of the Association of Social Insurance Boards. Representatives and employees of the Regional Health Insurance Board and members and employees of the Regional Medical Association who are parties to the general agreement on which the individual contract subject to the dispute is based, must not be assessors in the respective proceedings.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 26. The applicant complained that the Regional Appeals Commission could not be regarded as an independent and impartial tribunal as required by Article 6 § 1 of the Convention which, so far as material, reads as follows: “1. In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing ... by an independent and impartial tribunal established by law. ... ” 27. Referring to the case of Hortolomei v. Austria (no. 17291/90, Commission ’ s report of 16 April 1998, § 46 ), the applicant submitted in particular that he was challenging a contract concluded by the two bodies, namely the Association of Social Insurance Boards and the Tyrol Medical Association, which had sent the assessors sitting in the Regional Appeals Commission. Moreover, in the second set of the proceedings, the Association of Social Insurance Boards provided as assessors two deputy directors of the Tyrol Regional Health Insurance Board, which was both party to the general agreement and to the individual contract. 28. The Government contended that there was no appearance of a lack of independence and impartiality of the Regional Appeals Commission and relied in the first place on the Constitutional Court ’ s decision of 16 December 1999 (see paragraph 19 above). They pointed out that the Constitutional Court had quashed several decisions of the Regional Appeals Commission, if one of the assessors had been directly involved in the negotiations of the contracts to be examined in subsequent proceedings. 29. However no member of the Regional Appeals Commission had been involved in the negotiation or conclusion of the general agreement to be considered in the proceedings at issue. The present case, therefore, had to be distinguished from McGonnell v. the United Kingdom (no. 28 488/95, §§ 53-58, ECHR 2000-II), where the Court found a violation of Article 6 § 1 on account of the direct involvement of a judge in the adoption of the development plan at issue in the proceedings. The present case was rather comparable to Siglfirđingur ehf v. Iceland (dec.) ( no. 34142/96, 7 September 1999 ) in which the Court found that the presence of assessors appointed by the Employers ’ Federation and the Federation of Labour in Icelandic labour courts did not in itself justify doubts as to their independence and impartiality. Finally, they submitted that the Social Insurance Act had been amended in 2002 (see above, paragraph 25). 30. The Court recalls that in order to establish whether a tribunal can be considered as “independent”, regard must be had, inter alia, to the manner of appointment of its members and their term of office, the existence of guarantees against outside pressures and the question whether the body presents an appearance of independence. As to the question of “impartiality”, there are two aspects to this requirement. Firstly, the tribunal must be subjectively free of personal prejudice or bias. Secondly, it must also be impartial from an objective viewpoint, that is, it must offer sufficient guarantees to exclude any legitimate doubt in this respect (see Findlay v. the United Kingdom, judgment of 25 February 1997, Reports of Judgments and Decisions 1997 ‑ I, p. 281, § 73). The concepts of independence and objective impartiality are closely linked (ibid.) and the Court will consider them together. 31. The Regional Appeals Commission is composed of a professional judge as chairman who is appointed by the Federal Minister of Justice and of four assessors, two of which are appointed by the Regional Medical Association, two by the Association of Social Insurance Boards. 32. What is at issue in the present case is the independence and objective impartiality of the four assessors. The Government argued in essence that only situations in which a member of the Regional Appeals Commission has been directly involved in the negotiation of the contract at issue give rise to objectively justified fears about a lack of independence and objective impartiality of the Regional Appeals Commission. 33. The Court is not convinced by this argument. It considers that situations falling short of the direct involvement of a member of a tribunal in the subject matter to be decided may give rise to legitimate doubts as regards that tribunal ’ s independence and impartiality. It considers that the present case is comparable to the case of Hortolomei (cited above, § 46 ) in which the European Commission of Human Rights held that the Regional Appeals Commission set up under the Austrian Social Insurance Act did not present the necessary appearance of independence and impartiality as the assessors were nominated by and had close links with the bodies which had concluded the guidelines challenged in that case. It found that the applicant “could legitimately fear that the assessors – notwithstanding their five year terms of office and formal independence of the executive – had a common interest contrary to his own and therefore that the balance of interests, inherent in the sending of representatives of the medical profession and the Health Insurance Boards in other cases, was liable to be upset in his case.” 34. The Court finds no reason to reach a different conclusion in the present case. It notes that, in both sets of proceedings against the Tyrol Regional Health Insurance Board the applicant challenged the general agreement between the Association of Social Insurance Boards and the Tyrol Medical Association on which his doctor ’ s fees were based. 35. As regards the first set of proceedings the Court considers that, for the reasons set out in Hortolomei, the mere fact that the two bodies which had concluded the impugned general agreement appointed the assessors to the Regional Appeals Commission is sufficient to justify the applicant ’ s fears as regards the Commission ’ s lack of independence and impartiality. The case relied on by the Government ( Siglfirđingur ehf, cited above) cannot lead to another finding, since the assessors in the labour courts at issue in that case were representatives of conflicting spheres of interest but, unlike the present case, there were no circumstances liable to upset the balance inherent in such a system. 36. As to the second set of proceedings the Court notes that, in addition, the two assessors appointed by the Association of Social Insurance Boards were senior officials of the Tyrol Regional Health Insurance Board, i.e. the applicant ’ s opponent in the proceedings. This must have aggravated the applicant ’ s legitimate fears that the Regional Appeals Commission might not approach his case with the necessary independence and impartiality. 37. Finally, the Court notes that the lack of independence and impartiality of the Regional Appeals Commission was not remedied on appeal, as its decision was not subject to control by a judicial body that has full jurisdiction and provides the guarantees of Article 6 § 1. In the present case an appeal to the Administrative Court was excluded by law, and the Constitutional Court does not have full jurisdiction, the scope of the case before it being limited to issues of constitutional law (see Hortolomei, cited above, §§ 49-50, with further references). 38. The Court therefore concludes that there has been a violation of Article 6 § 1 in both sets of proceedings. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 39. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 40. The applicant requested an overall amount of EUR 1,331,934 for pecuniary and non-pecuniary damage. In respect of pecuniary damage he claimed that he would have succeeded in the domestic proceedings had the Regional Appeals Commission been impartial. 41. The Government commented that there was no causal link between the alleged violation and the pecuniary damage claimed. As to non-pecuniary damage the finding of a violation was sufficient. 42. The Court reiterates that it is not called upon to speculate what the outcome of the proceedings would be if they were in conformity with the requirements of Article 6 § 1 (see Werner v. Austria, judgment of 24 November 1997, Reports 1997-VII, p. 2514, § 72). Consequently, no award under this head is made. 43. The Court considers that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage which the applicant may have suffered (see McGonnell, cited above, § 61). B. Costs and expenses 44. The applicant claimed EUR 2,979.58, including VAT, in respect of costs and expenses incurred in the proceedings before the Constitutional Court and EUR 44,128.22, including VAT, for costs and expenses incurred in the Convention proceedings. 45. The Government submitted that EUR 4,000 appeared appropriate in respect of the Convention proceedings. 46. The Court observes that, in both sets of proceedings, the applicant ’ s complaint to the Constitutional Court did not only concern the issue of impartiality but also involved a number of other questions. Making an assessment on an equitable basis, it awards the applicant EUR 1,000 in respect of the domestic proceedings. 47. Moreover, the Court observes that the applicant ’ s claim in respect of the Convention proceedings is excessive. It finds the sum accepted by the Government reasonable and therefore awards the applicant EUR 4,000 under this head. 48. In sum, a total amount of EUR 5,000 is awarded in respect of costs and expenses plus any tax that may be chargeable on that amount. C. Default interest 49. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 6 § 1 of the Convention. It noted in particular that the assessors appointed to the Regional Appeals Commission were nominated by and had close links with the two bodies which had drawn up the general agreement at issue. In the first set of proceedings, the mere fact that the two bodies had appointed the assessors to the Regional Appeals Commission was in itself sufficient to justify the applicant’s fears about the Commission’s lack of independence and impartiality. In the second set of proceedings, the two assessors appointed by the Association of Social Insurance Boards were also senior officials of the Tyrol Regional Health Insurance Board which must have aggravated the applicant’s fears. Nor was the lack of independence or impartiality of the Regional Appeals Board remedied on appeal; its decision was not subject to review by a judicial body, an appeal to the administrative court being excluded by law and the jurisdiction of the constitutional court being confined to questions of constitutional law. |
657 | Teachers and university lecturers | II. RELEVANT DOMESTIC LAW AND INTERNATIONAL MATERIAL 20. Article 49 of the Code of Obligations provides as follows: “Any person who alleges that his personality rights have been illegally violated can claim compensation for non-pecuniary damage. The judge shall take into account the parties'socio-economic situation, their occupation and social status when determining the amount of compensation...” 21. In its Recommendation 1762 (2006), the Parliamentary Assembly of the Council of Europe adopted the following declaration for the protection of academic freedom of expression: “ ... 4. In accordance with the Magna Charta Universitatum, the Assembly reaffirms the right to academic freedom and university autonomy which comprises the following principles: 4.1. academic freedom in research and in training should guarantee freedom of expression and of action, freedom to disseminate information and freedom to conduct research and distribute knowledge and truth without restriction; ... 4.3. history has proven that violations of academic freedom and university autonomy have always resulted in intellectual relapse, and consequently in social and economic stagnation; ... ” THE LAW I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 22. The applicant complained that his right to freedom of expression had been interfered with in breach of Article 10 of the Convention, which reads as follows: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers ... 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society ... for the protection of the reputation or rights of others .. .” 23. The Government contested that argument. A. Admissibility 24. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties'submissions 25. The applicant claimed that, as an academic, he had fulfilled his duty to inform scientific circles and the public at large about the weaknesses of the discipline in which he taught. In his statements, he had not mentioned the name of the plaintiff, but even if he had done so, this was not a valid reason to restrict his right to freedom of expression. In any event, the opinions expressed by him had had a factual basis given that the plaintiff had been dismissed from his post on account of inadequate scientific competence and personal values. The applicant concluded therefore that there was no pressing social need capable of justifying the interference in question and that it was not proportionate to the aim pursued. 26. The Government submitted that the applicant had sought to create a polemic about an incident which had occurred between him and N. A. C. several years before and that his words had exceeded the limits of a scientific discussion, although they had been uttered in a scientific environment. When striking a balance between the conflicting interests, namely the applicant's right to freedom of expression against the plaintiff's right to reputation, the domestic courts had ruled in favour of the latter. The interference in question was proportionate to the aim pursued and should be considered to fall within the margin of appreciation of the national authorities. 2. The Court's assessment 27. The Court notes that it was not in dispute between the parties that the final judgment given in the defamation case constituted an “interference” with the applicant's right to freedom of expression, protected by Article 10 § 1 of the Convention. Nor was it contested that the interference was “prescribed by law” and “pursued a legitimate aim”, that of protecting the reputation or rights of others, for the purposes of Article 10 § 2. It thus remains to be determined whether the interference in question was “necessary in a democratic society”. ( a) Relevant principles 28 The Court reiterates that the test of “necessity in a democratic society” requires the Court to determine whether the interference complained of corresponded to a “pressing social need”. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a “restriction” is reconcilable with freedom of expression as protected by Article 10 (see, among many other authorities, Perna v. Italy [GC], no. 48898/99, § 39, ECHR 2003 ‑ V; Association Ekin v. France, no. 39288/98, § 56, ECHR 2001 ‑ VIII ). In this context, the Court reiterates that paragraph 2 of Article 10 recognises that freedom of speech may be restricted in order to protect reputation. In other words, the Convention itself announces that restrictions on freedom of expression are to be determined within the framework of Article 10 enshrining freedom of speech. 29. One factor of particular importance for the Court's determination in the present case is the distinction between statements of fact and value judgments. While the existence of facts can be demonstrated, the truth of value judgments is not susceptible of proof. The requirement to prove the truth of a value judgment is impossible to fulfil and infringes freedom of opinion itself, which is a fundamental part of the right secured by Article 10 (see, for example, Lingens v. Austria, 8 July 1986, § 46, Series A no. 103; Oberschlick v. Austria (no. 1), 23 May 1991, § 63, Series A no. 204 ). However, even where a statement amounts to a value judgment, the proportionality of an interference may depend on whether there exists a sufficient factual basis for the impugned statement, since even a value judgment may be excessive if it has no factual basis to support it ( see Jerusalem v. Austria, no. 26958/95, § 43, ECHR 2001 ‑ II ). 30. Finally, the amount of compensation awarded must “bear a reasonable relationship of proportionality to the ... [moral] ... injury ... suffered” by the respondent in question (see Tolstoy Miloslavsky v. the United Kingdom, 13 July 1995, § 49, Series A no. 316 ‑ B; see also Steel and Morris v. the United Kingdom, no. 68416/01, § 96, ECHR 2005 ‑ II, where the Court held that the damages awarded “ although relatively moderate by contemporary standards ... [were ] ... very substantial when compared to the modest incomes and resources of the ... applicants ...” and, as such, in breach of the Convention). ( b) Application of the above principles to the facts of the case 31. The Court notes that the impugned statements were made by the applicant through distribution of a paper at a scientific conference. In this paper, the applicant criticised in essence the system of appointment and promotion of academics in the university. Relying on his personal experience, he maintained that the presence on promotion panels of persons who were not experts in the field of construction management led to the selection of academically inadequate persons for the posts of assistant professors. He asserted in that context that a candidate, who did not have adequate qualifications, had been promoted to an assistant professorship (see paragraph 7 above). 32. In the Court's opinion, these assertions should be qualified as value judgments on an issue of public importance as they concerned the applicant's assessment of the appointment and promotion system in the universities. In this connection, the Court reiterates that the truthfulness of a value judgment is not susceptible of proof. The necessity of a link between a value judgment and its supporting facts may vary from case to case according to the specific circumstances (see Feldek v. Slovakia, no. 29032/95, § 86, ECHR 2001 ‑ VIII ). This being so, in the circumstances of the present case, the Court finds that the value judgment made by the applicant was based on his personal experience in promotion panels and information which was already known in academic circles. Accordingly, the applicant's statements were, at least in part, susceptible of proof (see, Boldea v. Romania, no. 19997/02, § 56, ECHR 2007 ‑ ... (extracts) ). 33. However, the Turkish courts did not provide the applicant with an opportunity to substantiate his statements. Although, in the course of the proceedings against him, the applicant endeavoured to demonstrate that his statements were well-founded or that at least he voiced them in good faith since the plaintiff had later been dismissed from his post as a result of his inadequate scientific competence and personal values, the domestic courts did not address his arguments (see paragraphs 15 and 16 above). They rather concluded that the following statements, “ ... he managed to pass the assistant professorship examination before another panel, whose members were not from the construction management department, and without publishing a single article ... ” had constituted an attack on N.A.C.'s reputation, taking the view that the applicant had implied that N.A.C. would have failed the exam had he been examined by a different panel (see paragraphs 9, 10 and 13 above). 34. The Court notes that the Court of Cassation attached greater importance to the reputation of an unnamed person than to the freedom of expression that should normally be enjoyed by an academic in a public debate. Nor did it explain why the reputation of the plaintiff, whose name was not even mentioned in the paper, outweighed the applicant's freedom of expression that was recognised by the first instance court as being his constitutional right (see paragraph 12 above). 35. In this connection, the Court underlines the importance of academic freedom, which comprises the academics'freedom to express freely their opinion about the institution or system in which they work and freedom to distribute knowledge and truth without restriction (see paragraph 21 above). 36. In view of the above, the Court considers that the Court of Cassation did not convincingly establish that there was pressing social need for putting the protection of the personality rights of an unnamed individual above the applicant's right to freedom of expression and the general interest in promoting this freedom where issues of public interest are concerned. In particular, it does not appear from the domestic courts'decisions that the applicant's statement affected N. A. C.'s career or private life. 37. Finally, although the applicant did not specify his monthly income at the relevant time, the Court considers that the damages he was ordered to pay to the plaintiff were very substantial (see paragraphs 16 and 19 above) when compared to the incomes and resources of academics in general. 38. In conclusion, the Court finds that the reasons adduced by the domestic courts cannot be regarded as a sufficient and relevant justification for the interference with the applicant's right to freedom of expression. The national authorities therefore failed to strike a fair balance between the relevant interests. 39. It thus follows that the interference complained of was not “necessary in a democratic society” within the meaning of Article 10 § 2 of the Convention. 40. There has therefore been a violation of Article 10 of the Convention. II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 41. The applicant further complained of violations of Article 6 of the Convention and Article 1 of Protocol No. 1. In this connection, he alleged that he had been denied a fair hearing since the domestic court decisions were arbitrary and without reasoning. He also submitted that the compensation he had been ordered to pay to the plaintiff had amounted to a violation of his right to the peaceful enjoyment of his possessions. 42. The Government contested these arguments. 43. The Court notes that these complaints are linked to that examined above and must therefore likewise be declared admissible. 44. Having regard to the facts of the case, the parties'submissions and its finding of a violation of Article 10, the Court considers that it has examined the main legal question raised in the present application. It concludes therefore that there is no need to make a separate ruling under this head (see, for example, Mehmet and Suna Yiğit v. Turkey, no. 52658/99, § 43, 17 July 2007, and K.Ö. v. Turkey, no. 71795/01, § 50, 11 December 2007). III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 45. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 46. The applicant claimed 5,300 euros (EUR) in respect of pecuniary damage and EUR 10,000 for non-pecuniary damage. As regards the pecuniary damage, he explained that the principal compensation, interest and court fees had amounted to EUR 2,000 and that the interest on this amount since 2002 would come to EUR 3,300. 47. The Government asserted that no award should be made under this head. They submitted, in the alternative, that should the Court decide to award damages, this should not lead to unjust enrichment. 48. The Court notes that the applicant suffered pecuniary damage in that he had been ordered to pay the plaintiff TRL 3,455,215,000. Furthermore, as regards the non-pecuniary damage, the Court considers that the applicant may be taken to have suffered a certain amount of distress in the circumstances of the case. It therefore awards him a total sum of EUR 3,500 in respect of the damage under this head and dismisses the applicant's request for the payment of interest on that sum. B. Costs and expenses 49. The applicant also claimed EUR 1,180 for the costs and expenses incurred before the domestic courts and EUR 8,050 for those incurred before the Court (lawyer's fees in the amount of EUR 8,000 and postage expenses in the amount of EUR 50 ). 50. The Government submitted that the amounts claimed were baseless and excessive. 51. According to the Court's case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, the Court notes that the applicant did no more than refer to the Istanbul Bar Association's scale of fees in respect of his legal representative's claims and failed to submit any supporting documents. The Court therefore only makes an award in respect of the postage costs under this head, namely EUR 50 (see Balçık and Others v. Turkey, no. 25/02, § 65, 29 November 2007). C. Default interest 52. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 10 (freedom of expression) of the Convention, finding that the Turkish authorities had failed to strike a fair balance between the relevant interests. In particular, without addressing the applicant’s arguments, the domestic courts had concluded that the impugned statements had constituted an attack on the plaintiff’s reputation. Further, they had not explained why the reputation of the plaintiff, whose name had not even been mentioned in the paper, had outweighed the applicant’s freedom of expression. In this judgment the Court also underlined the importance of academic freedom, and in particular the freedom of academics to express freely their opinion about the institution or system in which they worked and their freedom to disseminate knowledge and truth without restriction. |
212 | Access to a lawyer | II. RELEVANT DOMESTIC LAW AND PRACTICE A. Conditions for the execution of life sentences, and compensatory remedies under the 1988 State and Municipalities Responsibility for Damage Act 58. The relevant domestic law and case-law concerning the regulations on the execution of life sentences and actions for damages in respect of poor conditions of detention were summarised in Harakchiev and Tolumov v. Bulgaria (nos. 15018/11 and 61199/12, §§ 108- 1 35 and §§ 136- 1 46 respectively, ECHR 2014 [extracts]). B. The right to the assistance of a lawyer in criminal proceedings and information to be provided to detainees concerning their rights 1. The Ministry of the Interior Act and its implementing regulations 59. The Ministry of the Interior Act 1997 and its 1998 implementing regulations allowed the police to arrest persons suspected of having committed criminal offences and detain them for twenty-four hours. Arrestees were entitled to legal assistance from the time of their arrest. The relevant provisions of the Act and the implementing regulations, in the version in force at the time of the applicant ’ s arrest, read as follows: Section 70 of the 1997 Act “(1) The police may detain persons: 1. who have committed criminal offences ... (4) Detained persons shall be entitled to legal assistance as of the time of their arrest.” Regulation 54 of the Act ’ s implementing regulations “(1) A detention order shall be made in respect of the persons mentioned in section 53 (1). (2) Orders made under (1) above shall mention: ... 5. the rights secured to the person concerned under section 70(3) and (4) of the Ministry of the Interior Act. (3) The order must be signed by the police department and the detainee. ... (6) A copy of the order shall be presented to the detainee.” 60. At the time of the applicant ’ s arrest domestic legislation did not provide for presenting detainees with a separate document setting out their rights, including the right to legal assistance. 61. On 6 March 2002 the Minister of the Interior issued an internal instruction stating that, immediately after their arrest, detainees had to sign two copies of a statement setting out their rights, including the right to legal assistance. 62. In 2003 Implementing Regulation 54(3) of the Ministry of the Interior Act (see paragraph 59) was amended. The amended regulation provided for the presentation to detainees of a “declaration of rights” which they had to sign, stating, in particular, their intention either to avail themselves of or to waive their right to legal assistance. The new wording of the paragraph was as follows: “( 3) The detainee shall fill in a declaration indicating that he has been informed of his rights and stating whether or not he intends to use his rights under paragraph (2) (5) (b)-(e).” 63. The domestic legislation and regulations introduced in this sphere since that time have incorporated a reference to the “declaration of rights” which detainees must sign after their arrest. 2. Code of Criminal Procedure 64. At the time of the proceedings in issue, the 1974 Code of Criminal Procedure allowed investigators responsible for criminal cases to order the suspect ’ s detention for twenty-four hours. The detention period could be extended by a prosecutor up to a maximum of three days. The legislative provisions on such detention and the rights conferred on the suspect during detention read as follows: Article 202 “(1) The investigator may, even without the prosecutor ’ s authorisation, order preliminary detention for a criminal offence which is subject to mandatory prosecution and for which a preliminary investigation is compulsory where: 1. the person in question was arrested at or just after the time of commission of the offence; 2. an eyewitness has identified the person as the perpetrator of the offence; 3. visible traces of the offence have been discovered on the person ’ s body or clothing or in his place of residence; 4. the person in question has attempted to flee ...” Article 203 “(1) The investigator must inform the prosecutor of the detention within twenty-four hours, mentioning the reasons for it. (2) The prosecutor must immediately confirm or revoke the detention order. Under the circumstances set out in Article 202 § 1, points 1 and 3, where detention has been ordered for a serious crime which is subject to mandatory prosecution, the prosecutor may extend the period of detention up to a maximum of three days. (3) If, on expiry of the period set out in paragraphs 1 and 2 above, the person concerned has not been charged with an offence, the investigator must release him. ...” Article 206 “(1) Individuals who are under a detention order ... within the meaning of Article 202 shall have the following rights: to be informed of the offences of which they are suspected; to make statements; to take action ... to challenge measures taken by the authorities responsible for the preliminary investigation ... 2) As regards the statements ... mentioned in the previous paragraph, the provisions of Articles 73 [and] 87 ... shall be applicable mutatis mutandis .” 65. During the preliminary investigation the suspect is formally notified of the charges against him by means of an indictment. This confers on him official defendant ( обвиняем ) status. From then on the person ’ s statements can be recorded for use in evidence in the criminal proceedings. The defendant has several procedural rights, including the right to the assistance of a lawyer at the preliminary investigation stage. The relevant provisions of the 1974 Code of Criminal Procedure read: Article 50 “The defendant is a person who has been charged under the conditions and according to the procedures set out in the present Code.” Article 51 “(1) The defendant has the following rights: to know the charges against him and the evidence on which those charges are based, to give statements on the charges, to have access to the case file and obtain the requisite copies of case papers, to submit evidence, to take part in the criminal proceedings, to submit requests ..., to speak last during questioning, to challenge the decisions of courts and preliminary investigation bodies infringing his rights and legitimate interests and to be assisted by a defence lawyer. At the defendant ’ s request, the defence lawyer shall be present during the implementation of the investigative measures. ...” Article 67 “(1) The defence lawyer may be a person practising the legal profession. ...” Article 70 “(1) Participation by a defence lawyer in the criminal proceedings is mandatory where: ... 3. the criminal case concerns a crime punishable by the death penalty, life imprisonment or a prison sentence of at least ten years. (3) When participation by a defence lawyer is mandatory, the competent authority shall be required to appoint a person practising the legal profession as defence lawyer. (4) The officially appointed defence lawyer shall be excluded from the criminal proceedings if the defendant engages a different defence lawyer.” Article 72 “(1) The defendant may, at any stage in proceedings, waive his right to the assistance of a defence lawyer, except in the situation mentioned in Article 70 § 1, paragraphs. 1 to 3. ...” Article 73 “(1) The defence lawyer may take part in the criminal proceedings as of the time the person concerned has been arrested or charged. (2) The authority responsible for the preliminary investigation must inform the defendant of his right to the assistance of a defence lawyer and permit him to contact such lawyer. That authority cannot implement any investigative measures before having fulfilled that obligation. ...” Article 85 “(1) Evidence shall be established on the basis of the defendant ’ s statements, the suspect ’ s statements, witness statements, records of the investigative and procedural steps and by other means as laid down in this Code. (2) Evidence which has not been gathered or drawn up in conformity with the rules of the present code shall be declared inadmissible. ...” Article 87 “(1) The defendant shall give evidence orally and directly before the competent authority. The defendant shall give evidence in the presence of a defence lawyer if he so requests. That request shall be recorded in minutes and the defence lawyer shall be invited to attend the questioning. ... (3) The defendant may refuse to give evidence. ...” Article 91 “(1) The indictment and the conviction cannot be based solely on the defendant ’ s confessions. (2) Confessions by the defendant shall not release the competent authorities from their obligation to gather other evidence in the course of the proceedings.” 3. Case-law 66. Under the established case-law of the Bulgarian Supreme Court of Cassation, if the authorities responsible for criminal investigations fail to formally charge the suspect in accordance with the requirements of the Code of Criminal Procedure, that omission amounts to a restriction of the rights of the defence and forces the courts to refer the case back to the preliminary investigation stage and the aforementioned authorities so that they can remedy the omission ( Тълкувателно решение № 2 от 7.10.2002 г. на ВКС по т. н. д. № 2/2002 г., ОСНК ). 67. By the same token, the absence of a defence lawyer during the charging of the suspect and the implementation of the subsequent investigative measures, when legal assistance is mandatory under the Code of Criminal Procedure, amounts to a major procedural flaw which necessitates the referral of the case back to the authorities responsible for the preliminary investigation ( Решение № 68 от 21.04.1992г. по н.д. № 986/91г. на ВС, I н.о. ). In that situation those authorities are required to repeat the investigative measures in question in the presence of a defence lawyer ( Решение № 604 от 31.10.1991г. по н.д. № 436/91г. на ВС, I н.о .). 68. Under the established case-law of the Bulgarian courts, evidence gathered in breach of the rules set out in the Code of Criminal Procedure, including statements made to the police, has no probative value and is excluded from the case file ( Решение № 179 от 21.11.1997г. на ВКС по н.д. № 182/1997г. ВК; Решение № 361 от 8.07.2003г. на ВКС по н.д. № 123/2003г., III н.о. ; Решение № 518 от 21.01.2009г. на ВКС по н.д. № 435/2008г., II н.о ., НК). III. RELEVANT INTERNATIONAL AND EUROPEAN UNION LAW A. United Nations 69. Article 14 of the 1966 International Covenant on Civil and Political Rights (“the Covenant”) protects the right to a fair trial. The relevant parts of that provision read as follows: Article 14 “... 3. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: ... (b) To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing; ... (d) To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it ...” 70. The Human Rights Committee (HRC) is the body responsible for monitoring the implementation of the Covenant by means of periodic State reports and individual communications. 71. The HRC considers that legal assistance should be possible not only at the trial stage but at all stages in proceedings (see Kelly v. Jamaica, 1991, 253/1987, § 5.10., and Borisenko v. Hungary, 2002, 852/1999, § 7.5), including during police questioning (see Gridin v. the Russian Federation, 2000, 770/1997, § 8.5). However, in Levinov v. Belarus (2011, 1812/2008, § 8.3) the HRC held that in the absence of any investigative measure during the period when the suspect had had no access to a lawyer Article 14 § 3 (b) of the Covenant had not been infringed by the authorities. 72. As regards the right to be informed of the right to a lawyer, in its concluding observations on the 4 th periodic report concerning the Netherlands ((2009), UN doc. CCPR/C/NDL/CO/4, § 11), the HRC considered that States should give full effect to the right to contact counsel before police questioning and ensure that individuals suspected of criminal offences were informed, on their arrest, of their right to legal assistance. 73. Moreover, in a number of cases the HRC has found a violation of Article 14 § 3 (d) of the Covenant owing to the failure to inform the accused of his right to legal assistance (see Saidova v. Tajikistan, 2004, 964/2001, and Khoroshenko v. the Russian Federation, 2011, 1304/2004). B. European Union 74. Directive 2012/13/EU of the European Parliament and of the Council on the right to information in criminal proceedings was adopted on 22 May 2012. The deadline for its transposition into the legislation of the European Union Member States was 2 June 2014. The relevant provisions of the Directive read as follows: Article 1 Subject matter “This Directive lays down rules concerning the right to information of suspects or accused persons, relating to their rights in criminal proceedings and to the accusation against them ...” Article 2 Scope “1. This Directive applies from the time persons are made aware by the competent authorities of a Member State that they are suspected or accused of having committed a criminal offence until the conclusion of the proceedings ...” Article 3 Right to information about rights “1. Member States shall ensure that suspects or accused persons are provided promptly with information concerning at least the following procedural rights, as they apply under national law, in order to allow for those rights to be exercised effectively: (a) the right of access to a lawyer ... 2. Member States shall ensure that the information provided for under paragraph 1 shall be given orally or in writing, in simple and accessible language, taking into account any particular needs of vulnerable suspects or vulnerable accused persons.” Article 4 Letter of Rights on arrest “1. Member States shall ensure that suspects or accused persons who are arrested or detained are provided promptly with a written Letter of Rights. They shall be given an opportunity to read the Letter of Rights and shall be allowed to keep it in their possession throughout the time that they are deprived of liberty ...” 75. Directive 2013/48/EU of the European Parliament and of the Council on, inter alia, the right of access to a lawyer in criminal proceedings was adopted on 22 October 2013. The deadline for its transposition into the legislation of the European Union Member States was 27 November 2016. The relevant provisions of the Directive read as follows: Article 1 Subject matter “This Directive lays down minimum rules concerning [the right] of suspects and accused persons in criminal proceedings ... to have access to a lawyer ...” Article 2 Scope “1. This Directive applies to suspects or accused persons in criminal proceedings from the time when they are made aware by the competent authorities of a Member State, by official notification or otherwise, that they are suspected or accused of having committed a criminal offence, and irrespective of whether they are deprived of liberty. It applies until the conclusion of the proceedings ...” Article 3 The right of access to a lawyer in criminal proceedings “1. Member States shall ensure that suspects and accused persons have the right of access to a lawyer in such time and in such a manner so as to allow the persons concerned to exercise their rights of defence practically and effectively. 2. Suspects or accused persons shall have access to a lawyer without undue delay. In any event, suspects or accused persons shall have access to a lawyer from whichever of the following points in time is the earliest: (a) before they are questioned by the police or by another law enforcement or judicial authority; (b) upon the carrying out by investigating or other competent authorities of an investigative or other evidence-gathering act in accordance with point (c) of paragraph 3; (c) without undue delay after deprivation of liberty; (d) where they have been summoned to appear before a court having jurisdiction in criminal matters, in due time before they appear before that court. 3. The right of access to a lawyer shall entail the following: (a) Member States shall ensure that suspects or accused persons have the right to meet in private and communicate with the lawyer representing them, including prior to questioning by the police or by another law enforcement or judicial authority; (b) Member States shall ensure that suspects or accused persons have the right for their lawyer to be present and participate effectively when questioned. Such participation shall be in accordance with procedures under national law, provided that such procedures do not prejudice the effective exercise and essence of the right concerned. Where a lawyer participates during questioning, the fact that such participation has taken place shall be noted using the recording procedure in accordance with the law of the Member State concerned; (c) Member States shall ensure that suspects or accused persons shall have, as a minimum, the right for their lawyer to attend the following investigative or evidence-gathering acts where those acts are provided for under national law and if the suspect or accused person is required or permitted to attend the act concerned: (i) identity parades; (ii) confrontations; (iii) reconstructions of the scene of a crime. 4. Member States shall endeavour to make general information available to facilitate the obtaining of a lawyer by suspects or accused persons. Notwithstanding provisions of national law concerning the mandatory presence of a lawyer, Member States shall make the necessary arrangements to ensure that suspects or accused persons who are deprived of liberty are in a position to exercise effectively their right of access to a lawyer, unless they have waived that right in accordance with Article 9. ...” Article 9 Waiver “1. Without prejudice to national law requiring the mandatory presence or assistance of a lawyer, Member States shall ensure that, in relation to any waiver of a right referred to in Articles 3 and 10: (a) the suspect or accused person has been provided, orally or in writing, with clear and sufficient information in simple and understandable language about the content of the right concerned and the possible consequences of waiving it; and (b) the waiver is given voluntarily and unequivocally. 2. The waiver, which can be made in writing or orally, shall be noted, as well as the circumstances under which the waiver was given, using the recording procedure in accordance with the law of the Member State concerned. 3. Member States shall ensure that suspects or accused persons may revoke a waiver subsequently at any point during the criminal proceedings and that they are informed about that possibility. Such a revocation shall have effect from the moment it is made.” THE LAW I. SCOPE OF THE GRAND CHAMBER ’ S JURISDICTION 81. In his memorial submitted to the Grand Chamber and in the course of the hearing, the applicant asked the Grand Chamber to reverse the decision given on 23 August 2011 by the Chamber declaring inadmissible his complaint under Article 3 of the Convention relating to his whole-life sentence. 82. The Government opposed that request. They submitted that it was contrary to the Court ’ s case-law to the effect that the case which was referred to the Grand Chamber was the application as declared admissible by the Chamber. 83. The Court reiterates that the content and scope of the “case” referred to the Grand Chamber are delimited by the Chamber ’ s decision on admissibility (see, in particular, K. and T. v. Finland [GC], no. 25702/94, §§ 140 and 141, ECHR 2001 ‑ VII; Azinas v. Cyprus [GC], no. 56679/00, § 32, ECHR 2004 ‑ III; Kurić and Others v. Slovenia [GC], no. 26828/06, §§ 235 and 236, ECHR 2012 (extracts); and Murray v. the Netherlands [GC], no. 10511/10, § 86, ECHR 2016 ). This means that the Grand Chamber cannot examine those parts of the application which have been declared inadmissible by the Chamber. The Court sees no reason to depart from that principle in the present case. 84. Accordingly, in the framework of the present case, the Court has no jurisdiction to adjudicate on the complaint raised under Article 3 of the Convention concerning the imposition of a whole-life sentence on the applicant. II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 85. The applicant complained of the physical conditions of his detention and of the prison regime in the Burgas Investigation Detention Facility and in Burgas and Sofia Prisons. He relied on Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. The parties ’ submissions 86. The applicant invited the Grand Chamber to endorse the Chamber ’ s conclusion that there had been a violation of Article 3 of the Convention. 87. The Government submitted no observations on this complaint before the Grand Chamber. However, they pointed out that a wide-ranging programme to reform the Bulgarian prison system was currently being implemented. The programme would ultimately facilitate the application of the European standards on prisoner treatment, including in terms of conditions of detention. B. The Court ’ s assessment 88. The Court notes that the Chamber found that there had been a violation of Article 3 of the Convention (see paragraphs 88-95 of the Chamber judgment). The Chamber stated in particular: “89. The applicant has been incarcerated since October 1999. Since that date he has been held in three different establishments: the Burgas Investigation Detention Facility, Burgas Prison and Sofia Prison. 90. The Court notes that the parties agree on the inadequacy of the material conditions which prevailed in the Burgas Investigation Detention Facility between October 1999 and April 2000, when the applicant was held there ... The report on the 1999 CPT visit corroborates this finding ... 91. The applicant was subsequently transferred to Burgas Prison, where he remained from 2000 to 2004 ... In the report on its 2002 visit the CPT delegation stated that the wing for life prisoners in Burgas Prison where the applicant ’ s cell was located had recently been refurbished, that the individual cells had an area of 6 m2 each and had adequate ventilation and lighting. The main problem noted by the CPT delegation had been the restricted access to the shared sanitary facilities and the use of buckets as toilets by the prisoners ... 92. On 25 February 2004 the applicant was transferred to Sofia Prison, where he continued to serve his sentence. According to the reports of the 2006, 2008 and 2014 CPT visits to that prison, all the cells in the prison ’ s high-security wing had in-cell sanitary facilities ... According to information presented by the Government, this section of the prison was renovated in 2005 and 2006, and the applicant benefited from a decent-sized individual cell ... However, the report of the CPT ’ s visit in 2014 once again singles out the general dilapidation of the area of Sofia Prison reserved for prisoners serving life sentences, and the lack of daylight and insufficient hygiene in the premises ... 93. The Court notes that throughout his years in prison the manner and method of executing the applicant ’ s life sentence, as determined by the prison regime assigned to him, were highly restrictive. The applicant had initially been assigned a so-called special prison regime: he had spent twenty-three hours a day locked up in his cell, mostly on his bed; his access to the prison library had been limited to the few minutes it took to choose and borrow a book; he had been allowed to attend the prison chapel twice a year, with a ban on meeting other prisoners ... In 2008 his prison regime was relaxed ... However, like all prisoners in his category, he was still kept separate from the rest of the prison population and his cell was kept locked during the day ( ibid .). The successive CPT reports show that the prisoners in the high-security wing of Sofia Prison have very few out-of-cell activities and are kept separated from the other prisoners ... 94. In the light of the foregoing facts and as it noted in the recent judgment in the case of Harakchiev and Tolumov, cited above, §§ 203-214, the Court considers that the applicant ’ s poor conditions of detention taken in conjunction with the restrictive regime under which he is serving his life sentence and the length of the prison term in question, subjected the applicant to an ordeal far exceeding the suffering inherent in the execution of a prison sentence. The Court therefore finds that the severity threshold required for the application of Article 3 of the Convention was exceeded in the present case. The applicant was placed in an ongoing situation of infringement of his right not to be subjected to inhuman and degrading treatment. 95. There has therefore been a violation of Article 3 of the Convention.” 89. The Court sees no reason to depart from the Chamber ’ s conclusions. Moreover, it observes that the report of the CPT ’ s last visit to Bulgaria and its public statement of 2015 mention that the poor conditions of detention noted in Sofia Prison persist (see paragraphs 79 and 80 above). 90. Like the Chamber, the Court considers that the applicant ’ s conditions of detention taken in conjunction with the restrictive regime under which he is serving his life sentence and the length of the prison term (since 1999), have subjected him to an ordeal exceeding the suffering inherent in the execution of a prison sentence and amount to inhuman and degrading treatment. 91. There was therefore a violation of Article 3 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 (c) OF THE CONVENTION 92. The applicant alleged that he had not been assisted by a lawyer for the first few days of his detention. He relied on Article 6 §§ 1 and 3 (c), which reads as follows: Article 6 “1. In the determination ... of any criminal charge against him, everyone is entitled to a fair ... hearing ... by a ... tribunal ... 3. Everyone charged with a criminal offence has the following minimum rights: ... (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require ...” 93. The Government contested that argument. A. The Chamber judgment 94. Having reiterated the principles emerging from the Court ’ s case-law concerning legal assistance, the Chamber considered that a distinction should be made between the present case and that of Dayanan v. Turkey (no. 7377/03, 13 October 2009) inasmuch as, unlike Turkish legislation at the material time, the relevant Bulgarian legislation did not restrict the right of detainees to be assisted by lawyers of their choosing from the time of their arrest. However, the Chamber noted that the applicant had not actually benefited from this legal safeguard for the first three days of his detention, but stated that it was unable to determine whether that situation had been due to the authorities ’ acting mala fide or the applicant ’ s own passivity. 95. The Chamber lastly concluded that the fairness of the proceedings had not been infringed, for the following reasons: (i) there was no indication in the file that the applicant had been questioned during the first three days of his detention; (ii) all his interrogations had taken place after he had been formally charged on 6 October 1999, in the presence of a lawyer; (iii) no other investigative measure involving the applicant had been implemented during that initial period of detention; (iv) the applicant had confessed to the offences a few days later, when he had been assisted by a lawyer of his choosing and had known that that confession could be used in evidence against him in support of a possible conviction; (v) his conviction had been based not solely on that confession but on a whole body of consistent evidence; (vi) the applicant had amply benefited from his right to defend himself with a lawyer ’ s assistance and the domestic courts had delivered reasoned judgments (see paragraphs 113-116 of the Chamber judgment). B. The parties ’ submissions 1. The applicant 96. The applicant invited the Grand Chamber to conclude that there had been a violation of Article 6 on the grounds that he had not been assisted by a lawyer while in police custody from 3 to 6 October 1999 at noon. 97. He submitted that he had made several requests between 3 and 6 October 1999 to consult a lawyer but that the authorities had rejected them. He stated that he had been questioned during that time, and maintained that his allegations were not ill-founded. He alleged that it would have been quite illogical for the authorities not to attempt to question him during that time, and the lack of any written trace of those interrogations corroborated his allegation that he had been pressured by the investigators to confess. 98. The applicant argued that the fact that he had remained silent when questioned on 6 and 12 October 1999 could not be deemed decisive. He explained that he had not had an opportunity to consult the lawyers before the questioning or to obtain guidance from them. That was also why the fact that he had been assisted by a lawyer of his choosing when he had confessed on 21 October 1999 could not be held against him. The lawyers ’ presence during those interrogations did not mean that they had provided him with any effective assistance. 99. Finally, the applicant affirmed that the right to legal assistance laid down in Article 6 § 3 (c) was autonomous from the requirement of a fair trial enshrined in Article 6 § 1. A finding of a violation or no violation of that autonomous right in the present case depended solely on the answer to the following question: were there any reasons justifying the restriction of his access to a lawyer while in police custody? If there were no such reasons, the fact that the conviction had not been exclusively based on the applicant ’ s confession and the fact that he had had the effective assistance of one or more lawyers for the rest of the criminal proceedings were of no consequence in relation to Article 6 § 3 (c). 2. The Government 100. The Government invited the Grand Chamber to follow the Chamber ’ s example by declaring that in the instant case there had been no violation of the relevant provisions of the Convention. 101. They observed that under domestic legislation the applicant had been entitled to legal assistance as of the time of his arrest, and that it had been the police officers ’ legal duty to inform him of that right. The Government affirmed that in the absence of any proof to the contrary, that obligation had been honoured. In any event the applicant ’ s allegations themselves indicated that he had been aware that domestic legislation entitled him to legal assistance. 102. Moreover, there was no evidence to corroborate the applicant ’ s allegations that while in police custody he had asked to speak to a lawyer and his request had been refused by the authorities. Domestic legislation at the material time had not provided for the preparation of written documents recording the detainee ’ s wish to consult a lawyer or his waiver of that right. Furthermore, the applicant had not, at any stage in the criminal proceedings before the domestic courts, raised his complaint concerning the absence of a lawyer during his time in police custody. 103. The Government further submitted that there was no evidence to support the applicant ’ s allegation that he had been questioned in police custody before being charged. At the hearing before the Grand Chamber the Government added that even supposing such a conversation or interrogation had taken place while the applicant was in police custody, it would have been conducted informally and could not have had any impact on the course of the criminal proceedings. At no stage in the proceedings had the authorities referred to any statements given by the applicant between 3 and 6 October 1999 at noon. Furthermore, his conduct during that period had not been taken into account in the ensuing criminal proceedings. During that time the applicant had been arrested, transferred to Burgas, taken to the Burgas detention facility and been subjected to medical examinations. At no stage in the domestic proceedings had he alleged that he had been questioned in police custody, and his observations on the subject before the Court had been inconsistent, contradictory and lacking in detail. 104. Lastly, the Government observed that the right to legal assistance as secured under Article 6 § 3 (c) was one of the aspects of the right to a fair criminal trial guaranteed by Article 6 § 1 of the Convention. They therefore submitted that the Court should seek to establish whether the overall fairness of the criminal proceedings in the present case had been affected by the fact that the applicant had not had the assistance of a lawyer while in police custody. The Government invited the Grand Chamber to uphold the Chamber ’ s finding that the criminal proceedings in the applicant ’ s case had generally been fair. He had been assisted by lawyers of his choosing, a body of evidence had been gathered and the case had been scrutinised by courts at three levels of jurisdiction, which had addressed the arguments put forward by the defence. No statement by the applicant or other piece of evidence that might have been used as a basis for his conviction had been gathered during his time in police custody without a lawyer. 3. Third-party submissions 105. In its observations to the Grand Chamber, the Association for the Prevention of Torture emphasised that making legal assistance available as soon as a suspect was detained was one of the fundamental safeguards for the fairness of criminal proceedings. In its case-law the Court had found violations of Article 6 §§ 1 and 3 (c) where confessions obtained during detention in the absence of a lawyer had subsequently been used to convict the person in question (citing Salduz v. Turkey [GC], no. 36391/02, ECHR 2008), but also where the detainees had opted to remain silent (citing Dayanan v. Turkey, cited above) or to deny their involvement in the offences with which they were charged (citing Yeşilkaya v. Turkey, no. 59780/00, 8 December 2009). The bodies responsible for human rights protection within the United Nations system had also emphasised the importance of legal assistance from the first few hours of detention. 106. Legal assistance at that early stage in criminal proceedings, even before the initial questioning, was essential in order to safeguard an arrested suspect ’ s right not to incriminate himself where he had not been informed of the charges against him. Legal assistance also helped guarantee the exercise of the other fundamental rights of the accused, such as those secured under Article 5 §§ 3 and 4 of the Convention. Thus, even if the detainee made no statement, the mere absence of a lawyer during the first few hours of detention was detrimental to the fairness of proceedings. That was particularly true in cases where the allegations were extremely serious and where the detainee was in a particularly vulnerable position. 107. With reference to various European, national and international legal instruments, the third party pointed out that it was widely accepted that an effective right of access to a lawyer required the following: the accused had to be informed in advance of his right to speak to a defence lawyer; access to the lawyer had to be provided as soon as the person was arrested, and at all events before the initial police questioning; the lawyer had to be able to perform all the services necessary for his work, such as being able to hold private talks with his client, discuss all the facts of the case, be present during questioning, put questions and ask for clarifications. 108. The third party reminded the Grand Chamber of the approach used by the Chamber in the case of Leonid Lazarenko v. Ukraine (no. 22313/04, § 57, 28 October 2010), in which the right to a fair trial had been found to have been irretrievably prejudiced by the fact that a confession obtained without access to a lawyer had been used for a conviction, even if they had not been the sole basis for it. 109. Lastly, the third party observed that even if a refusal by the authorities to allow the suspect to speak to a lawyer at the beginning of his detention had not impaired the overall fairness of the proceedings, such a situation could nevertheless amount to a violation of Article 6 § 3 (c). C. The Court ’ s assessment 1. General principles (a) Applicability of Article 6 in its criminal aspect 110. The protections afforded by Article 6 §§ 1 and 3 apply to a person subject to a “criminal charge”, within the autonomous Convention meaning of that term. A “criminal charge” exists from the moment that an individual is officially notified by the competent authority of an allegation that he has committed a criminal offence, or from the point at which his situation has been substantially affected by actions taken by the authorities as a result of a suspicion against him (see Deweer v. Belgium, 27 February 1980, §§ 42-46, Series A no. 35; Eckle v. Germany, 15 July 1982, § 73, Series A no. 51; McFarlane v. Ireland [GC], no. 31333/06, § 143, 10 September 2010; and, more recently, Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08 and 3 others, § 249, ECHR 2016 ). 111. Thus, for example, a person arrested on suspicion of having committed a criminal offence (see, among other authorities, Heaney and McGuinness v. Ireland, no. 34720/97, § 42, ECHR 2000 ‑ XII, and Brusco v. France, no. 1466/07, §§ 47-50, 14 October 2010), a suspect questioned about his involvement in acts constituting a criminal offence (see Aleksandr Zaichenko v. Russia, no. 39660/02, §§ 41-43, 18 February 2010; Yankov and Others v. Bulgaria, no. 4570/05, § 23, 23 September 2010; and Ibrahim and Others, cited above, § 296) and a person who has been formally charged, under a procedure set out in domestic law, with a criminal offence (see, among many other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 66, ECHR 1999 ‑ II, and Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, § 44, ECHR 2004 ‑ XI) can all be regarded as being “charged with a criminal offence” and claim the protection of Article 6 of the Convention. It is the actual occurrence of the first of the aforementioned events, regardless of their chronological order, which triggers the application of Article 6 in its criminal aspect. (b) The right to legal assistance and the overall fairness of the criminal proceedings 112. The Court reiterates that the right of everyone charged with a criminal offence to be effectively defended by a lawyer, assigned officially if need be, as guaranteed by Article 6 § 3 (c), is one of the fundamental features of a fair trial (see Salduz, cited above, § 51, and Dvorski v. Croatia [GC], no. 25703/11, § 76, ECHR 2015). Prompt access to a lawyer constitutes an important counterweight to the vulnerability of suspects in police custody, provides a fundamental safeguard against coercion and ill-treatment of suspects by the police, and contributes to the prevention of miscarriages of justice and the fulfilment of the aims of Article 6, notably equality of arms between the investigating or prosecuting authorities and the accused (see Salduz, cited above, §§ 53 ‑ 54, and Ibrahim and Others, cited above, § 255). 113. Article 6 § 3 (c) does not therefore secure an autonomous right but must be read and interpreted in the light of the broader requirement of fairness of criminal proceedings, considered as a whole, as guaranteed by Article 6 § 1 of the Convention. In particular, compliance with the requirements of a fair trial must be examined in each case with regard to the development of the proceedings as a whole and not on the basis of an isolated consideration of one particular aspect or one particular incident, although it cannot be ruled out that a specific factor may be so decisive as to enable the fairness of the trial to be assessed at an earlier stage in the proceedings (see Ibrahim and Others, cited above, §§ 250 and 251). Article 6 § 3 (c) leaves to the Contracting States the choice of the means of ensuring that it is secured in their judicial system, the Court ’ s task being only to ascertain whether the method they have chosen is consistent with the requirements of a fair trial (see Salduz, cited above, § 51). 114. Like the other guarantees of Article 6, the right to legal assistance is applicable from the moment that a “criminal charge” exists within the meaning of this Court ’ s case-law (see paragraphs 110 and 111 above) and may therefore be relevant during pre-trial proceedings if and in so far as the fairness of the trial is likely to be seriously prejudiced by an initial failure to observe it (see Imbrioscia v. Switzerland, 24 November 1993, § 36, Series A no. 275; Dvorski, cited above, § 76; and Ibrahim and Others, cited above, § 253). ( c) Waiver of the right to legal assistance 115. The Court reiterates that neither the letter nor the spirit of Article 6 of the Convention prevents a person from waiving of his own free will, either expressly or tacitly, the entitlement to the guarantees of a fair trial. That also applies to the right to legal assistance (see, among other authorities, Dvorski, cited above, §§ 100 and 101, and Sakhnovskiy v. Russia [GC], no. 21272/03, § 90, 2 November 2010). However, if it is to be effective for Convention purposes, such a waiver must be established in an unequivocal manner and be attended by minimum safeguards commensurate to its importance. Such a waiver need not be explicit, but it must be voluntary and constitute a knowing and intelligent relinquishment of a right (see Pishchalnikov v. Russia, no. 7025/04, § 77, 24 September 2009, and paragraph 1 19 below). Before an accused can be said to have implicitly, through his conduct, waived an important right under Article 6, it must be shown that he could reasonably have foreseen what the consequences of his conduct would be ( Pishchalnikov, cited above, § 77 in fine). Moreover, the waiver must not run counter to any important public interest (see Håkansson and Sturesson v. Sweden, 21 February 1990, § 66, Series A no. 171-A, and Sejdovic v. Italy [GC], no. 56 581/00, § 86, ECHR 2006 ‑ II ). (d) Temporary restriction of the access to a lawyer for “compelling reasons” 116. The Court also reiterates that access to a lawyer during the investigation phase may be temporarily restricted where there are “compelling reasons” for doing so. In paragraph 55 of its Salduz judgment (cited above), the Court held as follows concerning the restriction of the access to a lawyer for “compelling reasons” during detention in police custody: “... the Court finds that in order for the right to a fair trial to remain sufficiently ‘ practical and effective ’ ... Article 6 § 1 requires that, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right. Even where compelling reasons may exceptionally justify denial of access to a lawyer, such restriction – whatever its justification – must not unduly prejudice the rights of the accused under Article 6 ... The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction .” 117. In its recent judgment in the case of Ibrahim and Others (cited above), the Court specified and fleshed out the criteria laid down in the Salduz judgment. It stated, in particular, that restrictions on access to legal advice were permitted only in exceptional circumstances, must be of a temporary nature and must be based on an individual assessment of the particular circumstances of the case. Where a respondent Government have convincingly demonstrated the existence of an urgent need to avert serious adverse consequences for life, liberty or physical integrity in a given case, this can amount to compelling reasons to restrict access to legal advice for the purposes of Article 6 of the Convention. In such circumstances, there is a pressing duty on the authorities to protect the rights of potential or actual victims under Articles 2 and 3 and Article 5 § 1 of the Convention in particular. When assessing whether compelling reasons have been demonstrated, it is important to ascertain whether the decision to restrict legal advice had a basis in domestic law and whether the scope and content of any restrictions on legal advice were sufficiently circumscribed by law so as to guide operational decision-making by those responsible for applying them ( ibid ., §§ 258 and 259). 118. The Court went on to point out that the absence of “compelling reasons” for restricting access to a lawyer did not lead in itself to a finding of a violation of Article 6 §§ 1 and 3 (c) of the Convention ( ibid ., § 262). In the absence of “compelling reasons”, the Court must apply a very strict scrutiny to its fairness assessment: the Government ’ s failure to point to any compelling reasons weighs heavily in the balance when assessing the overall fairness of the trial and may tip the balance in favour of finding a breach of Article 6 §§ 1 and 3 (c). The onus will then be on the Government to demonstrate convincingly why, exceptionally and in the specific circumstances of the case, the overall fairness of the trial was not irretrievably prejudiced by the restriction on access to legal advice ( ibid ., § 265). Where, on the contrary, compelling reasons for restricting access to a lawyer have been established, a holistic assessment of the entirety of the proceedings must be conducted to determine whether they were “fair” for the purposes of Article 6 § 1 ( ibid ., § 264). (e) The right to be informed of the right to legal assistance 119. In Ibrahim and Others ( ibid ., §§ 272- 2 73), the Court also found that it was inherent in the privilege against self-incrimination, the right to silence and the right to legal assistance that a person “charged with a criminal offence” for the purposes of Article 6 had the right to be notified of these rights. Consequently, Article 6 § 3 (c) of the Convention must be interpreted as also safeguarding the right of persons charged with an offence to be informed immediately of their right to legal assistance, irrespective of their age or specific situation and regardless of whether they are represented by an officially assigned lawyer or a lawyer of their own choosing. Moreover, respect for that right may well influence the validity of any waiver of the right to legal assistance (see paragraph 115 above). (f) Relevant factors for the assessment of the overall fairness of proceedings 120. Since the fairness of criminal proceedings is assessed in each case with regard to the conduct of the proceedings as a whole, the Court set out a non-exhaustive list in Ibrahim and Others, cited above, § 274, of factors to be taken into account, where appropriate, in order to assess the impact of procedural failings at the pre-trial stage on the overall fairness of the criminal proceedings. Those factors are as follows: (a) whether the applicant was particularly vulnerable, for example by reason of his age or mental capacity; (b) the legal framework governing the pre-trial proceedings and the admissibility of evidence at trial, and whether it was complied with; where an exclusionary rule applied, it is particularly unlikely that the proceedings as a whole would be considered unfair; (c) whether the applicant had the opportunity to challenge the authenticity of the evidence and oppose its use; (d) the quality of the evidence and whether the circumstances in which it was obtained cast doubt on its reliability or accuracy, taking into account the degree and nature of any compulsion; (e) where evidence was obtained unlawfully, the unlawfulness in question and, where it stems from a violation of another Convention Article, the nature of the violation found; (f) in the case of a statement, the nature of the statement and whether it was promptly retracted or modified; (g) the use to which the evidence was put, and in particular whether the evidence formed an integral or significant part of the probative evidence upon which the conviction was based, and the strength of the other evidence in the case; (h) whether the assessment of guilt was performed by professional judges or lay jurors, and in the case of the latter the content of any jury directions; (i) the weight of the public interest in the investigation and punishment of the particular offence in issue; and (j) other relevant procedural safeguards afforded by domestic law and practice. 2. Application of those principles to the instant case (a) Starting-point for the application of Article 6 in the present case 121. Turning to the facts of the present case, the Court observes that the applicant had been wanted by the investigating authorities and the police since the beginning of July 1999, when his arrest had been ordered on the grounds that he was suspected of having committed armed robbery and two murders and that he had been on the run for almost three months (see paragraph 13 above). The Court, however, considers that the date of the applicant ’ s arrest by the police on 3 October 1999 should be taken as the starting-point for the application of the safeguards set out in Article 6 of the Convention. The arrest was based on suspicions that the applicant had committed criminal offences, and substantially affected the applicant ’ s situation by enabling the authorities to conduct investigative measures in which he participated. It was therefore on 3 October 1999 that the right to legal assistance provided for in Article 6 § 3 (c) became applicable in the present case. (b) Whether the applicant waived his right to legal assistance 122. The Court notes that the lack of legal assistance for the applicant while in police custody was a limitation which did not follow from domestic law, since Bulgarian legislation authorised him to have access to a lawyer as of the time of his arrest, on 3 October 1999 (see paragraph 59 above). Thus, if the applicant had asked for leave to speak to a lawyer on 3, 4, 5 and 6 October 1999 (before 12 noon), the authorities would have been under a legal obligation to grant that request. 123. The parties disagree on whether the applicant requested contact with a lawyer (see paragraphs 97 and 102 above). There is nothing in the file to corroborate the applicant ’ s assertion that he submitted such a request. At the material time Bulgarian legislation did not yet require a detainee ’ s request to consult a lawyer or his waiver of that right to be recorded in writing (see paragraphs 60-62 above). 124. The Court reiterates that in order to assess this evidence, it adopts the standard of proof “beyond reasonable doubt”, but adds that such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see, among many other authorities, Ireland v. the United Kingdom, 18 January 1978, § 161 in fine, Series A no. 25). The Court finds it unfortunate that the applicant ’ s first three days of detention were not properly documented so as to avoid any doubts as to whether the applicant did ask for a lawyer or not (see, mutatis mutandis, Dvorski, cited above, § 105 in fine ). Consequently, several years on from the events at issue and in the absence of any prima facie evidence, the Court is not in a position to ascertain whether the applicant did in fact request a consultation with a lawyer. 125. The Court must nevertheless seek to establish whether in the particular circumstances of the case, the lack of objective evidence that the applicant requested legal assistance while in police custody might point to an implicit waiver of that right. 126. In that regard the Court observes that in a legal system such as that which was in force in Bulgaria at the material time, in which the assistance of a lawyer during detention in police custody requires an express request from the suspect, it is essential that the latter be promptly informed of that right so as to enable him to rely on it (see paragraph 119 above). This is especially important where, as in the present case, the accused is suspected of serious offences and is liable to a heavy penalty. It is in the face of the heaviest penalties that respect for the right to a fair trial must be ensured to the highest possible degree by democratic societies (see Salduz, cited above, § 54). That raises the question whether the applicant was duly informed of his right to legal assistance as of the time of his arrest, as domestic law in fact provided (see paragraph 59 above). 127. In their observations and at the hearing, the Government, with reference to the relevant provisions of domestic law requiring the authorities to inform persons charged with a criminal offence of their rights (see paragraph 101 above), submitted that the applicant had received that information just after his arrest. Yet the case file contains no written trace of such a measure and the Government have not supported their allegation with any further evidence. The Court can only note that the order for the applicant ’ s detention, which mentioned his right to legal assistance, had not been signed by him and that there is no evidence to show that he was issued with a copy of the order after his arrest (see paragraphs 13 and 14 above). It must therefore be assumed that he was never properly served with the order. As a result, the applicant was not verifiably informed of his procedural rights before the date on which he was charged, that is to say 6 October 1999 (see paragraph 21 above). 128. The Court reiterates that the receipt of such information by the accused person is one of the guarantees enabling him to exercise his defence rights and allowing the authorities to ensure, in particular, that any waiver by the accused of the right to legal assistance is voluntary, knowing and intelligent. That information therefore guarantees the effective possibility of exercising that right and – moreover – the validity of any waiver under the Convention (see paragraphs 115 and 119 above). Accordingly, even supposing that the applicant did not expressly request the assistance of a lawyer while in police custody, as provided in Bulgarian law at the material time, he cannot be deemed to have implicitly waived his right to legal assistance, since he had not promptly received such information after his arrest. His right to legal assistance was therefore restricted. (c) Whether there were “compelling reasons” to restrict access to a lawyer 129. The Court reiterates that restrictions on access to a lawyer for “compelling reasons” are permitted only in exceptional circumstances, must be of a temporary nature and must be based on an individual assessment of the particular circumstances of the case (see paragraph 117 above). 130. However, the Government mentioned no such exceptional circumstances, and it is not the Court ’ s task to assess of its own motion whether they existed in the present case. It therefore sees no “compelling reason” which could have justified restricting the applicant ’ s access to a lawyer while he was in police custody: there were no allegations of imminent danger to the lives, physical integrity or security of other persons (see, to converse effect, Ibrahim and Others, cited above, § 276). Furthermore, domestic legislation on access to a lawyer during detention in police custody did not explicitly lay down any exceptions to the application of that right (see paragraphs 59 and 64 above). It would appear that the events in the instant case correspond to a practice on the part of the authorities which has also been severely criticised by the CPT (see the CPT ’ s 2015 public statement, paragraph 80 above). 131. The Court observes in that connection that such a practice on the part of the authorities would be difficult to reconcile with the rule of law, which is expressly mentioned in the Preamble to the Convention and is inherent in all its Articles (see Stafford v. the United Kingdom [GC], no. 46295/99, §63, ECHR 2002-IV ). (d) Whether the overall fairness of the proceedings was ensured 132. The Court must seek to ascertain whether the absence of a lawyer while the applicant was in police custody had the effect of irretrievably prejudicing the overall fairness of the criminal proceedings against him. The lack of “compelling reasons” in the present case requires the Court to conduct a very strict scrutiny of the fairness of the proceedings. It is incumbent on the Government to demonstrate convincingly that the applicant nonetheless had a fair trial (see paragraph 118 above). 133. In that connection, the Government referred to the following circumstances: the applicant had not been formally questioned in the absence of a lawyer during his time in police custody; no statement that the applicant might have made during that time had been taken into account or subsequently used in evidence against him; his conduct while in police custody had not been taken into account by the prosecuting authorities or the relevant courts; he had at no stage complained to the authorities of having been forced to confess while in police custody; he had benefited from a wide range of procedural safeguards during criminal proceedings which had had all the attributes of a fair trial (see paragraph 103 above). 134. The Court notes that the parties disagree on whether the applicant was questioned in the absence of a lawyer over the period from 3 to 6 October 1999. Drawing on the absence of any document mentioning this point, the Government submitted that even supposing a conversation or interrogation had taken place while the applicant was in police custody, it would have been conducted informally and could not have had any impact on the course of the criminal proceedings (see paragraph 103 above). The applicant, for his part, stated before the Grand Chamber that he had been questioned and that it would have been illogical for the authorities to have missed such an opportunity to obtain further evidence (see paragraph 97 above). 135. The Court notes in that connection that the version of events set out by the applicant during the proceedings before it has changed as the case had unfolded. In his application to the Court the applicant was very vague on this subject. It was not until he submitted his memorial before the Grand Chamber that he provided a number of more specific details, affirming, for example, that he had made statements while in police custody, and disclosing the content of those statements and the name of the lawyer whom he had asked to contact. The Court also observes that the applicant did not mention his lack of legal assistance while in police custody in the proceedings before the Burgas Court of Appeal (see paragraph 34 above) and that his appeal on points of law referred only marginally to the absence of a lawyer on 4 October 1999 in the context of a separate plea relating to the exclusion of evidence obtained in the presence of his officially assigned lawyer (see paragraph 42 above). Moreover, whereas the handwritten statement of his presumed accomplice, A.S., dated 3 October 1999, was included in the case file (see paragraph 20 above), there is no prima facie evidence for the Court to conclude that the applicant was formally or informally questioned while in police custody. 136. Be that as it may, the Court attaches decisive importance to the fact that during that period of about three days no evidence capable of being used against the applicant was obtained and included in the case file. No statement was taken from the applicant. No evidence in the file indicates that the applicant was involved in any other investigative measures over that period, such as an identification parade or biological sampling. Furthermore, the applicant did not personally allege before the Court that the domestic courts had possessed evidence presented during that period and used it at the trial in order to secure his conviction. 137. It should be emphasised here that the domestic law and the domestic courts ’ case-law provided for the exclusion of evidence obtained in a manner incompatible with the rules of the Code of Criminal Procedure (see paragraph 68 above). In the applicant ’ s case, because he was liable to a life sentence, legal assistance during questioning was also a sine qua non for the admissibility in evidence at the trial of any statement on his part (see paragraph 65 above). 138. In addition, unlike in the cases of John Murray v. the United Kingdom (8 February 1996, Reports of Judgments and Decisions 1996 ‑ I) and Averill v. the United Kingdom (no. 36408/97, ECHR 2000 ‑ VI) the failure of the accused to make any statement would have had no impact on the ensuing stages of the criminal proceedings. The applicant could even have benefited from remaining silent if he had not opted to confess at a subsequent stage in the proceedings, when he had already secured the assistance of a lawyer of his choosing. 139. On 21 October 1999, two weeks after he had been formally charged, the applicant voluntarily confessed (see paragraphs 21 and 24 above). In assessing the voluntary nature of that confession, the Court has regard to the fact that the applicant had already been questioned on two occasions, on 6 and 12 October 1999, with the assistance of a lawyer, and that he had remained silent on both those occasions (see paragraphs 21 and 23 above). During both these interrogations, and when he confessed on 21 October 1999, he had already been informed of his procedural rights, particularly the right not to incriminate himself (see paragraph 21 above). At that time, moreover, he was in receipt of the advice and assistance of a lawyer of his choosing (see paragraphs 23 and 24 above). 140. It is not disputed that only the confession made by the applicant on 21 October 1999 was used in order to convict him. No causal link was ever posited, either before the domestic courts or before the Court, between the absence of a lawyer from 3 to 6 October 1999 and the applicant ’ s confession two weeks after the end of that period in the presence of a lawyer of his choosing (see, mutatis mutandis, Gäfgen v. Germany [GC], no. 22978/05, § 180, ECHR 2010). Consequently, the absence of a lawyer during the applicant ’ s time in police custody in no way prejudiced his right not to incriminate himself. 141. The Court further notes that the applicant actively participated at all stages in the criminal proceedings: he subsequently retracted his initial statements, presenting a different version of events, and his defence lawyers obtained exculpatory evidence and contested the incriminating evidence (see paragraphs 27, 29, 31, 35 and 42 above). 142. Moreover, the applicant ’ s conviction was not based exclusively on his confession of 21 October 1999, which he made in the presence of the lawyer of his choosing, but on a whole body of consistent evidence, including the statements of a large number of witnesses who had been questioned during the assessment of the case, the results of ballistic, technical and accountants ’ reports and medical and psychiatric opinions, and also on the physical and documentary evidence gathered (see paragraphs 26, 33, 36-41 and 43 above). 143. The case was examined at three levels of jurisdiction, by a regional court, a court of appeal and the Supreme Court of Cassation. All these courts gave due consideration to the evidence available, including the statements of the many witnesses questioned during the assessment of the case, the results of the ballistic, technical and accountants ’ reports and the medical and psychiatric opinions, as well as the physical and documentary evidence gathered. Their decisions, which were properly reasoned in factual and legal terms, also duly assessed whether the applicant ’ s procedural rights had been respected (see paragraphs 31-44 above). 144. In the light of these findings, the Court considers that the Government provided relevant and sufficient evidence to demonstrate that the overall fairness of the criminal proceedings against the applicant had not been irretrievably prejudiced by the absence of legal assistance while he had been in police custody, from 3 to 6 October 1999. (e) Conclusion 145. In conclusion, there has been no violation of Article 6 §§ 1 and 3 (c) of the Convention. IV. APPLICATION OF ARTICLE 46 OF THE CONVENTION 146. The applicant invited the Court to indicate to the Government, as it had done in the case of Harakchiev and Tolumov (cited above, § 280), measures for the execution of a finding of violation of Article 3 of the Convention owing to the material conditions of detention and the regime applicable to life prisoners. 147. The Government did not state a position on that matter. 148. The relevant part of Article 46 of the Convention reads as follows: “1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties. 2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution ...” 149. Under Article 46 the Contracting Parties have undertaken to abide by the final judgments of the Court in cases to which they are parties, execution being supervised by the Committee of Ministers. It follows, inter alia, that a judgment in which the Court finds a violation of the Convention or the Protocols thereto imposes on the respondent State the legal obligation not just to pay those concerned the sums awarded by way of just satisfaction pursuant to Article 41 of the Convention but also to choose, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures which it considers appropriate to incorporate into domestic law in order to put an end to the violation found by the Court and to redress as far as possible the effects. It is primarily for the State concerned to choose, subject to supervision by the Committee of Ministers, the means to be used under its domestic law to comply with that obligation. However, with a view to helping the respondent State in that task, the Court may seek to indicate the type of individual and/or general measures that might be taken in order to put an end to the situation it has found to exist (see, among other authorities, Stanev v. Bulgaria [GC], no. 36760/06, §§ 254- 2 55, ECHR 2012). 150. The Court reiterates that it set out the following recommendations in its Harakchiev and Tolumov judgment (cited above, § 280): “The breach of Article 3 of the Convention found in the present case in relation to the regime and conditions of the applicants ’ detention flows in large part from the relevant provisions of the 2009 Execution of Punishments and Pre-Trial Detention Act and its implementing regulations ... It discloses a systemic problem that has already given rise to similar applications (see Chervenkov [v. Bulgaria, no. 45358/04], §§ 50 and 69-70[, 27 November 2012], and Sabev [v. Bulgaria, no. 27887/06], §§ 72 and 98 ‑ 99[, 28 May 2013]), and may give rise to more such applications. The nature of the breach suggests that to execute this judgment properly, the respondent State would be required to reform, preferably by means of legislation, the legal framework governing the prison regime applicable to persons sentenced to life imprisonment with or without parole. That reform, invariably recommended by the CPT since 1999 ..., should entail (a) removing the automatic application of the highly restrictive prison regime currently applicable to all life prisoners for an initial period of at least five years, and (b) putting in place provisions envisaging that a special security regime can only be imposed – and maintained – on the basis of an individual risk assessment of each life prisoner, and applied for no longer than strictly necessary.” 151. The Court observes that in the present case it found a violation of Article 3 of the Convention on account of the applicant ’ s conditions of detention taken in conjunction with his restrictive prison regime and the length of his period of imprisonment (see paragraphs 9 0 and 9 1 above). Those circumstances, as well as the applicable domestic legislation, are identical to those which led the Court to find a violation of Article 3 on account of the material conditions of detention and the prison regime in the Harakchiev and Tolumov judgment, cited above. It therefore considers it appropriate to reiterate the recommendations which it set out in paragraph 280 of that judgment concerning: (a) removing the automatic application of the special prison regime to life prisoners, and (b) putting in place provisions permitting the imposition of that regime on the basis of an individual risk assessment. V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 152. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 153. The applicant clamed 10,00 0 euros (EUR) in respect of non ‑ pecuniary damage sustained owing to his prison regime and his conditions of detention. 154. The Government made no observations before the Grand Chamber on that matter. 155. In its judgment of 20 October 2015 the Chamber awarded the applicant EUR 8,000 under this head. 156. The Court considers that the applicant sustained non-pecuniary damage owing to the poor conditions to which he was exposed in the custodial facilities in which he was held and the restrictive prison regime to which he was subject. Like the Chamber, the Court considers that he should be awarded EUR 8,000 under this head. B. Costs and expenses 157. The applicant claimed EUR 2,160 in respect of lawyer ’ s fees and 767 Bulgarian levs (BGN) in respect of the other costs and expenses incurred during the proceedings before the Chamber, as well as EUR 6,420 in respect of lawyer ’ s fees, EUR 927.27 in respect of travel expenses and BGN 1,929 in respect of other costs and expenses incurred during the proceedings before the Grand Chamber. 158. The Government made no observations on that point. 159. In its judgment the Chamber awarded the applicant EUR 2,589.50 in respect of costs and expenses. 160. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and to its case-law, the Court considers the sum of EUR 8,000 reasonable in respect of all the expenses incurred during the proceedings before the Chamber and the Grand Chamber, less EUR 2,952.52 received from the Council of Europe in respect of legal aid, and awards that sum to the applicant. C. Default interest 161. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Grand Chamber held that there had been no violation of Article 6 §§ 1 and 3 (c) (right to a fair trial and right to legal assistance) of the Convention, finding that the Bulgarian Government had presented relevant and sufficient evidence to demonstrate that they had not irremediably infringed the fairness of the criminal proceedings taken as a whole on account of the lack of legal assistance during the first three days of the applicant’s police custody. In particular, the Court noted that no evidence capable of being used against the applicant had been obtained and included in the criminal file during that period; that the applicant, assisted by a lawyer of his own choosing, had voluntarily confessed two weeks after being charged, when he had been informed of his procedural rights, including the privilege against self-incrimination; that the applicant had actively participated in all stages of the criminal proceedings; that his conviction had not been based solely on his confession but also on a whole body of consistent evidence; that the case had been assessed at three judicial levels and that the domestic courts had provided adequate reasons for their decisions in both factual and legal terms and had properly examined the issue of respect for procedural rights. |
715 | Right to strike | II. RELEVANT DOMESTIC LAW AND PRACTICE 22. The following provisions of French law need to be set out: A. General provisions 1. The Criminal Code 23. Article 226, first paragraph "Anyone who by his acts or by means of the written or spoken word has publicly attempted to bring discredit on any action or decision taken by a court, in a manner likely to impair the authority or independence of the judiciary, shall be liable to imprisonment for not less than one month and not more than six months and a fine of not less than 500 francs and not more than 90,000 francs or to only one of these two penalties." 2. The Code of Criminal Procedure 24. Article 105 "An investigating judge in charge of an investigation and judges and senior police officers ( officiers de police judiciaire ) acting on judicial warrants shall not, with the intention of preventing the exercise of the rights of the defence, examine as witnesses persons against whom there is substantial, consistent evidence of guilt." Article 109 "Anyone summoned to be examined as a witness shall be required to appear, to take the oath and to give evidence, subject to the provisions of Article 378 of the Criminal Code [duty of professional confidentiality]. If a witness fails to appear, the investigating judge may, on an application by the public prosecutor, have the witness brought before him by the police and impose on him a fine of not less than 2,500 francs and not more than 5,000 francs. If the witness subsequently appears, however, he may, if he apologises and provides an explanation, be excused this penalty by the investigating judge, after the public prosecutor has made submissions. The same penalty may, on an application by the prosecutor, be imposed on a witness who, although he has appeared, refuses to take the oath and to give evidence. ... ." B. Provisions relating specifically to avocats 1. The Decree of 9 June 1972 "regulating the profession of avocat, implementing the Act of 31 December 1971 reforming certain court and legal professions" 25. Article 89 "An avocat must not, in any matter, make any disclosure in breach of professional confidentiality. He must, in particular,respect the confidentiality of judicial investigations in criminal matters by refraining from communicating any information from the file and from publishing letters or other documents concerning a current investigation." Article 104 "The Bar Council sitting as a disciplinary board shall proceed against and punish offences and misconduct by an avocat or a former avocat where at the material time he was entered on a Bar roll, list of trainees or list of honorary avocats." Article 106 "Any contravention of statutes or regulations, infringement of professional rules or breach of integrity, honour or discretion, even relating to non-professional matters, shall render the avocat responsible liable to the disciplinary sanctions listed in Article 107." Article 107 "The disciplinary penalties shall be: A warning; A reprimand; Suspension for a period not exceeding three years; Striking off the roll of avocats or list of trainees or withdrawal of honorary status. A warning, a reprimand and suspension may, if so provided in the decision in which the disciplinary penalty is imposed, entail loss of membership of the Bar Council for a period not exceeding ten years. The Bar Council may further order, as an ancillary penalty, that any disciplinary penalty shall be publicly displayed on the Bar ’ s premises." Article 113 "The Chairman of the Bar, either on his own initiative or on an application from the Principal Public Prosecutor or on a complaint by any party affected, shall inquire into the conduct of the avocat concerned. He shall then either discontinue the proceedings or refer the matter to the Bar Council. If he has received a complaint, he shall inform the complainant. If the facts were reported to him by the Principal Public Prosecutor, he shall notify the latter. ... ." 2. The Act of 15 June 1982 "on the procedure applicable in the event of professional misconduct by an avocat at a court hearing" 26. Avocats are bound by the oath they take when entering upon their duties. The wording of the oath is given in section 1 of the Act of 15 June 1982 : "I swear, as an avocat, to defend and counsel in a dignified, conscientious, independent and humane manner." Before that Act came into force, the oath was worded as follows: "I swear, as an avocat, to defend and counsel in a dignified, conscientious, independent and humane manner, with respect for the courts, the public authorities and the rules of the Bar, and neither to say nor to publish anything contrary to statute, regulations, morals, the security of the State, or public order." (Article 23 of the Decree of 9 June 1972) An avocat who took the oath before the Act of 15 June 1982 came into force is deemed to have taken it in its current form. 27. In a judgment of 9 June 1964 the Court of Cassation (First Civil Division) held that the avocat ’ s oath "also [bound] him in all circumstances not to deviate from the respect due to the courts and to the public authorities; ...". ( Juris-Classeur périodique 1964, II, no. 13797, note by J.A.) Moreover, in a judgment of 30 June 1965 (Criminal Division, Bouvier ) the Court of Cassation held that an avocat, while being entitled to protest at any infringement of the rights of the defence, must refrain from any expression which would reflect on the honour or discretion of a judge. PROCEEDINGS BEFORE THE COMMISSION 28. In his application of 16 October 1985 to the Commission (no. 11800/85), Mr Ezelin relied on Articles 10 and 11 (art. 10, art. 11) of the Convention. He submitted that the disciplinary sanction imposed on him seriously interfered with his freedom of expression and of peaceful assembly. 29. The Commission declared the application admissible on 13 March 1989. In its report of 14 December 1989 (made under Article 31) (art. 31) it expressed the opinion that there had been a breach of Article 11 (art. 11) (by fifteen votes to six) and that no separate issue arose under Article 10 (art. 10) (unanimously). The full text of the Commission ’ s opinion and of the dissenting opinion contained in the report is reproduced as an annex to this judgment [*]. FINAL SUBMISSIONS TO THE COURT 30. At the hearing on 20 November 1990 the Agent of the Government maintained the submissions made in his memorial. In those the Court was asked to hold that there had been no violation of Article 11 (art. 11) and to endorse the Commission ’ s view that no separate issue arose under Article 10 (art. 10). Counsel for the applicant asked the Court to find that there had been a breach of freedom of expression and of freedom of peaceful assembly guaranteed in Articles 10 and 11 (art. 10, art. 11) and to award his client the compensation sought. AS TO THE LAW 31. The applicant considered that the disciplinary sanction imposed on him by the Basse-Terre Court of Appeal was incompatible with his freedom of expression and his freedom of peaceful assembly, which were protected by Articles 10 and 11 (art. 10, art. 11) of the Convention. 32. The Government pointed out that this sanction was also designed to punish Mr Ezelin for his refusal to give evidence to the investigating judge. They criticised the Commission for suggesting that the only matter in issue was the applicant ’ s participation in the demonstration. 33. The applicant was in fact punished for having neither shown his disapproval of the "demonstrators ’ offensive and insulting acts" nor left the procession in order to dissociate himself from them and also for having refused to give evidence although he had not invoked Article 105 of the Code of Criminal Procedure or professional confidentiality (see paragraphs 20 and 21 above). Nevertheless, he was summoned before the investigating judge as a result of having taken part in the demonstration. That being so, the question of the refusal to give evidence - an issue which in itself does not come within the ambit of Articles 10 and 11 (art. 10, art. 11) - is a secondary one. It may be noted, moreover, that Mr Ezelin did not remain totally silent in the presence of the investigating judge: he stated that he had nothing to say on the matter, and the judge did not see fit to use his power under Article 109, third paragraph, of the Code of Criminal Procedure (see paragraphs 15, 20 and 21 above). I. ALLEGED VIOLATION OF ARTICLE 10 (art. 10) 34. The applicant based one of his submissions on Article 10 (art. 10), which provides: "1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. ... 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary." 35. In the circumstances of the case, this provision is to be regarded as a lex generalis in relation to Article 11 (art. 11), a lex specialis, so that it is unnecessary to take it into consideration separately. On this point the Court agrees with the Commission. II. ALLEGED VIOLATION OF ARTICLE 11 (art. 11) 36. The main question in issue concerns Article 11 (art. 11), which provides: "1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests. 2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. ..." 37. Notwithstanding its autonomous role and particular sphere of application, Article 11 (art. 11) must, in the present case, also be considered in the light of Article 10 (art. 10) (see the Young, James and Webster judgment of 13 August 1981, Series A no. 44, p. 23, § 57). The protection of personal opinions, secured by Article 10 (art. 10), is one of the objectives of freedom of peaceful assembly as enshrined in Article 11 (art. 11). A. Whether there was an interference with the exercise of the freedom of peaceful assembly 38. In the Government ’ s submission, Mr Ezelin had not suffered any interference with the exercise of his freedom of peaceful assembly and freedom of expression: he had been able to take part in the procession of 12 February 1983 unhindered and to express his convictions publicly, in his professional capacity and as he wished; he was reprimanded only after the event and on account of personal conduct deemed to be inconsistent with the obligations of his profession. 39. The Court does not accept this submission. The term "restrictions" in paragraph 2 of Article 11 (art. 11-2) - and of Article 10 (art. 10-2) - cannot be interpreted as not including measures - such as punitive measures - taken not before or during but after a meeting (cf. in particular, as regards Article 10 (art. 10), the Handyside judgment of 7 December 1976, Series A no. 24, p. 21, § 43, and the Müller and Others judgment of 24 May 1988, Series A no. 133, p. 19, § 28). 40. In the second place, the Government maintained that despite the peaceful nature of Mr Ezelin ’ s own intentions and behaviour, the sanction of which he complained had in no way infringed his freedom of peaceful assembly seeing that the demonstration had got out of hand. In the Commission ’ s opinion, no intentions that were not peaceful could be imputed to the applicant. 41. The Court points out that prior notice had been given of the demonstration in question and that it was not prohibited. In joining it, the applicant availed himself of his freedom of peaceful assembly. Moreover, neither the report made by the Chief Superintendent of the Basse-Terre police nor any other evidence shows that Mr Ezelin himself made threats or daubed graffiti. The Court of Appeal found the charge of not having "dissociate[d] himself from the demonstrators ’ offensive and insulting acts or [left] the procession" (see paragraph 20 above) proven. The Court of Cassation noted that at no time did he "express his disapproval of these excesses or leave the procession in order to dissociate himself from these criminal acts" (see paragraph 21 above). The Court accordingly finds that there was in this instance an interference with the exercise of the applicant ’ s freedom of peaceful assembly. B. Whether the interference was justified 42. It must therefore be determined whether the sanction complained of was "prescribed by law", prompted by one or more of the legitimate aims set out in paragraph 2 and "necessary in a democratic society" for achieving them. 1. "Prescribed by law" 43. The applicant submitted that Article 106 of the Decree of 9 June 1972 was in no way intended to restrict the right of assembly of avocats; moreover, the general nature of the words "breach of ... discretion" made it impossible to define a breach in advance and allowed of any sanction after the event. 44. The Government considered, on the contrary, that this provision required avocats, who were "officers of the court" (auxiliaires de la justice), to respect a number of professional principles of a legal and ethical nature. The provision was sufficiently precise where, as in the instant case, the conduct being punished was contrary to the rules of the profession. 45. According to the Court ’ s case-law, a norm cannot be regarded as a "law" unless it is formulated with sufficient precision to enable the citizen - if need be, with appropriate advice - to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail (see, among other authorities, the Müller and Others judgment previously cited, Series A no. 133, p. 20, § 29). Experience shows, however, that it is impossible to attain absolute precision in the framing of laws, particularly in fields in which the situation changes according to the prevailing views of society (ibid.). In the instant case the legal basis of the sanction complained of lay solely in the special rules governing the profession of avocat. Article 106 of the relevant Decree of 9 June 1972 provides unequivocally that any avocat, even in his non-professional activities, has special obligations (see paragraph 25 above); and the Court of Cassation has held that these include the respect due to the judicial authorities (see paragraph 27 above). That being so, the interference was "prescribed by law". 2. Legitimate aim 46. The applicant claimed that the sanction was not in pursuit of a legitimate aim; it resulted in his being prevented from expressing his ideas and his trade-union demands. The Government, on the other hand, submitted that its purpose was the "prevention of disorder". 47. It is apparent from the evidence that Mr Ezelin incurred the punishment because he had not dissociated himself from the unruly incidents which occurred during the demonstration. As the Commission noted, the authorities took the view that such an attitude was a reflection of the fact that the applicant, as an avocat, endorsed and actively supported such excesses. The interference was therefore in pursuit of a legitimate aim, the "prevention of disorder". 3. Necessity in a democratic society 48. In the applicant ’ s submission, the interference of which he was complaining was not "necessary in a democratic society". To claim that he should have left the procession in order to express his disapproval of acts committed by other demonstrators was, he said, to deny his right to freedom of peaceful assembly. 49. The Government, on the other hand, submitted that the disputed measure did indeed answer a "pressing social need", having regard in particular to Mr Ezelin ’ s position as an avocat and to the local background. By not disavowing the unruly incidents that had occurred during the demonstration, the applicant had ipso facto approved them. Furthermore, they claimed, it was essential for judicial institutions to react to behaviour which, on the part of an "officer of the court" ( auxiliaire de la justice), seriously impaired the authority of the judiciary and respect for court decisions. Lastly, the gravity of the two breaches of professional duty of which the applicant was accused justified the sanction imposed on him, which was a light, token sentence that did not offend against the proportionality principle laid down in the Court ’ s case-law. 50. The Commission contended that a disciplinary penalty based on an impression to which Mr Ezelin ’ s behaviour might give rise was not compatible with the strict requirement of a "pressing social need" and therefore could not be regarded as "necessary in a democratic society". 51. The Court has examined the disciplinary sanction in question in the light of the case as a whole in order to determine in particular whether it was proportionate to the legitimate aim pursued, having regard to the special importance of freedom of peaceful assembly and freedom of expression, which are closely linked in this instance. 52. The proportionality principle demands that a balance be struck between the requirements of the purposes listed in Article 11 § 2 (art. 11-2) and those of the free expression of opinions by word, gesture or even silence by persons assembled on the streets or in other public places. The pursuit of a just balance must not result in avocats being discouraged, for fear of disciplinary sanctions, from making clear their beliefs on such occasions. 53. Admittedly, the penalty imposed on Mr Ezelin was at the lower end of the scale of disciplinary penalties given in Article 107 of the Decree of 9 June 1972 (see paragraph 25 above); it had mainly moral force, since it did not entail any ban, even a temporary one, on practising the profession or on sitting as a member of the Bar Council. The Court considers, however, that the freedom to take part in a peaceful assembly - in this instance a demonstration that had not been prohibited - is of such importance that it cannot be restricted in any way, even for an avocat, so long as the person concerned does not himself commit any reprehensible act on such an occasion. In short, the sanction complained of, however minimal, does not appear to have been "necessary in a democratic society". It accordingly contravened Article 11 (art. 11). III. APPLICATION OF ARTICLE 50 (art. 50) 54. Article 50 (art. 50) provides: "If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party." The applicant sought compensation for damage and reimbursement of expenses under this provision. A. Damage 55. Mr Ezelin claimed compensation in the amount of 25,000 French francs (FRF) for non-pecuniary damage, on the ground that publication of the sanction complained of in legal journals and the local publicity which ensued had harmed his reputation and interests. 56. The Government left the matter to the Court ’ s discretion in the event of the Court ’ s finding that damage had indeed been sustained. The Delegate of the Commission submitted that compensation should be awarded, but did not suggest any figure. 57. In the circumstances of the case the finding that there has been a breach of Article 11 (art. 11) affords Mr Ezelin sufficient just satisfaction for the damage alleged. B. Costs and expenses 58. The applicant also claimed reimbursement of FRF 40,000 in respect of fees, costs and expenses incurred in the Court of Cassation (FRF 15,000) and in the proceedings before the Convention institutions (Commission: FRF 10,000; Court: FRF 15,000). No observations were made by the Government or the Delegate of the Commission. 59. On the basis of the information in its possession and its case-law on the subject, the Court, making an assessment on an equitable basis, allows the applicant ’ s claim in full. | Violation of Article 11 of the Convention: Although the penalty had mainly moral force, the Court considered that “the freedom to take part in a peaceful assembly – in this instance a demonstration that had not been prohibited - is of such importance that it cannot be restricted in any way, even for an avocat, so long as the person concerned does not himself commit any reprehensible act on such an occasion.” |
538 | Police brutality | II. RELEVANT DOMESTIC LAW 43. The relevant provisions of the Code of Criminal Procedure and of the police and military prosecutor Ruler are set out in Dumitru Popescu v. Romania ( (no. 1), no. 49234/99, § § 43-46, 26 April 2007 ) and Barbu Anghelescu v. Romania ( no. 46430/99, § 40, 5 October 2004 ). 44. The relevant provisions of the Criminal and Civil Codes concerning the means of obtaining compensation for alleged ill-treatment are set out in Kalanyos and Others v. Romania ((dec.), no. 57884/00, 19 May 2005 ). 45. In the same decision, as well as in paragraphs 43-45 of the judgment in Dumitru Popescu (no. 1), cited above there is a description of the development of the law concerning complaints against decisions of the prosecutor (Article 278 of the Code of Criminal Procedure and Article 278 1 introduced by Law no. 281/24 June 2003 applicable from 1 January 2004 ). THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 46. The applicant complained of the ill-treatment allegedly inflicted on him on 3 April 2001 by the police and considered that the ensuing criminal investigation had not been effective. He relied on Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Admissibility 47. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ submissions 48. The Government did not contest the applicant ’ s injuries but contended that, based on the conclusion of the domestic investigations, the alleged violence had not been committed by the officials, in so far as neither the identity of the perpetrators nor the exact date on which the violence had been committed could be established with certainty. 49. Citing Klaas v. Germany ( judgment of 22 September 1993, Series A no. 269, p. 17, § 29 in fine ); and Ribitsch v. Austria (judgment of 4 December 1995, Series A no. 336, p. 24, § 32), the Government argued that it was not normally within the province of the Court to substitute its own assessment of the facts for that of the domestic courts and, as a general rule, it was for those courts to assess the evidence before them. 50. In the Government ’ s opinion the prosecutor had been right to disregard the statements of eyewitnesses in support of the applicant as they were evidently biased and less credible. They also pointed out the contradictions between the witnesses ’ statements and those of the applicant. 51. Furthermore, the Government considered that the investigation carried out by the authorities had been adequate and effective. They pointed out that the prosecutors had heard testimony from the parties and witnesses, that the applicant had been examined by a doctor and that the facts had been carefully weighed. The Bacau Military Prosecutor ’ s decision had been re ‑ examined and confirmed by the Military Prosecutor attached to the Supreme Court of Justice. They based their argument on the case Velikova v. Bulgaria ( no. 41488/98, § 80, ECHR 2000 ‑ VI ). 52. Moreover, the Government noted that there had been no hierarchical or institutional link between the accused police officers, all from the Dolhasca Police, and the investigators, all from the Suceava Police, and contended that the mere fact that both the prosecutor and the accused persons were part of the military forces could not in itself prove the lack of impartiality and independence of the investigators (see Bursuc v. Romania, no. 42066/98, §§ 1 03, 12 October 2004 ). 53. The applicant considered that the investigation files contained sufficient elements to conclude that the violence had been inflicted by the police. In his view, the decision to set aside the eyewitnesses ’ statements was unfounded. In any case, the authorities had failed to provide a credible alternative explanation as to the origin of his injuries. In his opinion the following elements should be taken into account as aggravating factors in the assessment of the seriousness of the ill-treatment he had been subjected to: he was 14 years old at the time; he was severely ill; in his particular condition the attack had made him seriously fear for his life; and he was of Roma origin ( in the context of the organised harassment of Roma by the Romanian authorities ). He also pointed out that the authorities had acted late at night and that the use of force had been neither necessary nor proportionate in the circumstances. 54. In so far as the investigations carried out were concerned, the applicant submitted that they had failed to comply with the standards set out by the Court in the case of Assenov and Others, and that they had taken too long (see Assenov and Others v. Bulgaria, judgment of 28 October 1998, Reports of Judgments and Decisions 1998-VIII). 55. In his view, the Suceava Police could not have been impartial in their investigation as they were the hierarchical superior of the Dolhasca Police. Furthermore, he doubted the impartiality of the military prosecutor. 56. The applicant reiterated that in the decision of 2 October 2001 the Bacau Military Prosecutor had merely summarised the police officers ’ statements, which were sometimes identical to the last word, and had disregarded, without plausible reason, the eyewitnesses ’ statements. He also argued that only a few of the Roma present had been asked to testify and that some of them had been intimidated by the police and prevented from giving testimony. 57. Lastly, the applicant noted that although the police officers had declared that they had been attacked by Roma armed with bats, no official investigation into the allegations had been opened. He concluded that these statements had merely been an attempt to justify the police actions. 2. The Court ’ s assessment 58. The Court notes from the outset that it is common ground that the applicant suffered injuries on or around the date of the incidents. However, the parties disagreed on whether or not the injuries were caused by police officers. 59. The Court reiterates that Article 3 enshrines one of the fundamental values of democratic society. Even in the most difficult of circumstances, such as the fight against terrorism or crime, the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment. Unlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4, Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15 of the Convention even in the event of a public emergency threatening the life of the nation (see Assenov and Others, cited above, p. 3288, § 93 ). 60. Ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim (see Ireland v. the United Kingdom, judgment of 18 January 1978, Series A no. 25, p. 65, § 162; Kudła v. Poland [GC], no. 30210/96, § 91, ECHR 2000-XI; and Peers v. Greece, no. 28524/95, § 67, ECHR 2001-III). The Court has considered treatment to be “inhuman” because, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical and mental suffering. It has deemed treatment to be “degrading” because it was such as to arouse in the victims feelings of fear, anguish and inferiority capable of humiliating and debasing them (see Kudła, cited above, § 92). 61. In considering whether a particular form of treatment is “degrading” within the meaning of Article 3, the Court will have regard to whether its object is to humiliate and debase the person concerned and whether, as far as the consequences are concerned, it adversely affected his or her personality in a manner incompatible with Article 3 (see Raninen v. Finland, judgment of 16 December 1997, Reports 1997-VIII, pp. 2821, § 55). However, the absence of any such purpose cannot conclusively rule out a finding of a violation of Article 3 (see Peers, cited above, § 74). The suffering and humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment. 62. The Court considers that the degree of bruising found by the doctor who examined the applicant ( see paragraph 13 above ) indicates that the latter ’ s injuries, whether caused by the police or by someone else, were sufficiently serious to amount to ill-treatment within the scope of Article 3 (see, for example, A. v. the United Kingdom, judgment of 23 September 1998, Reports 1998-VI, p. 2699, § 21, and Ribitsch, cited above, pp. 9 and 26, §§ 13 and 39). It remains to be considered whether the State should be held responsible under Article 3 in respect of these injuries. 63. The Court reiterates its jurisprudence confirming the standard of proof “beyond reasonable doubt” in its assessment of evidence (see Avşar v. Turkey, no. 25657/94, § 282, ECHR 2001). Such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. 64. The Court is sensitive to the subsidiary nature of its role and recognises that it must be cautious in taking on the role of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case (see, for example, McKerr v. the United Kingdom (dec.), no. 28883/95, 4 April 2000). Nonetheless, where allegations are made under Article 3 of the Convention the Court must apply a particularly thorough scrutiny (see Cobzaru v. Romania, no. 48254/99, § 65, 26 July 2007 ) even if certain domestic proceedings and investigations have already taken place. 65. In the present case the Court notes that the applicant was admitted to the hospital soon after the events and that the medical report indicated the injuries sustained. The applicant filed a criminal complaint against police officers who he accused of having beaten him. His declarations are coherent and supported by the medical report and some witness testimonies. It is, nonetheless, true that the witnesses gave conflicting testimonies; all the officials and some of the passers-by denied that any violence had occurred while all the villagers stated that it had. Lastly, the criminal investigation conducted in the case concluded that the officers were not responsible for the injuries. 66. There had been no official admission of any act of violence against the applicant. 67. However, the Court reiterates that where an individual raises an arguable claim that he has been seriously ill-treated by the police or other such agents of the State unlawfully and in breach of Article 3, that provision, read in conjunction with the State ’ s general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in ... [the] Convention”, requires by implication that there should be an effective official investigation. This investigation, as with that under Article 2, should be capable of leading to the identification and punishment of those responsible. If this were not the case, the general legal prohibition of torture and inhuman and degrading treatment and punishment, despite its fundamental importance, would be ineffective in practice and it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity (see Assenov and Others, cited above, § 102). 68. The Court notes that a criminal investigation was carried out in the case. It remains to be assessed whether it was effective, as required by Article 3. 69. From the outset, the Court notes that the investigations lasted for one year, and considers that this length is not in itself problematic (see paragraph 54 above ). 70. As to the effectiveness of the investigations, the Court notes the following. 71. Although twenty to thirty villagers were present during the incidents, only three testified before the Suceava Police and five testified before the military prosecutor. All police officers and public guards present gave evidence. 72. There is no explanation as to why the other villagers did not testify during the investigation. They were either not called to testify, or, as the applicant claims, they were intimidated by the police. Either way, the fact that they did not give testimony casts doubt as to how thoroughly the police investigated the case. 73. The Court is also concerned about the way the villagers ’ statements were discarded by the military prosecutor. Firstly, according to the Government ( see paragraph 5 0 above ) the prosecutor was right to discard those statements as they were evidently biased and less credible. However, the Court cannot but notice that the prosecutor did not explain why the villagers ’ statements would be less credible than those of the police officers, as all participants could be considered equally biased due to their opposing positions in the proceedings (alleged victims against alleged perpetrators). 74. Moreover, the prosecutor ’ s conclusion that those villagers had not been present during the incident is contradicted by the evidence in the case, including these persons ’ statements before the same prosecutor. 75. The Court also considers that the alleged contradictions between the applicant ’ s statements and those of the witnesses were not adequately examined by the prosecutor, who only noted, briefly, the differences concerning the applicant being allegedly beaten over the head. He failed to address the common points of the statements, including of those that the prosecutor relied on (see paragraphs 32 and 37 above), from which it could have been inferred that the applicant had in fact sustained injuries all over his body. 76. Lastly, the Court considers as does the applicant that the fact that the police officers did not report the Roma ’ s alleged insulting behaviour sheds doubt on their version of the facts. The police officers ’ explanation for their reference to the “ pure Gypsy” behaviour will be examined below ( see paragraphs 111-132 below). 77. Another point of concern is the fact that the investigators limited themselves to exonerating the police officers and thus failed to identify those responsible for the applicant ’ s injuries. This is particularly serious bearing in mind that the applicant was a minor at the date of the events and also severely disabled. 78. It is true that if the violence had not been perpetrated by police officers but by a private individual, the criminal prosecution of the person responsible could only have been started at the request of the victim ( plângere prealabilă, Article 180 of the Romanian Criminal Code). However, no such complaint could be lodged if the police did not identify the alleged perpetrators of the crimes. Therefore, in the case under review, the applicant could not immediately lodge a criminal complaint against those who had allegedly beaten him. 79. Lastly, the Court recalls that it has already established that the applicable law at the date of the facts made the hierarchical and institutional independence of the military prosecutor doubtful (see Barbu Anghelescu, §§ 40-30 and 70; Bursuc, §§ 104 and 107; and Dumitru Popescu (no. 1), §§ 74-78, judgments cited above ). 80. In the light of the above and on the basis of all the material placed before it, the Court considers that the Government have not satisfactorily established that the applicant ’ s injuries were caused otherwise than by the treatment inflicted on him by the police officers, and concludes that these injuries were the result of inhuman and degrading treatment (see also Cobzaru, cited above, § 74). Accordingly, there has been a violation of Article 3 of the Convention. 81. Having regard to the above-mentioned deficiencies identified in the investigation, the Court also concludes that the State authorities failed to conduct a proper investigation into the applicant ’ s allegations of ill ‑ treatment (see also Cobzaru, cited above, § 75). Thus, there has been a violation of Article 3 of the Convention also under its procedural head. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 82. The applicant further complained that, because of the decision not to prosecute of 2 October 2001, he could not file a civil action for compensation against the police officer who had beaten him. He relied on Article 6 § 1 of the Convention, which reads as follows : “In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing ... by [a] ... tribunal...” A. The parties ’ submissions 83. The Government submitted that the investigations conducted by the authorities in the case had been effective and that the police officers accused of ill-treatment had been exonerated based on all the evidence adduced in the file. 84. They contended that after the decision of the prosecutor of 2 October 2001, the applicant could have lodged an action with the civil courts, based on Articles 998-999 of the Civil Code. Such an action would have had prospects of success, since the civil courts were not bound by the prosecutor ’ s decision. It would have allowed the applicant to establish the police officers ’ civil responsibility. 85. Relying on the case Van Oosterwijck v. Belgium ( judgment of 6 November 1980, Series A no. 40, pp. 18-19, § 37), they pointed out that the applicant ’ s negative opinion of the prospects of success alone could not of itself justify or excuse failure to exercise a remedy. 86. The applicant contended that the findings of a criminal investigation were binding on the civil courts in so far as they concerned the existence of the facts alleged, the person responsible and his or her liability, which rendered such remedy ineffective in his particular case. B. The Court ’ s assessment 87. The Court reiterates that the purpose of the exhaustion rule is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to it (see, among many other authorities, Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999-IV). 88. The Court makes reference to its findings under Article 13 below, according to which the appeal before the courts against the prosecutor ’ s decision is an effective remedy in this case (see paragraphs 99-110 below). 89. In these circumstances, the Court considers that the applicant should have challenged the prosecutor ’ s decision of 2 October 2001 and that it is not for this Court to speculate either on the outcome of such appeal or on its influence on the civil courts called to settle the compensation (see, mutatis mutandis, Moldovan and Others (no. 2), nos. 41138/98 and 64320/01, § 120, ECHR 2005 ‑ VII (extracts); Menesheva v. Russia, no. 59261/00, § 76, 9 March 2006; and Corsacov v. Moldova, no. 18944/02, § 82, 4 April 2006). 90. It follows that this complaint must be rejected under Article 3 5 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies. III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 91. The applicant also complained that the authorities ’ failure to carry out an effective investigation capable of providing redress for the ill ‑ treatment suffered by the applicant constituted a violation of Article 13 of the Convention. Furthermore, he complained that he could not effectively challenge, before a court, the decision not to prosecute taken by the military prosecutor in favour of the police officer who had allegedly injured him. Article 13 reads as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 92. The Court notes that this complaint has two distinct branches : the ineffectiveness of the criminal investigation and the lack of appeal against the military prosecutor ’ s decision. It will deal with each one separately. A. Effectiveness of the investigation 1. Admissibility 93. The Court notes that these aspects of the complaint are linked to the complaint examined under the procedural head of Article 3 and must therefore likewise be declared admissible. 2. Merits 94. As to the merits, the Court recalls that it has concluded that there was a procedural violation of Article 3 in respect of the same aspects (see paragraph 81 above ). Therefore, it does not deem it necessary in the present case to make a separate finding under Article 13 of the Convention for this branch of the complaint (see, mutatis mutandis, Šečić v. Croatia no. 40116/02, § 61, ECHR 2007 ‑ ... ). B. Appeal against the prosecutor ’ s decision 95. The Court considers that a separate issue arises under Article 13 in so far as the applicant complained that he could not lodge a complaint against the prosecutor ’ s decision not to institute criminal proceedings, in particular bearing in mind the fact that the applicant alleged that the prosecutor ’ s decision prevented him from seeking damages before the civil courts. This matter has not been examined under the procedural head of Article 3, above. The Court will therefore examine it further. 1. The parties ’ submissions 96. The Government pleaded non-exhaustion of domestic remedies as the applicant had not availed himself of the possibility of challenging, before a court, the military prosecutor ’ s decision not to prosecute. They noted that this new appeal, provided by Article 278 1 of the Code of Criminal Procedure, had been introduced by Law no. 281 of 24 June 2003 and had been available to the applicant from 1 July 2003. 97. Citing Brusco v. Italy ((dec.), no. 69789/01, ECHR 2001 ‑ IX) and Nogolica v. Croatia ( (dec.), no. 77784/01, ECHR 2002 ‑ VIII ), they considered that the applicant had to exhaust this remedy, although it had been available only after the present application had been lodged with the Court. 98. The applicant submitted that there were no special circumstances in his case that would allow for an exception to the rule that the remedy must exist prior to the lodging of the application. He further claimed that the Government had not proved the effectiveness of this remedy. 2. The Court ’ s assessment a) Admissibility 99. The Court considers that the Government ’ s argument raises issues as to the effectiveness, from the applicant ’ s perspective, of complaining against the prosecutor ’ s decision. It is thus closely linked to the merits of the complaint under examination. Therefore the Court joins the preliminary objection to the merits of the applicant ’ s complaint. 100. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. b) Merits 101. As the Court has held on many occasions, Article 13 of the Convention guarantees the availability, at the national level, of a remedy to enforce the substance of Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. The effect of Article 13 of the Convention is thus to require the provision of a domestic remedy to deal with the substance of an “arguable claim” under the Convention and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their Convention obligations under this provision. The scope of the obligation under Article 13 of the Convention varies depending on the nature of the applicant ’ s complaint under the Convention. Nevertheless, the remedy required by Article 13 must be “effective” in practice as well as in law (see Aksoy v. Turkey judgment of 18 December 1996, Reports 1996-VI, p. 2285, § 95; Aydın v. Turkey, judgment of 25 September 1997, Reports 1997-VI, pp. 1895-96, § 103; and Kaya v. Turkey, judgment of 19 February 1998, Reports 1998-I, pp. 329-30, § 106). 102. In view of the Court ’ s findings with regard to Article 3 above, this complaint is clearly “arguable” for the purposes of Article 13 (see Boyle and Rice v. the United Kingdom, judgment of 27 April 1988, Series A no. 131, § 52). Thus, it remains to be established whether the applicant had an effective remedy available in Romanian law so as to challenge the prosecutor ’ s decision not to indict the police officers. 103. The Court recalls that in the present case the incidents between the applicant and the police took place on 3 April 2001, the criminal complaint was lodged on the 18 April 2001 and the Military Prosecutor decided not to prosecute on 2 October 2001, decision confirmed by the hierarchically superior Prosecutor ’ s Office on 15 May 2002. On 1 January 2004, Law no. 281/2003 became applicable. 104. The Court reiterates that the rule on the exhaustion of domestic remedies is based on the assumption, reflected in Article 13 of the Convention - with which it has close affinity - that there is an effective remedy available in respect of the alleged breach in the domestic system. In this way, it is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights (see the Akdivar and Others v. Turkey judgment of 16 September 1996, Reports 1996-IV, p. 1210, § 65, and the Aksoy, cited above, p. 2275, § 51). It is true that in order for the exhaustion rule to come into operation, the effective remedy must exist at the date when the application is lodged with the Court. However this rule is subject to exceptions which might be justified by the specific circumstances of each case (see Baumann v. France, no 33592/96, 22 May 2001, § 47, unreported, Brusco, cited above ). The Court has accepted that this was the case when at the national level a new law, specifically designed to provide direct redress to violations of fundamental procedural rights, was introduced with retroactive effect and put thus an end to a structural problem that existed in the national legal system before its adoption (see Içyer v. Turkey (dec.), no. 18888/02, §§ 83 ‑ 84, ECHR 2006 ‑ I; Charzyński v. Poland (dec.), no. 15212/03, §§ 40 ‑ 41, ECHR 2005 ‑ V; and mutatis mutandis Ismayilov v. Azerbaijan, no. 4439/04, § 38, 17 January 2008). 105. Turning to the present case, the Court has already established that before the amendments to the Code of Criminal Procedure of 2003 (Law no. 281/2003), the interested parties had no effective possibility of challenging the prosecutor ’ s decision before a court (see Rupa v. Romania (dec.), no. 58478/00, 14 December 2004; and Kalanyos and Others, cited above). 106. However, after the introduction of the above amendments persons in the applicant ’ s situation could avail themselves of the new remedy introduced by Law no. 281/2003 which set a one-year time-limit for interested parties to appeal against a prosecutor ’ s decision taken before the entry into force of this Law. The newly introduced provision describes in details the procedure to be followed before the courts and the applicable time ‑ limits. It gives the courts the power to control the investigation carried out by the prosecutor in the case, and to hear evidence. 107. The Court notes that this new provision has removed the obstacles that were decisive when the Court found that the complaint mechanism available before the 2003 amendments did not comply with all the requirements of an effective remedy (see also, mutatis mutandis, Nogolica, cited above). Moreover the new appeal was specifically designed to provide direct redress for similar complaints to the one raised by the applicant. 108. Furthermore this appeal became applicable less than three years from the date of the incidents. The Court considers that this period is not lengthy enough to seriously alter the recollection of facts by those involved and thus to reduce the effectiveness of the courts ’ examination of facts (see, mutatis mutandis, Dumitru Popescu (no. 1), cited above, § 56). 109. In the light of these circumstances and recalling the subsidiary character of the Convention machinery, the Court considers that the applicant should have challenged before the courts the prosecutor ’ s decision in the case once the remedy provided by Law no. 281/2003 came into force. 110. Accordingly, the Court considers that in the present case there has been no violation of Article 13 of the Convention in so far as it refers to the impossibility of lodging an appeal against the military prosecutor ’ s decision not to press charges. IV. ALLEGED VIOLATION OF ARTICLE 14 TAKEN IN CONJUNCTION WITH ARTICLES 3 AND 13 OF THE CONVENTION 111. The applicant complained that the ill-treatment that he had suffered and the decision not to prosecute the police officer who had beaten him had been predominantly due to his Roma ethnicity, contrary to the principle of non ‑ discrimination set forth in Article 14 of the Convention taken together with Articles 3 and 13. Article 14 of the Convention reads as follows: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” A. The parties ’ submissions 112. The Government considered that nothing in the file could prove discrimination against the applicant. They contended that the alleged flaws in the criminal investigations had not been caused by the applicant ’ s ethnicity. 113. Lastly, they contended that the word “Gypsy” had a pejorative connotation only in certain contexts, and, even then mainly in the oral language. 114. The applicant made reference to the broader situation of Roma in Romania, as reflected in various reports by NGOs, the Council of Europe and the European Commission (for a summary of these reports, see Cobzaru, cited above, §§ 44-52). He also contended that the word “ ţigan ” was offensive, in particular when used to differentiate the person from a person of Romanian ethnicity, as it had happened in this case (see paragraph 7 above). 115. The applicant also contended that racist remarks in official police documents had gone unnoticed by the prosecutors (see paragraph 36 above) and considered that the Prefect was undully quick in ruling out a racist motive behind the incidents (see paragraph 17 above). B. The Court ’ s assessment 1. Admissibility 116. The Court notes that this complaint is linked to those examined under Articles 3 and 13 and must therefore likewise be declared admissible. 2. Merits 117. The Court ’ s case-law on Article 14 establishes that discrimination means treating differently, without an objective and reasonable justification, persons in relevantly similar situations ( Willis v. the United Kingdom, no. 36042/97, § 48, ECHR 2002-IV). Racial violence is a particular affront to human dignity and, in view of its perilous consequences, requires from the authorities special vigilance and a vigorous reaction. It is for this reason that the authorities must use all available means to combat racism and racist violence, thereby reinforcing democracy ’ s vision of a society in which diversity is not perceived as a threat but as a source of its enrichment (see Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 145, ECHR 2005-VII). 118. Faced with the applicant ’ s complaint of a violation of Article 14, as formulated, the Court ’ s task is to establish whether or not racism was a causal factor in the impugned conduct of the authorities during the events and the ensuing investigation, so as to give rise to a breach of Article 14 of the Convention taken in conjunction with Article 3. 119. The Court will start by looking into the alleged racial motives behind the conduct of the investigations. In this context, it reiterates that when investigating violent incidents, State authorities have the additional duty to take all reasonable steps to unmask any racist motive and to establish whether or not ethnic hatred or prejudice may have played a role in the events. Treating racially induced violence and brutality on an equal footing with cases that have no racist overtones would be turning a blind eye to the specific nature of acts that are particularly destructive of fundamental rights. A failure to make a distinction in the way in which situations that are essentially different are handled may constitute unjustified treatment irreconcilable with Article 14 of the Convention. Admittedly, proving racial motivation will often be extremely difficult in practice. The respondent State ’ s obligation to investigate possible racist overtones to a violent act is an obligation to use best endeavours and not absolute; the authorities must do what is reasonable in the circumstances of the case (see Nachova and Others, § 160, and Šečić, §§ 66-67, judgments cited above ). 120. In the present case, the military prosecutor addressed, to a certain extent, the potential racist implications of the incidents. It remains to be seen if the authorities used best endeavours to assess the racist aspects of the case. 121. The Court notes that the military prosecutor concluded that there had been no racial aspect to the incidents, based solely on C.C. ’ s and the police officers ’ estimation of the conflict. He disregarded the fact that the same witnesses had declared that C.C. had complained to the deputy mayor that he had come before elections to win Roma votes and had reneged on his promises when elected. The Court considers that this remark cannot be regarded as completely racially neutral. Moreover, it finds problematic the fact that only the villagers, mainly Roma, were considered to be biased in their statements during the criminal investigations, while the police officers ’ statements were integrated into the military prosecutor ’ s reasoning and conclusion (see paragraph 73 above ). 122. The Court is dissatisfied that the military prosecutor did not address in any way the remarks from the Suceava Police report describing the villagers ’ alleged aggressive behaviour as “purely Gypsy”, although such remarks are clearly stereotypical. 123. The Court is also concerned, as is the applicant, with the levity with which the Prefect concluded that the incidents of 3 April 2001 had had no racist motivation. 124. Consequently, the Court considers that the authorities did not do everything in their power to investigate the possible racist motives behind the conflict. 125. The Court will further look into the implication of this finding for the examination of the allegations of a “substantive” violation of Article 14. 126. The Court reiterates that in assessing evidence it has adopted the standard of proof “beyond reasonable doubt” (see paragraph 63 above ); nonetheless, it has not excluded the possibility that in certain cases of alleged discrimination it may require the respondent Government to disprove an arguable allegation of discrimination and – if they fail to do so – find a violation of Article 14 of the Convention on that basis ( see Nachova and Others, cited above, § 157, and Bekos and Koutropoulos v. Greece, no. 15250/02, § 65, ECHR 2005 ‑ XIII (extracts) ). 127. Lastly, the Court acknowledges that where it is alleged – as here – that a violent act was motivated by racial prejudice, shifting the burden of proof to the respondent Government might amount to requiring the latter to prove the absence of a particular subjective attitude on the part of the person concerned (see Nachova and Others, § 157, and Bekos and Koutropoulos, § 65, judgments cited above ). 128. In the present case it is not disputed that the incidents of 3 April 2001 took place between Roma villagers and police forces. The applicant himself is of Roma origin. The police officers stopped in front of a pub owned by C.C., a Roma ethnic, and the dispute that arose, as related by the villagers or, to a certain extent, as reported by the police officers, were not racially neutral. The Court reiterates that the villagers claimed the police officers were asking F.L. whether he was “Gypsy or Romanian” before beating him, at the deputy mayor ’ s request to teach the Roma “a lesson” (see paragraph 7 above). Likewise, C.C. ’ s dispute with the deputy mayor that evening, had at its core racist elements. Furthermore, the Court considers that the remarks from the Suceava Police report describing the villagers ’ alleged aggressive behaviour as “pure Gypsy”, are clearly stereotypical and prove that the police officers were not racially neutral, either during the incidents or throughout the investigation. 129. The Court finds thus no reason to consider that the applicant ’ s aggression by the police officers was removed from this racist context. 130. For all these reasons, the Court considers that the burden of proof lies on the Government, regard having had to all the evidence of discrimination ignored by the police and the military prosecutor and the above conclusion of a racially biased investigation into the incidents. 131. Therefore, in the present case the evidence indicating the racial motives behind the police officers ’ actions is clear and neither the prosecutor in charge with the criminal investigation nor the Government could explain in any other way the incidents or, to that end, put forward any arguments showing that the incidents were racially neutral. 132. There has accordingly been a violation of Article 14 of the Convention taken in conjunction with Article 3. 133. Lastly, having regard to the finding under Article 13 of the Convention, ( see paragraph 9 4 above ), the Court considers that no particular issue arises under Article 14 taken in conjunction with Article 13. V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 134. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 135. The applicant claimed 1,000 euros (EUR) in respect of pecuniary damage, that is, the money his family had spent on his repeated hospitalisations after the beating of 3 April 2001. He also claimed EUR 70,000 in respect of non-pecuniary damage. 136. The Government requested the Court to dismiss the applicant ’ s claims for just satisfaction. They considered that the State ’ s responsibility could not be engaged for the hospitalisation costs and that the claims in respect of non ‑ pecuniary damage were exaggerated and unsubstantiated. 137. The Court notes that the applicant ’ s claims for pecuniary damages are unsubstantiated and rejects them accordingly. 138. On the other hand, it awards the applicant EUR 15 ,000 in respect of non ‑ pecuniary damage. B. Costs and expenses 139. The ERRC claimed EUR 2,278 for the costs and expenses incurred before the Court, namely the preparation of the case, 10 hours of reviewing previous submissions, research on case-law, contacts with partners and client and 22 hours of drafting submissions to the Court. They asked that the award be paid directly to them, in a separate account. 140. The Government contended that the contract signed by the applicant with ERRC had not set the hourly fees. 141. The Court reiterates that in order for costs and expenses to be reimbursed under Article 41, it must be established that they were actually and necessarily incurred and were reasonable as to quantum (see, for example, Nilsen and Johnsen v. Norway [GC], no. 23118/93, § 62, ECHR 1999-VIII, and Boicenco v. Moldova, no. 41088/05, § 176, 11 July 2006). In accordance with Rule 60 § 2 of the Rules of Court, itemised particulars of all claims must be submitted, failing which the Chamber may reject the claim in whole or in part. 142. In the present case, having regard to the above criteria, to the itemised list submitted by the applicant ’ s representative and to the number and complexity of issues dealt with and the substantial input of ERRC, the Court awards the requested amount, that is EUR 2,278 to be paid to a bank account indicated by the applicant ’ s representative. C. Default interest 143. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention, both under its procedural and its substantive limb: on the one hand, it found that the Romanian authorities had failed to conduct a proper investigation into the applicant’s allegations of ill-treatment; on the other hand, Romania had not satisfactorily established that the applicant’s injuries had been caused otherwise than by the treatment inflicted on him by police officers. found that the applicant’s injuries were the result of inhuman and degrading treatment and that there had been no proper investigation, The Court further held that there had been a violation of Article 14 (prohibition of discrimination) of the Convention taken in conjunction with Article 3: neither the prosecutor in charge of the criminal investigation nor the Romanian Government could put forward any argument to show that the incident had been racially neutral; on the contrary, the evidence indicated that the police officers’ behaviour had clearly been motivated by racism. |
248 | Recent judgments and decisions of the Court | V. RELEVANT DOMESTIC LAW AND PRACTICE A. Constitution of the Republic of Lithuania B. Criminal Code C. Code of Criminal Procedure D. Civil Code E. The Law on Intelligence F. The Statute of the Seimas G. The Law on the Seimas Ad Hoc Investigation Commissions H. The Constitutional Court ’ s case-law VI. RELEVANT INTERNATIONAL LAW A. Vienna Convention on the Law of Treaties B. International Covenant on Civil and Political Rights C. The United Nations Torture Convention D. UN Geneva Conventions 1. Geneva (III) Convention 2. Geneva (IV) Convention E. International Law Commission, 2001 Articles on Responsibility of States for Internationally Wrongful Acts F. UN General Assembly Resolution 60/147 THE LAW I. THE GOVERNMENT ’ S PRELIMINARY OBJECTIONS TO THE ADMISSIBILITY OF THE APPLICATION A. Lithuania ’ s lack of jurisdiction and responsibility under the Convention in respect of the applicant ’ s alleged rendition to Lithuania, detention and ill-treatment in a CIA detention facility in Lithuania and transfer out of Lithuania and the applicant ’ s lack of victim status 1. The Government 2. The applicant 3. The Court ’ s assessment B. Non-compliance with the rule of exhaustion of domestic remedies and the six-month rule 1. The Government (a) Non-exhaustion of domestic remedies (b) Non-compliance with the six-month rule 2. The applicant (a) Non-exhaustion of domestic remedies (b) Non-compliance with the six-month rule 3. The Court ’ s assessment II. THE COURT ’ S ESTABLISHMENT OF THE FACTS AND ASSESSMENT OF EVIDENCE A. The parties ’ positions on the facts and evidence 1. The Government (a) Lack of credibility of evidence adduced by the applicant (b) Lack of evidence demonstrating that certain CIA-linked planes landing in Lithuania between 17 February 2005 and 25 March 2006 carried out extraordinary rendition missions (c) Lack of evidence demonstrating that a CIA secret detention facility operated in Lithuania and that the applicant was detained in that facility (i) As regards the alleged existence of a CIA secret detention facility (ii) As regards the applicant ’ s alleged secret detention in Lithuania (d) Lack of evidence demonstrating that the Lithuanian authorities agreed to the running of a secret detention facility by the CIA on Lithuanian territory or cooperated in the execution of the HVD Programme (e) Lack of evidence of Lithuania ’ s knowledge of the CIA HVD Programme at the material time 2. The applicant (a) As regards the Government ’ s allegation of a lack of credibility of sources of information and evidence before the Court (b) As regards the CIA-linked planes landing in Lithuania between 17 February 2005 and 25 March 2006 (c) As regards the existence of a CIA secret detention facility in Lithuania and the applicant ’ s secret detention in Lithuania (d) As regards the Lithuanian authorities ’ agreement to the running of a secret detention facility by the CIA on Lithuanian territory and their complicity in the execution of the HVD Programme (e) As regards Lithuania ’ s knowledge of the CIA HVD Programme at the material time B. Joint submissions by Amnesty International (AI) and the International Commission of Jurists (ICJ) on public knowledge of US practices in respect of captured terrorist suspects C. HFHR submissions D. The parties ’ positions on the standard and burden of proof 1. The Government 2. The applicant E. The Court ’ s assessment of the facts and evidence 1. Applicable principles deriving from the Court ’ s case-law 2. Preliminary considerations concerning the assessment of the facts and evidence in the present case 3. As regards the establishment of the facts and assessment of evidence relevant to the applicant ’ s allegations concerning his transfers and secret detention by the CIA before his rendition to Lithuania (27 March 2002 to 17 or 18 February 2005) (a) Period from 27 March 2002 to 22 September 2003 (b) Whether the applicant ’ s allegations concerning his secret detention and transfers in CIA custody from 22 September 2003 (transfer out of Poland) to 17 or 18 February 2005 (transfer out of Morocco) were proved before the Court 4. As regards the establishment of the facts and assessment of evidence relevant to the applicant ’ s allegations concerning his rendition by the CIA to Lithuania, secret detention in Lithuania and transfer by the CIA out of Lithuania (17 or 18 February 2005 to 25 March 2006) (a) Whether a CIA secret detention facility existed in Lithuania at the time alleged by the applicant (17 or 18 February 2005 to 25 March 2006) (b) Whether the applicant ’ s allegations concerning his rendition to Lithuania, secret detention at the CIA Detention Site Violet in Lithuania and transfer from Lithuania to another CIA detention facility elsewhere were proved before the Court (i) Preliminary considerations (ii) Transfers and secret detention (iii) The applicant ’ s treatment in CIA custody in Lithuania 5. As regards the establishment of the facts and assessment of evidence relevant to the applicant ’ s allegations concerning Lithuania ’ s knowledge of and complicity in the CIA HVD Programme (a) Relations of cooperation between the Lithuanian authorities and the CIA, including an agreement to host a CIA detention facility, acceptance of a financial reward for supporting the HVD Programme and assistance in the acquisition and adaptation of the premises for the CIA ’ s activities (Project No. 1 and Project No. 2) (i) Agreement to host a CIA detention facility and acceptance of a financial reward for supporting the HVD Programme (ii) Assistance in the acquisition and adaptation of the premises for the CIA ’ s activities (Project No. 1 and Project No. 2) (b) Assistance in disguising the CIA rendition aircraft routes through Lithuania by means of the so-called “dummy” flight planning (c) Special procedure for CIA flights (d) Circumstances routinely surrounding HVDs transfers and reception at the CIA “black site” (e) Public knowledge of treatment to which captured terrorist suspects were subjected in US custody in 2002-2005 (f) Informal transatlantic meeting 6. The Court ’ s conclusion as to the Lithuanian authorities ’ knowledge of and complicity in the CIA HVD Programme III. LITHUANIA ’ S JURISDICTION AND RESPONSIBILITY UNDER THE CONVENTION AND THE APPLICANT ’ S VICTIM STATUS A. The parties ’ submissions B. The Court ’ s assessment 1. As regards jurisdiction 2. As regards the State ’ s responsibility for an applicant ’ s treatment and detention by foreign officials on its territory 3. As regards the State ’ s responsibility for an applicant ’ s removal from its territory 4. Conclusion as to the Lithuanian Government ’ s preliminary objections that Lithuania lacks jurisdiction and responsibility under the Convention and as to the applicant ’ s victim status IV. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION A. Procedural aspect of Article 3 1. The parties ’ submissions (a) The Government (b) The applicant 2. Joint submissions by Amnesty International (AI) and the International Commission of Jurists (ICJ) on “effective investigation” 3. The Court ’ s assessment (a) Admissibility (b) Merits (i) Applicable general principles deriving from the Court ’ s case-law (ii) Application of the above principles to the present case B. Substantive aspect of Article 3 1. The parties ’ submissions (a) The Government (b) The applicant 2. The Court ’ s assessment (a) Admissibility (b) Merits (i) Applicable general principles deriving from the Court ’ s case-law (ii) Application of the above principles to the present case (α) Treatment to which the applicant was subjected at the relevant time (β) Court ’ s conclusion as to Lithuania ’ s responsibility V. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION A. The parties ’ submissions 1. The Government 2. The applicant B. The Court ’ s assessment 1. Admissibility 2. Merits (a) Applicable general principles deriving from the Court ’ s case-law (b) Application of the above principles to the present case VI. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION A. The parties ’ submissions 1. The Government 2. The applicant B. The Court ’ s assessment 1. Admissibility 2. Merits VII. ALLEGED VIOLATION OF ARTICLE 13 IN CONJUNCTION WITH ARTICLE 3 OF THE CONVENTION A. The parties ’ submissions B. The Court ’ s assessment 1. Admissibility 2. Merits (a) Applicable general principles deriving from the Court ’ s case-law (b) Application of the above principles to the present case VIII. APPLICATION OF ARTICLES 46 AND 41 OF THE CONVENTION A. Article 46 of the Convention B. Article 41 of the Convention 1. Damage 2. Costs and expenses 3. Default interest ANNEX I : List of abbreviations used in the Court ’ s judgment ANNEX II : List of references to the Court ’ s case-law In the case of Abu Zubaydah v. Lithuania, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Linos-Alexandre Sicilianos, President, Kristina Pardalos, Robert Spano, Aleš Pejchal, Egidijus Kūris, Mirjana Lazarova Trajkovska, Paul Mahoney, judges, and Abel Campos, Section Registrar, Having deliberated in private on 28 and 29 June 2016 and 10 April 2018, Delivers the following judgment, which was adopted on the last of these dates: PROCEDURE 1. The case originated in an application (no. 46454/11) against the Republic of Lithuania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a stateless Palestinian, Mr Zayn Al-Abidin Muhammad Husayn, also known as Abu Zubaydah (“the applicant”), on 14 July 2011. 2. The applicant was represented before the Court by Ms H. Duffy, a lawyer practising in The Hague, Mr G.B. Mickum IV, member of the District of Columbia and Virginia Bars, and Mr J. Margulies, member of the Illinois Bar. The Lithuanian Government (“the Government”) were represented by their Agent, Ms K. Bubnytė. 3. The applicant alleged, in particular: (i) a breach of Articles 3, 5 and 8 of the Convention on account of the fact that Lithuania had enabled the Central Intelligence Agency of the United States (“the CIA”) to detain him secretly on its territory, thereby allowing the CIA to subject him to treatment that amounted to torture, incommunicado detention, various forms of mental and physical abuse and deprivation of any access to, or contact with, his family or the outside world; (ii) a breach of Articles 3, 5 and 8 of the Convention on account of the fact that Lithuania had enabled the CIA to transfer him from its territory, thereby exposing him to years of further torture, ill-treatment, secret and arbitrary detention and physical abuse in the hands of the US authorities, as well as lack of any contact with his family; (iii) a breach of Article 13 taken separately and in conjunction with Article 3 on account of Lithuania ’ s failure to conduct an effective investigation into his allegations of serious violations of Article 3 of the Convention. 4. The application was allocated to the Second Section of the Court (Rule 52 § 1 of the Rules of Court). 5. On 14 December 2012 the President of the Second Section accorded priority to the application, in accordance with Rule 41 and gave notice of the application to the Government, in accordance with Rule 54 § 2 (b). 6. The Government and the applicant each filed written observations on the admissibility and merits of the case. In addition, third-party comments were received from the Helsinki Foundation for Human Rights (“HFHR”), Amnesty International (hereinafter also referred to as “AI”) and the International Commission of Jurists (hereinafter also referred to as “ICJ”). 7. On 17 March 2015 the Chamber that had been constituted to consider the case (Rule 26 § 1) decided to ask the Government to submit documentary evidence, including declassified parts of the material from the criminal investigation into the applicant ’ s allegations that was conducted in Lithuania and flight data concerning the alleged landings of CIA rendition aircraft in Lithuania. The parties were also invited to produce any further evidence on which they wished to rely before the Court and make comments on the case in the light of the Court ’ s judgments in El-Masri (see El-Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, ECHR 2012), Al Nashiri v. Poland (see Al Nashiri v. Poland, no. 28761/11, 24 July 2014), and Husayn (Abu Zubaydah) v. Poland (see Husayn (Abu Zubaydah) v. Poland, no. 7511/13, 24 July 2014). 8. Following the re-composition of the Court ’ s Sections, the application was assigned to the First Section of the Court, pursuant to Rule 52 § 2. 9. Subsequently, the Chamber of the First Section that had been constituted to consider the case, having consulted the parties, decided that a public hearing on the admissibility and merits of the case be held on 29 June 2016. The Chamber also decided, of its own motion, to hear evidence from experts (Rule A1 of the Annex to the Rules of Court). The date for a fact ‑ finding hearing was set for 28 June 2016. In this connection, the President of the Chamber directed that verbatim records of both hearings be made, pursuant to Rule 70 of the Rules of Court and Rule A8 of the Annex to the Rules of Court, and instructed the Registrar accordingly. 10. On 28 June 2016 the Chamber held a fact-finding hearing and took evidence from experts, in accordance with Rule A1 §§ 1 and 5 of the Annex. 11. In the course of the fact-finding hearing the parties were also invited to state their position on the confidentiality of certain documents produced by the Lithuanian Government (Rule 33 § 2), in particular those relating to the criminal investigation, including a summary of witness evidence and some other material collected in the context of that investigation (see also paragraphs 178-199, 301-346, 357, 362, 365 and 367-368 below). The applicant was in favour of full disclosure, whereas the Government considered that the confidentiality of all documents submitted by them should be maintained. The Court decided to invite the Government to prepare a redacted version of the confidential documents after the hearing and instructed the parties that at the public hearing confidentiality was to be respected in a manner which would not lead to disclosure of sources of evidence obtained in the criminal investigation or the identities of witnesses or third parties involved. 12. A public hearing took place in public in the Human Rights Building, Strasbourg, on 29 June 2016 (Rule 59 § 3). There appeared before the Court: (a) for the Government Ms K. Bubnytė, Agent of the Government of the Republic of Lithuania to the European Court of Human Rights, Mr P. Griciūnas, the Vice Minister of Justice of the Republic of Lithuania, Mr E. Pašilis, the Prosecutor General of the Republic of Lithuania; (b ) for the applicant Ms H. Duffy, Counsel, Ms A. Jacobsen, Counsel. The Court heard addresses by Mr Griciūnas, Mr Pašilis and Ms Duffy. 13. The Government, in their oral submissions, stated that they wished to withdraw their request to apply Rule 33 § 2 in respect of all documents submitted by them, except to the extent necessary to ensure the protection of personal data. 14. The fact-finding hearing and the public hearing were presided over by Mirjana Lazarova Trajkovska, former President of the First Section of the Court. Following the end of her term of office and elections of Section Presidents, Linos-Alexandre Sicilianos, President of the First Section, became the President of the Chamber (Rules 8 § 1, 12 and 26 § 3). Judges Lazarova-Trajkovska and Mahoney continued to deal with the case after the end of their terms of office (Rule 26 § 3). THE FACTS 15. The applicant was born in 1971 and is currently detained in the Internment Facility at the US Guantánamo Bay Naval Base in Cuba. I. PRELIMINARY CONSIDERATIONS REGARDING THE ESTABLISHMENT OF THE FACTS 16. It is to be noted that in the present case involving, as the applicant ’ s previous application before the Court, complaints of secret detention and torture to which the applicant was allegedly subjected during the extraordinary rendition operations by the United States authorities (see paragraphs 19-88 below) the Court is deprived of the possibility of obtaining any form of direct account of the events complained of from the applicant (see Husayn (Abu Zubaydah) v. Poland, cited above, § 397; and Al Nashiri v. Poland, cited above, § 397; see also paragraph 90 below ). As in Husayn (Abu Zubaydah) v. Poland and Al Nashiri v. Poland (both cited above), in the present case the facts as adduced by the applicant were to a considerable extent a reconstruction of dates and other elements relevant to his rendition, detention and treatment in the US authorities ’ custody, based on various publicly available sources of information. The applicant ’ s version of the facts as stated in his initial application of 14 July 2011 evolved and partly changed during the proceedings before the Court (see paragraphs 111-11 7 below). The respondent Government contested the applicant ’ s version of the facts on all accounts, maintaining that there was no evidence demonstrating that they had occurred in Lithuania (see paragraphs 39 8 -40 5 and 42 3 -44 6 below). 17. In consequence, the facts of the case as rendered below (see paragraphs 90-211 below) are based on the applicant ’ s account supplemented by various items of evidence in the Court ’ s possession. II. EVIDENCE BEFORE THE COURT 18. In order to establish the facts of the case the Court relied on its findings in Husayn (Abu Zubaydah) v. Poland and Al Nashiri v. Poland (both cited above), documentary evidence supplied by the applicant and the Government, including witness testimony obtained in the criminal investigation (see paragraphs 30 4-349 below), observations of the parties, material available in the public domain (see paragraphs 234-263 below), and testimony of experts who had given oral evidence before the Court at the fact-finding hearing held on 28 June 2016 (see paragraphs 3 72 -39 5 below). In the course of that hearing the Court, with the participation of the parties, took evidence from the following persons: (1) Senator Dick Marty, in his capacity as Rapporteur of the Parliamentary Assembly of the Council of Europe (“PACE”) in the inquiry into allegations of CIA secret detention facilities in the Council of Europe ’ s member States (hereinafter “the Marty Inquiry” – see paragraphs 26 9 ‑ 2 80 below); (2) Mr J.G.S., in his capacity as advisor to Senator Marty in the Marty Inquiry and advisor to Mr Hammarberg, the former Commissioner for Human Rights of the Council of Europe, who had dealt with, among other things, compiling data on flights associated with the CIA extraordinary rendition (see paragraphs 266-274, 370-375 and 382-386 below), as well as an expert who had submitted a report on the applicant ’ s case in El-Masri (cited above, § 75) and who had given oral evidence before the Court in the cases of Husayn (Abu Zubaydah) v. Poland (cited above, § § 42, 305-312 and 318-325) and Al Nashiri v. Poland ( cited above, §§ 42, 311-318 and 324-331) and also in connection with his investigative activities concerning the CIA extraordinary rendition operations in general. In the course of giving evidence to the Court, Senator Marty and Mr J.G.S. also gave a PowerPoint presentation entitled “Distillation of available documentary evidence, including flight data, in respect of Lithuania and the case of Abu Zubaydah ”; (3) Mr Crofton Black, in his capacity as an investigator at the Bureau of Investigative Journalism, an expert in the European Parliament Committee on Civil Liberties, Justice and Home Affairs ’ (“LIBE Committee”) investigation of alleged transportation and illegal detention of prisoners in European countries by the CIA (see paragraphs 284-291 and 387 below) and also in connection with his involvement in research and various investigative tasks concerning the CIA extraordinary rendition operations in general, including tasks performed for the UK-based non-governmental organisation Reprieve. 19. The relevant passages from the experts ’ testimony are reproduced below (see paragraphs 12 6-145 and 3 72-395 below). III. BACKGROUND TO THE CASE A. The so-called “High-Value Detainee Programme” 20. On an unspecified date following 11 September 2001 the CIA established a programme in the Counterterrorist Center (“CTC”) to detain and interrogate terrorists at sites abroad. In further documents the US authorities referred to it as “the CTC program” (see also paragraph 3 5 below) but, subsequently, it was also called “the High-Value Detainee Program” (“the HVD Programme”) or the Rendition Detention Interrogation Program (“the RDI Programme”). In the Council of Europe ’ s documents it is also described as “the CIA secret detention programme” or “the extraordinary rendition programme” (see also paragraphs 26 4 -2 80 below). For the purposes of the present case, it is referred to as “the HVD Programme”. 21. A detailed description of the HVD Programme made on the basis of materials that were available to the Court in the case of Husayn (Abu Zubaydah) v. Poland on the date of adoption of the judgment (8 July 2014) can be found in paragraphs 47-69 of that judgment. Those materials included the classified CIA documents released in redacted versions in 2009-2010 (see also paragraphs 3 4 -5 6 below). 22. On 9 December 2014 the United States authorities released the Findings and Conclusions and, in a heavily redacted version, the Executive Summary of the US Senate Select Committee on Intelligence ’ s “Study of the Central Intelligence Agency ’ s Detention and Interrogation Program”. The full Committee Study – as stated therein, “the most comprehensive review ever conducted of the CIA Detention and Interrogation Program” – which is more than 6,700 pages long, remains classified. The declassified Executive Summary (hereinafter “the 2014 US Senate Committee Report”) comprises 499 pages (for further details concerning the US Senate ’ s review of the CIA ’ s activities involved in the HVD Programme see paragraphs 70 ‑ 8 9 below). 23. The 2014 US Senate Committee Report disclosed new facts and provided a significant amount of new information, mostly based on the CIA classified documents, about the CIA extraordinary rendition and secret detention operations, their foreign partners or co-operators, as well as the plight of certain detainees, including the applicant in the present case (see also paragraphs 7 6, 80-81 and 92-96 below). However, all names of the countries on whose territories the CIA carried out its extraordinary rendition and secret detention operations were redacted and all foreign detention facilities were colour code-named. The 2014 US Senate Committee Report explains that the CIA requested that the names of countries that hosted CIA detention sites, or with which the CIA negotiated hosting sites, as well as information directly or indirectly identifying countries be redacted. The countries were accordingly listed by a single letter of alphabet, a letter which was nevertheless blackened throughout the document. Furthermore, at the CIA ’ s request the original code names for CIA detention sites were replaced with new identifiers – the above-mentioned colour code-names. 24. The 2014 US Senate Committee Report refers to eight specifically colour code-named CIA detention sites located abroad: “Detention Site Green”, “Detention Site Cobalt”, “Detention Site Black”, “Detention Site Blue”, “Detention Site Gray”, “Detention Site Violet”, “Detention Site Orange” and “Detention Site Brown” (see also paragraph 16 6 below). 25. The description of the HVD Programme given below is based on the CIA declassified documents that were available to the Court in Husayn (Abu Zubaydah) v. Poland and Al Nashiri v. Poland, supplemented by the 2014 US Senate Committee Report. 1. The establishment of the HVD Programme (a) The US President ’ s memoranda (i) Memorandum of 17 September 2001 26. The 2014 US Senate Committee Report states that on 17 September 2001 President George W. Bush signed a covert action Memorandum of Notification (“the MON”) to authorise the Director of the CIA to “undertake operations designed to capture and detain persons who pose a continuing, serious threat of violence or death to U.S. persons and interests or who are planning terrorist activities”. Although the CIA had previously been provided with certain limited authority to detain specific, named individuals pending the issuance of formal criminal charges, the MON provided unprecedented authority, granting the CIA significant discretion in determining whom to detain, the factual basis for the detention, and the length of their detention. The MON made no reference to interrogations or interrogation techniques. 27. Before the issuance of the MON, on 14 September 2001, the Chief of operations of the CIA, based on an urgent request from the Chief of the CTC, had sent an email to CIA Stations seeking input on appropriate locations for potential CIA detention facilities. 28. A CIA internal memorandum, entitled “Approval to Establish a Detention Facility for Terrorists”, drawn up on an unspecified date in November 2001, explained that detention at a US military base outside of the USA was “the best option”. In the context of risks associated with the CIA maintaining a detention facility, it warned that “as captured terrorists may be held days, months, or years, the likelihood of exposure will grow over time”. It anticipated that “in a foreign country, close cooperation with the host government will entail intensive negotiations” and warned that “any foreign country poses uncontrollable risks that could create incidents, vulnerability to the security of the facility, bilateral problems, and uncertainty over maintaining the facility”. The memorandum recommended the establishment of a “short-term” facility in which the CIA ’ s role would be limited to oversight, funding and responsibility”. It further stated that the CIA would “contract out all other requirements to other US Government organizations, commercial companies and, as appropriate, foreign governments”. (ii) Memorandum of 7 February 2002 29. On 7 February 2002 President Bush issued a memorandum stating that neither al-Qaeda nor Taliban detainees qualified as prisoners of war under the Geneva Conventions and that Common Article 3 of the Geneva Conventions (see paragraphs 22 6-231 below), requiring humane treatment of individuals in a conflict, did not apply to them. The text of the order read, in so far as relevant, as follows: “... 2. Pursuant to my authority as commander in chief and chief executive of the United States, and relying on the opinion of the Department of Justice dated January 22, 2002, and on the legal opinion rendered by the attorney general in his letter of February 1, 2002, I hereby determine as follows: a. I accept the legal conclusion of the Department of Justice and determine that none of the provisions of Geneva apply to our conflict with al-Qaida in Afghanistan or elsewhere throughout the world because, among other reasons, al-Qaida is not a High Contracting Party to Geneva. ... c. I also accept the legal conclusion of the Department of Justice and determine that common Article 3 of Geneva does not apply to either al-Qaida or Taliban detainees, because, among other reasons, the relevant conflicts are international in scope and common Article 3 applies only to armed conflict not of an international character. ’ d. Based on the facts supplied by the Department of Defense and the recommendation of the Department of Justice, I determine that the Taliban detainees are unlawful combatants and, therefore, do not qualify as prisoners of war under Article 4 of Geneva. I note that, because Geneva does not apply to our conflict with al-Qaida, al-Qaida detainees also do not qualify as prisoners of war. 3. Of course, our values as a nation, values that we share with many nations in the world, call for us to treat detainees humanely, including those who are not legally entitled to such treatment. Our nation has been and will continue to be a strong supporter of Geneva and its principles. As a matter of policy, the United States Armed Forces shall continue to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva. ... 6. I hereby direct the secretary of state to communicate my determinations in an appropriate manner to our allies, and other countries and international organizations cooperating in the war against terrorism of global reach.” 30. On the same day, at the press conference, the White House Press Secretary announced the President ’ s decision. The President ’ s memorandum was subsequently widely commented in the US and international media. (b) Abu Zubaydah ’ s capture and transfer to a CIA covert detention facility in March 2002 31. On 27 March 2002 the Pakistani authorities working with the CIA captured Abu Zubaydah, the applicant in the present case and the first so ‑ called “high-value detainee” (“HVD ”) in Faisalabad, Pakistan. Abu Zubaydah ’ s capture accelerated the development of the HVD Programme (see Husayn (Abu Zubaydah) v. Poland, cited above, §§ 82-84). 32. According to the 2014 US Senate Committee Report, in late March 2002, anticipating its eventual custody of Abu Zubaydah, the CIA began considering options for his transfer to CIA custody and detention under the MON. The CIA rejected the option of US military custody, mostly relying on the lack of security and the fact that in such a case Abu Zubaydah would have to be declared to the International Committee of the Red Cross (ICRC). 33. On 29 March 2002 President Bush approved moving forward with the plan to transfer Abu Zubaydah to a covert detention facility, codenamed “Detention Site Green” in a country whose name was blackened in the 2014 US Senate Committee Report (see also paragraphs 9 2-96 below). The report further states: “Shortly thereafter, Abu Zubaydah was rendered from Pakistan to Country [name redacted] where he was held at the first CIA detention site, referred to in this summary as ‘ DETENTION SITE GREEN ’ .” (c) Setting up the CIA programme “to detain and interrogate terrorists at sites abroad” 34. On 24 August 2009 the US authorities released a report prepared by John Helgerson, the CIA Inspector General, in 2004 (“the 2004 CIA Report”). The document, dated 7 May 2004 and entitled “Special Review Counterterrorism Detention and Interrogation Activities September 2001 ‑ October 2003”, with appendices A-F, had previously been classified as “top secret”. It was considerably redacted; overall, more than one-third of the 109-page document was blackened out. 35. The report, which covers the period from September 2001 to mid ‑ October 2003, begins with a statement that in November 2002 the CIA Deputy Director for Operations (“the DDO”) informed the Office of Inspector General (“OIG”) that the Agency had established a programme in the CTC “to detain and interrogate terrorists at sites abroad”. 36. The background of the HVD Programme was explained in paragraphs 4-5 as follows: “4. [REDACTED] the Agency began to detain and interrogate directly a number of suspected terrorists. The capture and initial Agency interrogation of the first high ‑ value detainee, Abu Zubaydah, in March 2002, presented the Agency with a significant dilemma. The Agency was under pressure to do everything possible to prevent additional terrorist attacks. Senior Agency officials believed Abu Zubaydah was withholding information that could not be obtained through then-authorized interrogation techniques. Agency officials believed that a more robust approach was necessary to elicit threat information from Abu Zubaydah and possibly from other senior Al ’ Qaeda high value detainees. 5. [REDACTED] The conduct of detention and interrogation activities presented new challenges for CIA. These included determining where detention and interrogation facilities could be securely located and operated, and identifying and preparing qualified personnel to manage and carry out detention and interrogation activities. With the knowledge that Al ’ Qaeda personnel had been trained in the use of resistance techniques, another challenge was to identify interrogation techniques that Agency personnel could lawfully use to overcome the resistance. In this context, CTC, with the assistance of the Office of Technical Service (OTS), proposed certain more coercive physical techniques to use on Abu Zubaydah. All of these considerations took place against the backdrop of pre-September 11, 2001 CIA avoidance of interrogations and repeated US policy statements condemning torture and advocating the humane treatment of political prisoners and detainees in the international community.” 37. As further explained in the 2004 CIA Report, “terrorist targets” and detainees referred to therein were generally categorised as “high value” or “medium value”. This distinction was based on the quality of intelligence that they were believed likely to be able to provide about current terrorist threats against the United States. “Medium-value detainees” were individuals believed to have lesser direct knowledge of terrorist threats but to have information of intelligence value. “High-value detainees” (also called “HVDs”) were given the highest priority for capture, detention and interrogation. In some CIA documents they are also referred to as “high ‑ value targets” (“HVTs”). 2. Enhanced Interrogation Techniques (a) Description of legally sanctioned standard and enhanced interrogation techniques 38. According to the 2004 CIA Report, in August 2002 the US Department of Justice had provided the CIA with a legal opinion determining that 10 specific “Enhanced Interrogation Techniques” (“EITs”), to be applied to suspected terrorists, would not violate the prohibition of torture. 39. The EITs are described in paragraph 36 of the 2004 CIA Report as follows: “[1.] The attention grasp consists of grasping the detainee with both hands, with one hand on each side of the collar opening, in a controlled and quick motion. In the same motion as the grasp, the detainee is drawn toward the interrogator. [2.] During the walling technique, the detainee is pulled forward and then quickly and firmly pushed into a flexible false wall so that his shoulder blades hit the wall. His head and neck are supported with a rolled towel to prevent whiplash. [3.] The facial hold is used to hold the detainee ’ s head immobile. The interrogator places an open palm on either side of the detainee ’ s face and the interrogator ’ s fingertips are kept well away from the detainee ’ s eyes. [4.] With the facial or insult slap, the fingers are slightly spread apart. The interrogator ’ s hand makes contact with the area between the tip of the detainee ’ s chin and the bottom of the corresponding earlobe. [5.] In cramped confinement, the detainee is placed in a confined space, typically a small or large box, which is usually dark. Confinement in the smaller space lasts no more than two hours and in the larger space it can last up to 18 hours. [6.] Insects placed in a confinement box involve placing a harmless insect in the box with the detainee. [7.] During wall standing, the detainee may stand about 4 to 5 feet from a wall with his feet spread approximately to his shoulder width. His arms are stretched out in front of him and his fingers rest on the wall to support all of his body weight. The detainee is not allowed to reposition his hands or feet. [8.] The application of stress positions may include having the detainee sit on the floor with his legs extended straight out in front of him with his arms raised above his head or kneeling on the floor while leaning back at a 45 degree angle. [9.] Sleep deprivation will not exceed 11 days at a time. [10.] The application of the waterboard technique involves binding the detainee to a bench with his feet elevated above his head. The detainee ’ s head is immobilized and an interrogator places a cloth over the detainee ’ s mouth and nose while pouring water onto the cloth in a controlled manner. Airflow is restricted for 20 to 40 seconds and the technique produces the sensation of drowning and suffocation.” 40. Appendix F to the 2004 CIA Report (Draft OMS Guidelines on Medical and Psychological Support to Detainee Interrogations, of 4 September 2003) refers to “legally sanctioned interrogation techniques”. It states, among other things, that “captured terrorists turned over to the CIA for interrogation may be subjected to a wide range of legally sanctioned techniques. ... These are designed to psychologically ‘ dislocate ’ the detainee, maximize his feeling of vulnerability and helplessness, and reduce or eliminate his will to resist ... efforts to obtain critical intelligence”. The techniques included, in ascending degree of intensity: (1) Standard measures (that is, without physical or substantial psychological pressure): shaving; stripping; diapering (generally for periods not greater than 72 hours); hooding; isolation; white noise or loud music (at a decibel level that will not damage hearing); continuous light or darkness; uncomfortably cool environment; restricted diet, including reduced caloric intake (sufficient to maintain general health); shackling in upright, sitting, or horizontal position; water dousing; sleep deprivation (up to 72 hours). (2) Enhanced measures (with physical or psychological pressure beyond the above): attention grasp; facial hold; insult (facial) slap; abdominal slap; prolonged diapering; sleep deprivation (over 72 hours); stress positions: on knees body slanted forward or backward or leaning with forehead on wall; walling; cramped confinement (confinement boxes) and waterboarding. 41. Appendix C to the 2004 CIA Report (Memorandum for John Rizzo Acting General Counsel of the Central Intelligence Agency of 1 August 2002) was prepared by Jay S. Baybee, Assistant Attorney General in connection with the application of the EITs to Abu Zubaydah, the first high ‑ ranking al-Qaeda prisoner who was to be subjected to those interrogation methods. This document, a classified analysis of specific interrogation techniques proposed for use in the interrogation of Abu Zubaydah, was declassified in 2009. It concludes that, given that “there is no specific intent to inflict severe mental pain or suffering ...” the application “of these methods separately or a course of conduct” would not violate the prohibition of torture as defined in section 2340 of title 18 of the United States Code. 42. The US Department of Justice Office of Professional Responsibility Report: “Investigation into the Office of Legal Counsel ’ s Memoranda Concerning Issues Relating to the Central Agency ’ s Use of ‘ Enhanced Interrogation Techniques ’ on Suspected Terrorists” (“the 2009 DOJ Report”) was released by the US authorities in a considerably redacted form in 2010. The report is 260 pages long but all the parts that seem to refer to locations of CIA “black sites” or names of interrogators are redacted. It states, among other things, as follows: “The issue how to approach interrogations reportedly came to a head after the capture of a senior al ’ Qaeda leader, Abu Zubaydah, during a raid in Faisalabad, Pakistan, in late March 2002. Abu Zubaydah was transported to a ‘ black site ’, a secret CIA prison facility [REDACTED] where he was treated for gunshot wounds he suffered during his capture. ...” 43. According to the 2009 DOJ Report, the CIA psychologists eventually proposed twelve EITs to be used in the interrogation of Mr Abu Zubaydah: attention grasp, walling, facial hold, facial or insult slap, cramped confinement, insects, wall-standing, stress positions, sleep deprivation, use of diapers, waterboarding – the name of the twelfth EIT was redacted. (b) Expanding the use of the EITs beyond Abu Zubaydah ’ s interrogations 44. The 2004 CIA Report states that, subsequently, the CIA Office of General Counsel (“OGC”) continued to consult with the US Department of Justice in order to expand the use of EITs beyond the interrogation of Abu Zubaydah. According to the report, “this resulted in the production of an undated and unsigned document entitled Legal principles Applicable to CIA Detention and Interrogation of Captured Al ’ Qaeda Personnel ’ ”. Certain parts of that document are rendered in the 2004 CIA report. In particular, the report cites the following passages: “the [Torture] Convention permits the use of [cruel, inhuman, or degrading treatment] in exigent circumstances, such as a national emergency or war. ... The interrogation of Al ’ Qaeda members does not violate the Fifth and Fourteenth Amendments because those provisions do not apply extraterritorially, nor does it violate the Eighth Amendment because it only applies to persons upon whom criminal sanctions have been imposed. ... The use of the following techniques and of comparable, approved techniques does not violate any Federal statute or other law, where the CIA interrogators do not specifically intend to cause the detainee to undergo severe physical or mental pain or suffering (i.e., they act with the good faith belief that their conduct will not cause such pain or suffering): isolation, reduced caloric intake (so long as the amount is calculated to maintain the general health of the detainees), deprivation of reading material, loud music or white noise (at a decibel level calculated to avoid damage to the detainees ’ hearing), the attention grasp, walling, the facial hold, the facial slap (insult slap), the abdominal slap, cramped confinement, wall standing, stress positions, sleep deprivation, the use of diapers, the use of harmless insects, and the water board.” The report, in paragraph 44, states that according to OGC this analysis embodied the US Department of Justice ’ s agreement that the reasoning of the classified OLC opinion of 1 August 2002 extended beyond the interrogation of Abu Zubaydah and the conditions specified in that opinion. 45. The application of the EITs to other terrorist suspects in CIA custody began in November 2002. 3. Standard procedures and treatment of “high value detainees” in CIA custody (combined use of interrogation techniques) 46. On 30 December 2004 the CIA prepared a background paper on the CIA ’ s combined interrogation techniques (“the 2004 CIA Background Paper”), addressed to D. Levin, the US Acting Assistant Attorney General. The document, originally classified as “top secret” was released on 24 August 2009 in a heavily redacted version. It explains standard authorised procedures and treatment to which high-value detainees – the HVDs – in CIA custody were routinely subjected from their capture, through their rendition and reception at a CIA “black site”, to their interrogation. It “focuses on the topic of combined use of interrogation techniques, [the purpose of which] is to persuade high-value detainees to provide threat information and terrorist intelligence in a timely manner. ... Effective interrogation is based on the concept of using both physical and psychological pressures in a comprehensive, systematic and cumulative manner to influence HVD behaviour, to overcome a detainee ’ s resistance posture. The goal of interrogation is to create a state of learned helplessness and dependence ... The interrogation process could be broken into three separate phases: Initial conditions, transition to interrogation and interrogation” (see also El-Masri, cited above, § 124 ). 47. The first section of the 2004 CIA Background Paper, entitled “Initial Capture”, was devoted to the process of capture, rendition and reception at the “black site”. It states that “regardless of their previous environment and experiences, once a HVD is turned over to CIA a predictable set of events occur”. The capture is designed to “contribute to the physical and psychological condition of the HVD prior to the start of interrogation”. 48. The said “predictable set of events” following the capture started with the rendition, which was described as follows: “a. The HVD is flown to a Black Site. A medical examination is conducted prior to the flight. During the flight, the detainee is securely shackled and is deprived of sight and sound through the use of blindfolds, earmuffs, and hoods. [REDACTED] There is no interaction with the HVD during this rendition movement except for periodic, discreet assessments by the on-board medical officer. b. Upon arrival at the destination airfield, the HVD is moved to the Black Site under the same conditions and using appropriate security procedures.” 49. The description of the next “event” – the reception at the “black site” – reads as follows: “The HVD is subjected to administrative procedures and medical assessment upon arrival at the Black Site. [REDACTED] the HVD finds himself in the complete control of Americans; [REDACTED] the procedures he is subjected to are precise, quiet, and almost clinical; and no one is mistreating him. While each HVD is different, the rendition and reception process generally creates significant apprehension in the HVD because of the enormity and suddenness of the change in environment, the uncertainty about what will happen next, and the potential dread an HVD might have of US custody. Reception procedures include: a. The HVD ’ s head and face are shaved. b. A series of photographs are taken of the HVD while nude to document the physical condition of the HVD upon arrival. c. A Medical Officer interviews the HVD and a medical evaluation is conducted to assess the physical condition of the HVD. The medical officer also determines if there are any contra indications to the use of interrogation techniques. d. A psychologist interviews the HVD to assess his mental state. The psychologist also determines if there are any contra indications to the use of interrogation techniques.” 50. The second section, entitled “Transitioning to Interrogation - The Initial Interview”, deals with the stage before the application of EITs. It reads: “Interrogators use the Initial Interview to assess the initial resistance posture of the HVD and to determine – in a relatively benign environment – if the HVD intends to willingly participate with CIA interrogators. The standard on participation is set very high during the Initial Interview. The HVD would have to willingly provide information on actionable threats and location information on High-Value Targets at large not lower level information for interrogators to continue with the neutral approach. [REDACTED] to HQS. Once approved, the interrogation process begins provided the required medical and psychological assessments contain no contra indications to interrogation.” 51. The third section, “Interrogation”, which is largely redacted, describes the standard combined application of interrogation techniques defined as (1) “existing detention conditions”, (2) “conditioning techniques”, (3) “corrective techniques” and (4) “coercive techniques”. (1) The part dealing with the “existing detention conditions” reads: “Detention conditions are not interrogation techniques, but they have an impact on the detainee undergoing interrogation. Specifically, the HVD will be exposed to white noise/loud sounds (not to exceed 79 decibels) and constant light during portions of the interrogation process. These conditions provide additional operational security: white noise/loud sounds mask conversations of staff members and deny the HVD any auditory clues about his surroundings and deter and disrupt the HVD ’ s potential efforts to communicate with other detainees. Constant light provides an improved environment for Black Site security, medical, psychological, and interrogator staff to monitor the HVD.” (2) The “conditioning techniques” are related as follows: “The HVD is typically reduced to a baseline, dependent state using the three interrogation techniques discussed below in combination. Establishing this baseline state is important to demonstrate to the HVD that he has no control over basic human needs. The baseline state also creates in the detainee a mindset in which he learns to perceive and value his personal welfare, comfort, and immediate needs more than the information he is protecting. The use of these conditioning techniques do not generally bring immediate results; rather, it is the cumulative effect of these techniques, used over time and in combination with other interrogation techniques and intelligence exploitation methods, which achieve interrogation objectives. These conditioning techniques require little to no physical interaction between the detainee and the interrogator. The specific conditioning interrogation techniques are a. Nudity. The HVD ’ s clothes are taken and he remains nude until the interrogators provide clothes to him. b. Sleep Deprivation. The HVD is placed in the vertical shackling position to begin sleep deprivation. Other shackling procedures may be used during interrogations. The detainee is diapered for sanitary purposes; although the diaper is not used at all times. c. Dietary manipulation. The HVD is fed Ensure Plus or other food at regular intervals. The HVD receives a target of 1500 calories per day per OMS guidelines.” (3) The “corrective techniques”, which were applied in combination with the “conditioning techniques”, are defined as those requiring “physical interaction between the interrogator and detainee” and “used principally to correct, startle, or to achieve another enabling objective with the detainee”. They are described as follows: “These techniques – the insult slap, abdominal slap, facial hold, and attention grasp – are not used simultaneously but are often used interchangeably during an individual interrogation session. These techniques generally are used while the detainee is subjected to the conditioning techniques outlined above (nudity, sleep deprivation, and dietary manipulation). Examples of application include: a. The insult slap often is the first physical technique used with an HVD once an interrogation begins. As noted, the HVD may already be nude, in sleep deprivation, and subject to dietary manipulation, even though the detainee will likely feel little effect from these techniques early in the interrogation. The insult slap is used sparingly but periodically throughout the interrogation process when the interrogator needs to immediately correct the detainee or provide a consequence to a detainee ’ s response or non-response. The interrogator will continually assess the effectiveness of the insult slap and continue to employ it so long as it has the desired effect on the detainee. Because of the physical dynamics of the various techniques, the insult slap can be used in combination with water dousing or kneeling stress positions. Other combinations are possible but may not be practical. b. Abdominal Slap. The abdominal slap is similar to the insult slap in application and desired result. It provides the variation necessary to keep a high level of unpredictability in the interrogation process. The abdominal slap will be used sparingly and periodically throughout the interrogation process when the interrogator wants to immediately correct the detainee [REDACTED], and the interrogator will continually assess its effectiveness. Because of the physical dynamics of the various techniques, the abdominal slap can be used in combination with water dousing, stress positions, and wall standing. Other combinations are possible but may not be practical. c. Facial Hold. The facial hold is a corrective technique and is used sparingly throughout interrogation. The facial hold is not painful and is used to correct the detainee in a way that demonstrates the interrogator ’ s control over the HVD [REDACTED]. Because of the physical, dynamics of the various techniques, the facial hold can be used in combination with water dousing, stress positions, and wall standing. Other combinations are possible but may not be practical. d. Attention Grasp. It may be used several times in the same interrogation. This technique is usually applied [REDACTED] grasp the HVD and pull him into close proximity of the interrogator (face to face). Because of the physical dynamics of the various techniques, the attention grasp can be used in combination with water dousing or kneeling stress positions. Other combinations are possible but may not be practical.” (4) The “coercive techniques”, defined as those placing a detainee “in more physical and psychological stress and therefore considered more effective tools in persuading a resistant HVD to participate with CIA interrogators”, are described as follows: “These techniques – walling, water dousing, stress positions, wall standing, and cramped confinement – are typically not used in combination, although some combined use is possible. For example, an HVD in stress positions or wall standing can be water doused at the same time. Other combinations of these techniques may be used while the detainee is being subjected to the conditioning techniques discussed above (nudity, sleep deprivation, and dietary manipulation). Examples of coercive techniques include: a. Walling. Walling is one of the most effective interrogation techniques because it wears down the HVD physically, heightens uncertainty in the detainee about what the interrogator may do to him, and creates a sense of dread when the HVD knows he is about to be walled again. [REDACTED] interrogator [REDACTED]. An HVD may be walled one time (one impact with the wall) to make a point or twenty to thirty times consecutively when the interrogator requires a more significant response to a question. During an interrogation session that is designed to be intense, an HVD will be walled multiple times in the session. Because of the physical dynamics of walling, it is impractical to use it simultaneously with other corrective or coercive techniques. b. Water Dousing. The frequency and duration of water dousing applications are based on water temperature and other safety considerations as established by OMS guidelines. It is an effective interrogation technique and may be used frequently within those guidelines. The physical dynamics of water dousing are such that it can be used in combination with other corrective and coercive techniques. As noted above, an HVD in stress positions or wall standing can be water doused. Likewise, it is possible to use the insult slap or abdominal slap with an HVD during water dousing. c. Stress Positions. The frequency and duration of use of the stress positions are based on the interrogator ’ s assessment of their continued effectiveness during interrogation. These techniques are usually self-limiting in that temporary muscle fatigue usually leads to the HVD being unable to maintain the stress position after a period of time. Stress positions requiring the HVD to be in contact with the wall can be used in combination with water dousing and abdominal slap. Stress positions requiring the HVD to kneel can be used in combination with water dousing, insult slap, abdominal slap, facial hold, and attention grasp. d. Wall Standing. The frequency and duration of wall standing are based on the interrogator ’ s assessment of its continued effectiveness during interrogation. Wall standing is usually self-limiting in that temporary muscle fatigue usually leads to the HVD being unable to maintain the position after a period of time. Because of the physical dynamics of the various techniques, wall standing can be used in combination with water dousing and abdominal slap. While other combinations are possible, they may not be practical. e. Cramped Confinement. Current OMS guidance on the duration of cramped confinement limits confinement in the large box to no more than 8 hours at a time for no more than 18 hours a day, and confinement in the small box to 2 hours. [REDACTED] Because of the unique aspects of cramped confinement, it cannot be used in combination with other corrective or coercive techniques.” 52. The subsequent section of the 2004 CIA Background Paper, entitled “Interrogation – A Day-to-Day Look” sets out a – considerably redacted – “prototypical interrogation” practised routinely at the CIA “black site”, “with an emphasis on the application of interrogation techniques, in combination and separately”. A detailed description of such “prototypical interrogation” can be found in Husayn (Abu Zubaydah) v. Poland (cited above, § 66) and in Al Nashiri v. Poland (cited above, § 68). 53. From the end of January 2003 to September 2006 the rules for CIA interrogations were set out in the Guidelines on Interrogations Conducted Pursuant to the Presidential Memorandum of Notification of 17 September 2001 (“the DCI Interrogation Guidelines”), signed by the CIA Director, George Tenet on 28 January 2003. The 2014 US Senate Committee Report states that, although the above guidelines were prepared as a reaction to the death of one of the HVDs, Gul Rahman, at Detention Site Cobalt and the use of unauthorised interrogation techniques on Mr Al Nashiri at Detention Site Blue (see Al Nashiri v. Poland, cited above, §§ 99-100), they did not reference all interrogation practices that had been employed at CIA detention sites. For instance, they did not address whether techniques such as the “rough take down”, the use of cold water showers and prolonged light deprivation were prohibited. According to the 2014 US Senate Committee Report, the CIA officers had a “significant amount of discretion” in the application of the interrogation measures. The relevant part of the 2014 US Senate Committee Report reads: “[B]y requiring advance approval of ‘ standard techniques ’ ‘ whenever feasible, the guidelines allowed CIA officers a significant amount of discretion to determine who could be subjected to the CIA ’ s ‘ standard ’ interrogation techniques, when those techniques could be applied, and when it was not ‘ feasible ’ to request advance approval from CIA Headquarters. Thus, consistent with the interrogation guidelines, throughout much of 2003, CIA officers (including personnel not trained in interrogation) could, at their discretion, strip a detainee naked, shackle him in the standing position for up to 72 hours, and douse the detainee repeatedly with cold water without approval from CIA Headquarters if those officers judged CIA Headquarters approval was not ‘ feasible ’. In practice, CIA personnel routinely applied these types of interrogation techniques without obtaining prior approval.” 4. Conditions of detention at CIA “Black Sites” 54. From the end of January 2003 to September 2006 the conditions of detention at CIA detention facilities abroad were governed by the Guidelines on Confinement Conditions for CIA Detainees (“the DCI Confinement Guidelines”), signed by the CIA Director, George Tenet, on 28 January 2003. This document, together with the DCI Interrogation Guidelines (see paragraph 53 above), set out the first formal interrogation and confinement guidelines for the HVD Programme. The 2014 US Senate Committee Report relates that, in contrast to earlier proposals of late 2001, when the CIA expected that any detention facility would have to meet US prison standards, the guidelines set forth minimal standards and required only that the facility be sufficient to meet “basic health needs”. According to the report, that meant that even a facility comparable to the “Detention Site Cobalt” in which detainees were kept shackled in complete darkness and isolation, with a bucket for human waste, and without heat during the winter months, met the standard. 55. According to the guidelines, at least the following “six standard conditions of confinement” were in use during that period: (i) blindfolds or hooding designed to disorient the detainee and keep him from learning his location or the layout of the detention facility; (ii) removal of hair upon arrival at the detention facility such that the head and facial hair of each detainee is shaved with an electric shaver, while the detainee is shackled to a chair; (iii) incommunicado, solitary confinement; (iv) continuous noise up to 79dB, played at all times, and maintained in the range of 56-58 dB in detainees ’ cells and 68-72 dB in the walkways; (v) continuous light such that each cell was lit by two 17-watt T-8 fluorescent tube light bulbs, which illuminated the cell to about the same brightness as an office; (vi) use of leg shackles in all aspects of detainee management and movement. 56. The Memorandum for John A. Rizzo, Acting General Counsel at the CIA, entitled “Application of the Detainee Treatment Act to Conditions of Confinement at Central Intelligence Agency Facilities”, dated 31 August 2006, which was released on 24 August 2009 in a heavily redacted form, referred to conditions in which High-Value Detainees were held as follows: “... the CIA detainees are in constantly illuminated cells, substantially cut off from human contact, and under 24-hour-a-day surveillance. We also recognize that many of the detainees have been in the program for several years and thus that we cannot evaluate these conditions as if they have occurred only for a passing moment .... Nevertheless, we recognize that the isolation experienced by the CIA detainees may impose a psychological toll. In some cases, solitary confinement may continue for years and may alter the detainee ’ s ability to interact with others. ...” 5. The scale of the HVD Programme 57. According to the 2014 US Senate Committee Report, the CIA held detainees from 2002 to 2008. Early 2003 was the most active period of the programme. Of the 119 detainees identified by the Senate Intelligence Committee as held by the CIA, fifty-three were brought into custody in 2003. Of thirty-nine detainees who, as found by the Committee, were subjected to the EITs, seventeen were subjected to such methods of interrogation between January 2003 and August 2003. During that time the EITs were primarily used at the Detention Site Cobalt and the Detention Site Blue. 58. The report states that by the end of 2004 the overwhelming majority of CIA detainees – 113 of the 119 identified in the report – had already entered CIA custody. Most of the detainees remaining in custody were no longer undergoing active interrogations; rather, they were infrequently questioned and awaiting a “final disposition”. The CIA took custody of only six new detainees between 2005 and January 2009: four detainees in 2005, one in 2006, and one in 2007. 6. Closure of the HVD Programme 59. On 6 September 2006 President Bush delivered a speech announcing the closure of the HVD Programme. According to information disseminated publicly by the US authorities, no persons were held by the CIA as of October 2006 and the detainees concerned were transferred to the custody of the US military authorities in the US Naval Base in Guantánamo Bay. 60. In January 2009 President Obama signed Executive Order 13491 that prohibited the CIA from holding detainees other than on a “short-term, transitory basis” and limited interrogation techniques to those included in the Army Field Manual. B. The United States Supreme Court ’ s judgment in Rasul v. Bush 61. On 28 June 2004 the Supreme Court gave judgment in Rasul v. Bush, 542 U.S. 466 (2004). It held that foreign nationals detained in the Guantánamo Bay detention camp could petition federal courts for writs of habeas corpus to review the legality of their detention. The relevant part of the syllabus reads as follows: “United States courts have jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad in connection with hostilities and incarcerated at Guantánamo Bay. “(a) The District Court has jurisdiction to hear petitioners ’ habeas challenges under 28 U.S.C. § 2241, which authorizes district courts, within their respective jurisdictions, to entertain habeas applications by persons claiming to be held “ in custody in violation of the ... laws ... of the United States, ” §§ 2241(a), (c)(3). Such jurisdiction extends to aliens held in a territory over which the United States exercises plenary and exclusive jurisdiction, but not ultimate sovereignty. ... ” C. Role of Jeppesen Dataplan, Richmor Aviation and other air companies in the CIA rendition operations 62. According to various reports available in the public domain and material collected during international inquiries concerning the CIA ’ s HDV Programme (see paragraphs 26 9-277 and 2 81-283 below), the CIA used a network of at least twenty-six private planes for their rendition operations. The planes were leased through front companies. The CIA contracts remain classified but parts of the contracts between front companies (such as, for example, Richmor Aviation) and their contractors are publicly available. 1. Jeppesen Dataplan Inc. 63. Jeppesen Dataplan. Inc. is a subsidiary of Boeing based in San Jose, California. According to the company ’ s website, it is an international flight operations service provider that coordinates everything from landing fees to hotel reservations for commercial and military clients. 64. In the light of reports on rendition flights, a unit of the company Jeppesen International Trip Planning Service (JITPS) provided logistical support to the CIA for the renditions of persons suspected of terrorism. 65. In 2007 the American Civil Liberties Union (“ACLU”) filed a federal lawsuit against Jeppesen Dataplan, Inc., on behalf of three extraordinary rendition victims, with the District Court for the Northern District of California. Later, two other persons joined the lawsuit as plaintiffs. The suit charged that Jeppesen knowingly participated in these renditions by providing critical flight planning and logistical support services to aircraft and crews used by the CIA to forcibly disappear these five men to torture, detention and interrogation. In February 2008 the District Court dismissed the case on the basis of “state secret privilege”. In April 2009 the 9 th Circuit Court of Appeals reversed the first-instance decision and remitted the case. In September 2010, on the US Government ’ s appeal, an 11-judge panel of the 9 th Circuit Court of Appeals reversed the decision of April 2009. In May 2011 the US Supreme Court refused the ACLU ’ s request to hear the lawsuit. 2. Richmor Aviation 66. Richmor Aviation is an aircraft company based in Hudson, New York. 67. According to Reprieve, documents detailing Richmor Aviation ’ s involvement in CIA rendition missions were made public by it in 2011. These documents included litigation material concerning a dispute for a breach of contract between Richmor Aviation and Sportsflight, a contractor organising flights. They show that Richmor Aviation was involved in the rendition operations in particular through a Gulfstream jet under their management, N85VM, which was later redesignated as N227SV (see also paragraphs 12 3 -12 5 below). Other planes operated by Richmor Aviation were also involved in the programme. Richmor Aviation became a part of this programme as early as June 2002, when the US government ’ s initial prime contractor DynCorp entered into a single entity charter contract with broker Capital Aviation to supply Richmor Aviation ’ s Gulfstream jet N85VM. Under that contract, Richmor Aviation was subcontracted to perform numerous missions. For instance, Hassan Mustafa Osama Nasr aka Abu Omar ’ s rendition flight from Germany to Egypt on 17 February 2003 was operated by Richmor Aviation on behalf of DynCorp (see also Nasr and Ghali v. Italy, no. 44883/09, §§ 39, 112 and 231, 23 February 2016 ). It is also reported that the CIA, acting through Computer Sciences Corporation (“CSC”), arranged for Richmor Aviation jet N982RK to transfer Mr El ‑ Masri from a CIA “black site” in Afghanistan to Albania (see El ‑ Masri, cited above, § 46). 3. Other companies 68. An inquiry into the alleged existence of CIA secret prisons in Europe launched by the European Parliament (“the Fava Inquiry”; see paragraphs 2 81-284 below) examined, among other things, the use by the CIA of private companies and charter services to carry out the rendition operations. The relevant parts of working document no. 4 produced in the course of the inquiry read as follows: “Within the context of the extraordinary renditions, the CIA had often used private companies and charter services for aircraft rentals. Through the civil aviation it is possible to reach places where the military aircraft would be seen suspiciously. Thanks to the civil aviation, the CIA avoids the duty to provide the information required by States concerning government or military flights. Most of these companies are the so-called shell companies: they only exist on papers (post offices boxes, for instance) or they have a sole employee (normally a lawyer). These shell companies appear the owners of some aircrafts which are systematically object of buy-and-sell operations. After each transaction, planes are re ‑ registered in order to [lose] their tracks. ... Sometimes shell companies used by CIA rely on other real companies endowed with premises and employees (so called: operating companies). These companies are entrusted to stand behind the shell companies; they provide the CIA aircrafts with all necessary logistics (pilots, catering, technical assistance). In some cases the operating companies are directly linked to the CIA. One example is Aero Contractor, a company described by the New York Times as the ‘ major domestic hub of the Central Intelligence Agency ’ s secret air service. The system is well described by the New York Times: ‘ An analysis of thousands of flight records, aircraft registrations and corporate documents, as well as interviews with former C.I.A. officers and pilots, show that the agency owns at least 26 planes, 10 of them purchased since 2001. The agency has concealed its ownership behind a web of seven shell corporations that appear to have no employees and no function apart from owning the aircraft. The planes, regularly supplemented by private charters, are operated by real companies controlled by or tied to the agency, including Aero Contractors and two Florida companies, Pegasus Technologies and Tepper Aviation. ’ Finally, in other cases, the CIA leases airplanes from normal charter agents, as it is the case for Richmor Aviation. Richmor Aviation is one of the oldest charter and flight management companies. The Gulfstream IV, N85VM belongs to Richmor Aviation (plane involved in the abduction of Abu Omar). Ultimately, in this inextricable net, there is also the possibility that single aircrafts change their registration numbers (as for the Gulfstrean V, from Richmor Aviation, registered as N379P, then, N8068V and then N44982). There are indeed 51 airplanes alleged to be used in the extraordinary renditions, but, according the Federal Aviation Administration records, there would be 57 registration numbers. It comes out that some of them are registered more than once. Among the 51 airplanes alleged to be used by CIA: 26 planes are registered to shell companies and sometimes supported by operating companies. 10 are designed as ‘ CIA frequent flyers, they belong to Blackwater USA, an important CIA and US Army ‘ classified contractor ’. It provides staff, training and aviation logistic. In this case there is no intermediation of shell companies. The other 15 planes are from occasional rental from private companies working with CIA as well as with other customers.” 69. The document listed the following operating companies involved in the rendition operations: Aero Contractors, Ltd; Tepper Aviation; Richmor Aviation; and subsidiaries of Blackwater USA. Aero Contractors was the operating company for the following shell companies: Steven Express Leasing Inc., Premier Executive Transport Service, Aviation Specialties Inc. and Devon Holding and Leasing Inc. D. Review of the CIA ’ s activities involved in the HVD Programme in 2001-2009 by the US Senate 1. Course of the review 70. In March 2009 the US Senate Intelligence Committee initiated a review of the CIA ’ s activities involved in the HVD Programme, in particular the secret detention at foreign “black sites” and the use of the EITs. That review originated in an investigation that had begun in 2007 and concerned the CIA ’ s destruction of videotapes documenting interrogations of Abu Zubaydah and Al Nashiri at Detention Site Green (see also paragraphs 2 4 above and 94-96 and 16 6 below).. The destruction was carried out in November 2005. 71. The Committee ’ s “Study of the Central Intelligence Agency ’ s Detention and Interrogation” was finished towards the end of 2012. The document describes the CIA ’ s HVD Programme between September 2001 and January 2009. It examined operations at overseas CIA clandestine detention facilities, the use of the EITs and conditions of 119 known individuals detained by CIA during that period (see also paragraphs 2 2-24 above). The US Senate Committee on Intelligence, together with their staff, reviewed thousands of CIA cables describing the interrogations of Abu Zubaydah, Al Nashiri and other CIA prisoners, and more that than six million pages of CIA material, including operational cables, intelligence reports, internal memoranda and emails, briefing materials, interview transcripts, contracts and other records. 72. On 3 April 2014 the Intelligence Committee decided to declassify the report ’ s executive summary and twenty findings and conclusions. In this connection, Senator Dianne Feinstein issued a statement which read, in so far as relevant, as follows: “The Senate Intelligence Committee this afternoon voted to declassify the 480-page executive summary as well as 20 findings and conclusions of the majority ’ s five-year study of the CIA Detention and Interrogation Program, which involved more than 100 detainees. The purpose of this review was to uncover the facts behind this secret program, and the results were shocking. The report exposes brutality that stands in stark contrast to our values as a nation. It chronicles a stain on our history that must never again be allowed to happen. ... The report also points to major problems with CIA ’ s management of this program and its interactions with the White House, other parts of the executive branch and Congress. This is also deeply troubling and shows why oversight of intelligence agencies in a democratic nation is so important. ... The full 6,200-page full report has been updated and will be held for declassification at a later time.” The executive summary with findings and conclusions was released on 9 December 2014 (see also paragraph 2 2 above). 73. The passages of the 2014 US Senate Committee Report relating to Mr Abu Zubaydah ’ s secret detention relevant for the present case are rendered below (see paragraphs 7 6, 80-81 and 92-96 below). 2. Findings and conclusions 74. The Committee made twenty findings and conclusions. They can be summarised, in so far as relevant, as follows. 75. Conclusion 2 states that “the CIA ’ s justification for the use of its enhanced interrogation techniques rested on inaccurate claims of their effectiveness”. 76. Conclusion 3 states that “[t]he interrogations of the CIA were brutal and far worse than the CIA represented to policymakers and others”. In that regard several references are made to Mr Abu Zubaydah ’ s treatment and interrogations: “Beginning with the CIA ’ s first detainee, Abu Zubaydah, and continuing with numerous others, the CIA applied its enhanced interrogation techniques with significant repetition for days or weeks at a time. Interrogation techniques such as slaps and ‘ wallings ’ (slamming detainees against a wall) were used in combination, frequently concurrent with sleep deprivation and nudity. Records do not support CIA representations that the CIA initially used an ‘ an open, nonthreatening approach ’, or that interrogations began with the ‘ least coercive technique possible ’ and escalated to more coercive techniques only as necessary. The waterboarding technique was physically harmful, inducing convulsions and vomiting. Abu Zubaydah, for example, became ‘ completely unresponsive, with bubbles rising through his open, full mouth ’. Internal CIA records describe the waterboarding of Khaled Shaykh Mohammad as evolving into a ‘ series of near drownings ’. Sleep deprivation involved keeping detainees awake for up to 180 hours, usually standing or in stress positions, at times with their hands shackled above their heads. At least five detainees experienced disturbing hallucinations during prolonged sleep deprivation and, in at least two of those cases, the CIA nonetheless continued the sleep deprivation. Contrary to CIA representations to the Department of Justice, the CIA instructed personnel that the interrogation of Abu Zubaydah would take ‘ precedence ’ over his medical care, resulting in the deterioration of a bullet wound Abu Zubaydah incurred during his capture. ... ” 77. Conclusion 4 states that “the conditions of confinement for CIA detainees were harsher than the CIA had represented to the policymakers and others” and that “conditions at CIA detention sites were poor, and were especially bleak early in the programme”. As regards conditions at later stages, the following findings were made: “Even after the conditions of confinement improved with the construction of new detention facilities, detainees were held in total isolation except when being interrogated or debriefed by CIA personnel. Throughout the program, multiple CIA detainees who were subjected to the CIA ’ s enhanced interrogation techniques and extended isolation exhibited psychological and behavioral issues, including hallucinations, paranoia, insomnia, and attempts at self-harm and self-mutilation. Multiple psychologists identified the lack of human contact experienced by detainees as a cause of psychiatric problems.” 78. Conclusion 8 states that “the CIA operation and management of the program complicated, and in some cases impeded, the national security missions of other Executive Branch Agencies”, including the Federal Bureau of Investigation (“the FBI”), the State Department and the Office of the Director of National Intelligence (“the ODNI”). In particular, the CIA withheld or restricted information relevant to these agencies ’ missions and responsibilities, denied access to detainees, and provided inaccurate information on the HVD Programme to them. 79. The findings under Conclusion 8 also state that, while the US authorities ’ access to information about “black sites” was restricted or blocked, the local authorities in countries hosting CIA secret detention facilities were generally informed of their existence. In that respect, it is stated: “The CIA blocked State Department leadership from access to information crucial to foreign policy decision-making and diplomatic activities. The CIA did not inform two secretaries of state of locations of CIA detention facilities, despite the significant foreign policy implications related to the hosting of clandestine CIA detention sites and the fact that the political leaders of host countries were generally informed of their existence. Moreover, CIA officers told U.S. ambassadors not to discuss the CIA program with State Department officials, preventing the ambassadors from seeking guidance on the policy implications of establishing CIA detention facilities in the countries in which they served. In two countries, U.S. ambassadors were informed of plans to establish a CIA detention site in the countries where they were serving after the CIA had already entered into agreements with the countries to host the detention sites. In two other countries where negotiations on hosting new CIA detention facilities were taking place, the CIA told local government officials not to inform the U.S. ambassadors.” 80. Conclusion 11 states that “the CIA was unprepared as it began operating its Detention and Interrogation Program more than six months after being granted detention authorities”. In that regard, references are made to the applicant, stating that “the CIA was not prepared to take custody of its first detainee”, Abu Zubaydah, and lacked a plan for the eventual disposition of its detainees. After taking custody of Abu Zubaydah, CIA officers concluded that he “should remain incommunicado for the remainder of his life”, which “may preclude [his] being turned over to another country”. Also, as interrogations started, the CIA deployed persons who lacked relevant training and experience. 81. According to Conclusion 13, “two contract psychologists devised the CIA enhanced interrogation techniques and played a central role in the operation, assessment and management of the [programme]”. It was confirmed that “neither psychologist had any experience as an interrogator. Nor did either have specialised knowledge of Al-Qa ’ ida, a background in counter-terrorism, or any relevant or cultural or linguistic expertise”. The contract psychologists developed theories of interrogation based on “learned helplessness” and developed the list of EITs approved for use against Abu Zubaydah and other detainees. 82. Conclusion 14 states that “CIA detainees were subjected to coercive interrogation techniques that had not been approved by the Department of Justice or had not been authorised by the CIA Headquarters”. It was confirmed that prior to mid-2004 the CIA routinely subjected detainees to nudity and dietary manipulation. The CIA also used abdominal slaps and cold water dousing on several detainees during that period. None of these techniques had been approved by the Department of Justice. At least seventeen detainees were subjected to the EITs without authorisation from CIA Headquarters. 83. Conclusion 15 states that “the CIA did not conduct a comprehensive or accurate accounting of the number of individuals it detained, and held individuals who did not meet the legal standard for detention”. It was established that the CIA had never conducted a comprehensive audit or developed a complete and accurate list of the persons it had detained or subjected to the EITs. The CIA statements to the Committee and later to the public that the CIA detained fewer than 100 individuals, and that less than a third of those 100 detainees were subjected to the CIA ’ s EITs, were inaccurate. The Committee ’ s review of CIA records determined that the CIA detained at least 119 individuals, of whom at least thirty-nine were subjected to the CIA ’ s enhanced interrogation techniques. Of the 119 known detainees, at least twenty-six were wrongfully held and did not meet the detention standard in the MON (see paragraph 2 6 above). 84. Conclusion 19 states that “the CIA ’ s Detention and Interrogation Program was inherently unsustainable and had effectively ended by 2006 due to unauthorized press disclosures, reduced cooperation from other nations, and legal and oversight concerns”. 85. It was established that the CIA required secrecy and cooperation from other nations in order to operate clandestine detention facilities. According to the 2014 US Senate Committee Report, both had eroded significantly before President Bush publicly disclosed the programme on 6 September 2006 (see also paragraph 5 9 above). From the beginning of the programme, the CIA faced significant challenges in finding nations willing to host CIA clandestine detention sites. These challenges became increasingly difficult over time. With the exception of one country (whose name was redacted) the CIA was forced to relocate detainees out of every country in which it established a detention facility because of pressure from the host government or public revelations about the program. Moreover, lack of access to adequate medical care for detainees in countries hosting the CIA ’ s detention facilities caused recurring problems. The refusal of one host country to admit a severely ill detainee into a local hospital due to security concerns contributed to the closing of the CIA ’ s detention facility in that country. 86. In early 2004, the anticipation of the US Supreme Court ’ s decision to grant certiorari in the case of Rasul v. Bush (see also paragraph 61 above) prompted the CIA to move detainees out of a CIA detention facility at Guantánamo Bay, Cuba. In mid-2004 the CIA temporarily suspended the use of the EITs after the CIA Inspector General recommended that the CIA seek an updated legal opinion from the Office of Legal Counsel. In late 2005 and in 2006, the Detainee Treatment Act and then the US Supreme Court decision in Hamdan v. Rumsfeld (548 U.S. 557,635 (2006)) caused the CIA to again temporarily suspend the use of the EITs. In Hamdan v. Rumsfeld the US Supreme Court ruled that the Guantánamo military commission set up to try terrorist-suspects captured during the “war on terror” “lack[ed] the power to proceed because its structure and procedures violate[d] both the UCMJ [Uniform Code of military Justice] and the four Geneva Conventions signed in 1949” (for further details see Husayn (Abu Zubaydah) v. Poland, cited above, §§ 73-75). 87. According to the report, by 2006, press disclosures, the unwillingness of other countries to host existing or new detention sites, and legal and oversight concerns had largely ended the CIA ’ s ability to operate clandestine detention facilities. By March 2006 the program was operating in only one country. The CIA last used its EITs on 8 November 2007. The CIA did not hold any detainees after April 2008. 88. Finally, Conclusion 20 states that “the CIA ’ s Detention and Interrogation Program damaged the United States ’ standing in the world, and resulted in other significant monetary and non-monetary costs”. It was confirmed that, as the CIA records indicated, the HVD Programme costed well over USD 300 million in non-personnel costs. This included funding for the CIA to construct and maintain detention facilities, including two facilities costing nearly [number redacted] million that were never used, in part due to the host country ’ s political concerns. 89. According to the 2014 US Senate Committee Report: “to encourage governments to clandestinely host CIA detention sites, or to increase support for existing sites, the CIA provided millions of dollars in cash payments to foreign government officials. The CIA Headquarters encouraged CIA Stations to construct ‘ wish lists ’ of proposed financial assistance to [phrase REDACTED] [entities of foreign governments] and to ‘ think big ’ in terms of that assistance”. IV. THE PARTICULAR CIRCUMSTANCES OF THE CASE A. Restrictions on information about the applicant ’ s secret detention and his communication with the outside world 90. In the application and further written pleadings, the applicant ’ s lawyers stressed that restrictions on information regarding the entirety of Abu Zubaydah ’ s detention necessarily meant that the case presented a range of complex, unusual and at times unique characteristics that the Court should be aware of in its consideration. In their view, several factors heightened the already significant challenges related to uncovering and presenting evidence in the case. First, the clandestine nature of the rendition operations coupled with a concerted cover-up intended to withhold or destroy any evidence relating to the rendition programme inherently limited the applicant ’ s ability to produce evidence in his case. Second, the lack of any meaningful investigation by the Lithuanian authorities, in whose hands much of the necessary information rested, impeded access to evidence and information. Third, they referred to what they called “the unprecedented restrictions on communication” between Mr Abu Zubaydah, his counsel and the Court, which “precluded the presentation of information or evidence directly from or in relation to the client”. Only the applicant ’ s US counsel with top-secret security clearance could meet with the applicant and all information obtained from him was presumptively classified. In consequence, counsel could not disclose to other members of the legal team or to the Court any information obtained from the applicant or other classified sources without obtaining the declassification of that information by the US authorities. According to the applicant ’ s lawyers, “Abu Zubaydah [was] a man deprived of his voice, barred from communicating with the outside world or with this Court and from presenting evidence in support of his case”. For that reason, his story was therefore to be told and the case was presented on his behalf by reference principally to publicly available documentation (see also Husayn ( Abu Zubaydah) v. Poland, cited above, § 80). B. The applicant ’ s capture, transfer to CIA custody, secret detention and transfers from 27 March 2002 to 22 September 2003, as established by the Court in Husayn (Abu Zubaydah) v. Poland and supplemented by the 2014 US Senate Committee Report 91. As regards the events preceding the applicant ’ s secret detention in Poland, i.e. his capture in Faisalabad, Pakistan on 27 March 2002 and his initial detention from that date to 4 December 2002, in Husayn (Abu Zubaydah) v. Poland the Court held as follows: “404. In the light of the above first-hand CIA documentary evidence and clear and convincing expert evidence, the Court finds established beyond reasonable doubt that the applicant, following his capture on 27 March 2002, was detained in the CIA detention facility in Bangkok from an unknown date following his capture to 4 December 2002, that Mr Al Nashiri was also held in the same facility from 15 November 2002 to 4 December 2002 and that they were both moved together to ‘ another CIA black site ’ on 4 December 2002 (see also Al Nashiri, cited above, § 404).” The experts, Senator Marty and Mr J.G.S., heard by the Court at the fact ‑ finding hearing in Husayn (Abu Zubaydah) v. Poland and Al Nashiri v. Poland identified the detention facility in Bangkok, Thailand as the one referred to in CIA declassified documents under the codename “Cat ’ s Eye” or “Catseye” (see Husayn (Abu Zubaydah) v. Poland, cited above, § 403; and Al Nashiri v. Poland, cited above, § 403). In the 2014 US Senate Committee Report that facility is referred to as “Detention Site Green”. 92. The 2014 US Senate Committee Report relates the events concerning the applicant ’ s capture and initial detention as follows: “In late March 2002, Pakistani government authorities, working with the CIA, captured Qa ’ ida facilitator Abu Zubaydah in a raid during which Abu Zubaydah suffered bullet wounds. At that time, Abu Zubaydah was assessed by CIA officers in ALEC Station, the office within the CIA with specific responsibility for al-Qa ’ ida, to possess detailed knowledge of al-Qa ’ ida terrorist attack plans. However, as is described in greater detail in the full Committee Study, this assessment significantly overstated Abu Zubaydah ’ s role in al-Qa ’ ida and the information he was likely to possess. ... In late March 2002, anticipating its eventual custody of Abu Zubaydah, the CIA began considering options for his transfer to CIA custody and detention under the MON. The CIA rejected U.S. military custody [REDACTED] in large part because of the lack of security and the fact that Abu Zubaydah would have to be declared to the International Committee of the Red Cross (ICRC). The CIA ’ s concerns about custody at Guantánamo Bay, Cuba, included the general lack of secrecy and the ‘ possible loss of control to US military and/or FBI ’. ... Over the course of four days, the CIA settled on a detention site in Country [REDACTED] because of that country ’ s [REDACTED] and the lack of U.S. court jurisdiction. The only disadvantages identified by the CIA with detention in Country [REDACTED] were that it would not be a ‘ USG-controlled facility ’ and that ‘ diplomatic/policy decisions ’ would be required. As a[t] March 28, 2002, CIA document acknowledged, the proposal to render Abu Zubaydah to Country [name REDACTED] had not yet been broached with that country ’ s officials. ... The decision to detain Abu Zubaydah at a covert detention facility in Country [REDACTED] did not involve the input of the National Security Council Principals Committee, the Department of State, the U.S. ambassador, or the CIA chief of Station in Country. On March 29, 2002, an email from the Office of the Deputy DCI stated that ‘ [w]e will have to acknowledge certain gaps in our planning/preparations, but this is the option the DDCI will lead with for POTUS consideration ’. That morning, the president approved moving forward with the plan to transfer Abu Zubaydah to Country [REDACTED]. During the same Presidential Daily Brief (PDB) session, Secretary of Defense Rumsfeld suggested exploring the option of putting Abu Zubaydah on a ship; however, CIA records do not indicate any further input from the principals. That day, the CIA Station in Country obtained the approval of Country ’ s [REDACTED] officials for the CIA detention site. ... Shortly thereafter, Abu Zubaydah was rendered from Pakistan to Country [REDACTED] where he was held at the first CIA detention site, referred to in this summary as ‘ DETENTION SITE GREEN ’ .” 93. The report cited a CIA cable dated April 2002 relating the applicant ’ s physical conditions of detention as follows: “[REDACTED] a cable described Abu Zubaydah ’ s cell as white with no natural lighting or windows, but with four halogen lights pointed into the cell. An air conditioner was also in the room. A white curtain separated the interrogation room from the cell. The interrogation cell had three padlocks. Abu Zubaydah was also provided with one of two chairs that were rotated based on his level of cooperation (one described as more comfortable than the other). Security officers wore all black uniforms, including boots, gloves, balaclavas, and goggles to keep Abu Zubaydah from identifying the officers, as well as to prevent Abu Zubaydah ‘ from seeing the security guards as individuals who he may attempt to establish a relationship or dialogue with ’. The security officers communicated by hand signals when they were with Abu Zubaydah and used hand-cuffs and leg shackles to maintain control. In addition, either loud rock music was played or noise generators were used to enhance Abu Zubaydah ’ s ‘ sense of hopelessness ’. Abu Zubaydah was typically kept naked and sleep deprived.” 94. The report states that on 3 August 2002 the CIA Headquarters informed the interrogation team at Detention Site Green that it had formal approval to apply the EITs, including waterboarding, against Abu Zubaydah. After Abu Zubaydah had been held in complete isolation for forty-seven days, the most aggressive interrogation phase began “at approximately 11:50 a.m. on August 4, 2002”. The report gives the following description of that particular interrogation session: “Security personnel entered the cell, shackled and hooded Abu Zubaydah, and removed his towel (Abu Zubaydah was then naked). Without asking any questions, the interrogators placed a rolled towel around his neck as a collar, and backed him up into the cell wall (an interrogator later acknowledged the collar was used to slam Abu Zubaydah against a concrete wall). The interrogators then removed the hood, performed an attention grab, and had Abu Zubaydah watch while a large confinement box was brought into the cell and laid on the floor. A cable states Abu Zubaydah ‘ was unhooded and the large confinement box was carried into the interrogation room and paced [ sic ] on the floor so as to appear as a coffin ’. The interrogators then demanded detailed and verifiable information on terrorist operations planned against the United States, including the names, phone numbers, email addresses, weapon caches, and safe houses of anyone involved. CIA records describe Abu Zubaydah as appearing apprehensive. Each time Abu Zubaydah denied having additional information, the interrogators would perform a facial slap or face grab. At approximately 6:20 PM, Abu Zubaydah was waterboarded for the first time. Over a two-and-a half-hour period, Abu Zubaydah coughed, vomited, and had ‘ involuntary spasms of the torso and extremities ’ during waterboarding. Detention site personnel noted that ‘ throughout the process [Abu Zubaydah] was asked and given the opportunity to respond to questions about threats ’ to the United States, but Abu Zubaydah continued to maintain that he did not have any additional information to provide.” 95. From 4 August to 23 August 2002 the CIA interrogators subjected Abu Zubaydah to EITs on a near 24-hour-per-day basis. The report relates the following facts: “The use of the CIA ’ s enhanced interrogation techniques – including ‘ walling, attention grasps, slapping, facial hold, stress positions, cramped confinement, white noise and sleep deprivation ’ – continued in ‘ varying combinations, 24 hours a day ’ for 17 straight days, through August 20, 2002. When Abu Zubaydah was left alone during this period, he was placed in a stress position, left on the waterboard with a cloth over his face, or locked in one of two confinement boxes. According to the cables, Abu Zubaydah was also subjected to the waterboard ‘ 2-4 times a day ... with multiple iterations of the watering cycle during each application ’. The ‘ aggressive phase of interrogation ’ continued until August 23, 2002. Over the course of the entire 20 day ‘ aggressive phase of interrogation ’, Abu Zubaydah spent a total of 266 hours (11 days, 2 hours) in the large (coffin size) confinement box and 29 hours in a small confinement box, which had a width of 21 inches, a depth of 2.5 feet, and a height of 2.5 feet. The CIA interrogators told Abu Zubaydah that the only way he would leave the facility was in the coffin-shaped confinement box. According to the daily cables from DETENTION SITE GREEN, Abu Zubaydah frequently ‘ cried ’, ‘ begged ’, ‘ pleaded ’, and ‘ whimpered ’, but continued to deny that he had any additional information on current threats to, or operatives in, the United States. By August 9, 2002, the sixth day of the interrogation period, the interrogation team informed CIA Headquarters that they had come to the ‘ collective preliminary assessment ’ that it was unlikely Abu Zubaydah ‘ had actionable new information about current threats to the United States ’. On August 10, 2002, the interrogation team stated that it was ‘ highly unlikely ’ that Abu Zubaydah possessed the information they were seeking. ... [REDACTED] DETENTION SITE GREEN cables describe Abu Zubaydah as ‘ compliant ’, informing CIA Headquarters that when the interrogator ‘ raised his eyebrow, without instructions ’, Abu Zubaydah ‘ slowly walked on his own to the water table and sat down ’. When the interrogator ‘ snapped his fingers twice ’, Abu Zubaydah would lie flat on the waterboard. Despite the assessment of personnel at the detention site that Abu Zubaydah was compliant, CIA Headquarters stated that they continued to believe that Abu Zubaydah was withholding threat information and instructed the CIA interrogators to continue using the CIA ’ s enhanced interrogation techniques. [REDACTED] At times Abu Zubaydah was described as ‘ hysterical ’ and ‘ distressed to the level that he was unable to effectively communicate ’. Waterboarding sessions ‘ resulted in immediate fluid intake and involuntary leg, chest and arm spasms ’ and ‘ hysterical pleas ’. In at least one waterboarding session, Abu Zubaydah ‘ became completely unresponsive, with bubbles rising through his open, full mouth ’. According to CIA records, Abu Zubaydah remained unresponsive until medical intervention, when he regained consciousness and expelled ‘ copious amounts of liquid ’ .” According to the report, “CIA records indicate that Abu Zubaydah never provided the information for which the CIA ’ s enhanced interrogation techniques were justified and approved”. Furthermore, “as compared to the period prior to August 2002, the quantity and type of intelligence produced by Abu Zubaydah remained largely unchanged during and after the August 2002 use of the CIA enhanced interrogation techniques”. 96. The report also confirms that Abu Zubaydah and Al Nashiri were held at Detention Site Green until its closure in December 2002 and that they were then moved together to another CIA detention facility, Detention Site Blue. The relevant part of the report reads as follows: “In December 2002, when DETENTION SITE GREEN was closed, Al Nashiri and Abu Zubaydah were rendered to DETENTION SITE BLUE.” 97. As regards the events after 4 December 2002, in Husayn (Abu Zubaydah) v. Poland (§ 419) the Court held: “419. Assessing all the above facts and evidence as a whole, the Court finds it established beyond reasonable doubt that: (1) on 5 December 2002 the applicant, together with Mr Al Nashiri arrived in Szymany on board the CIA rendition aircraft N63MU; (2) from 5 December 2002 to 22 September 2003 the applicant was detained in the CIA detention facility in Poland identified as having the codename ‘ Quartz ’ and located in Stare Kiejkuty; (3) during his detention in Poland under the HVD Programme he was ‘ debriefed ’ by the CIA interrogation team and subjected to the standard procedures and treatment routinely applied to High-Value Detainees in the CIA custody, as defined in the relevant CIA documents; (4) on 22 September 2003 the applicant was transferred by the CIA from Poland to another CIA secret detention facility elsewhere on board the rendition aircraft N313P.” 98. The events that took place between 5 December 2002 and 22 September 2003 at the CIA detention facility code-named “Quartz” and located in Poland correspond to the events that the 2014 US Senate Committee Report relates as occurring at “Detention Site Blue” (see paragraphs 2 4 above and 16 6 below; see also Al Nashiri v. Romania, cited above, § 10 1 ). C. The applicant ’ s transfers and detention between his rendition from Poland on 22 September 2003 and his alleged rendition to Lithuania on 17 February or 18 February 2005 as established by the Court in Husayn (Abu Zubaydah) v. Poland, reconstructed on the basis of the 2014 US Senate Committee Report and other documents and as corroborated by experts heard by the Court 99. The applicant submitted that on 22 September 2003 he had been transferred from Poland to a CIA detention facility at Guantánamo Bay. In Spring 2004, in anticipation of the US Supreme Court ’ s ruling in Rasul v. Bush granting Guantánamo detainees the right to legal counsel and habeas corpus review of their detention in a US federal court (see also paragraph 6 1 above), he had again been secretly transferred, this time to a facility in Morocco, where he had been detained incommunicado for almost a year. 100. In that regard, he relied on a July 2011 report by the Associated Press stating that “according to two former US intelligence officials” Abu Zubaydah had been held in “a secret prison in Lithuania”. Another press report indicated that his detention in Lithuania had followed his detention in Morocco. 101. On the basis of their investigations, research and various material in the public domain, the experts heard by the Court at the fact-finding hearing reconstructed the chronology of the applicant ’ s transfers and identified the countries of his secret detention in the period from 22 September 2003 to 17-18 February 2005. 102. In the light of the material in the Court ’ s possession the chronology of the applicant ’ s detention can be described as follows. 103. In Husayn (Abu Zubaydah) the Court, in its findings as to the applicant ’ s transfer out of Poland considered, among other things, the collation of data from multiple sources, including flight plan messages concerning the N313P flight circuit executed through Poland on 22 September 2003 (see Husayn (Abu Zubaydah) v. Poland, cited above, § 109). Those data showed that N313P had travelled the following routes: Take-off Destination Date of flight Washington, DC (KIAD) Prague, Czech Republic (LKPR) 21 Sept 2003 Prague, Czech Republic (LKPR) Tashkent, Uzbekistan (UTTT) 22 Sept 2003 Tashkent, Uzbekistan (UTTT) Kabul, Afghanistan (OAKB) 21 Sept 2003 Kabul, Afghanistan (OAKB) Szymany, Poland (EPSY) 22 Sept 2003 Szymany, Poland (EPSY) Constanţa, Romania (LRCK) 22 Sept 2003 Constanţa, Romania (LRCK) Rabat, Morocco (GMME) 23 Sept 2003 Rabat, Morocco (GMME) Guantánamo Bay, Cuba (MUGM) 24 Sept 2003 104. Mr J.G.S., at the fact-finding hearing in the above case testified as follows (ibid. § 312): “One flight circuit however is of particular significance and this is the final part of our presentation in which we would like to discuss how the detention operations in Poland were brought to an end. In September 2003 the CIA rendition and detention programme underwent another overhaul analogous to the one which had taken place in December 2002 when Mr Nashiri and Mr Zubaydah were transferred from Thailand to Poland. On this occasion, the CIA executed a rendition circuit which entailed visiting no fewer than five secret detention sites at which CIA detainees were held. These included, in sequence, Szymany in Poland, Bucharest in Romania, Rabat in Morocco and Guantánamo Bay, a secret CIA compartment of Guantánamo Bay, having initially commenced in Kabul, Afghanistan. On this particular flight route, it has been found that all of the detainees who remained in Poland at that date were transferred out of Poland and deposited into the successive detention facilities at the onward destinations: Bucharest, Rabat and Guantánamo. Among those persons was one of the applicants today, Mr Zubaydah, who was taken on that date from Poland to Guantánamo Bay. This particular flight circuit was again disguised by dummy flight planning although significantly not in respect of Poland. It was the sole official declaration of Szymany as a destination in the course of all the CIA ’ s flights into Poland. The reason therefor being that no detainee was being dropped off in Szymany on the night of 22 September and the methodology of disguising flight planning pertained primarily to those renditions which dropped a detainee off at the destination. Since this visit to Szymany was comprised solely of a pick-up of the remaining detainees, the CIA declared Szymany as a destination, openly, and instead disguised its onward destinations of Bucharest and Rabat, hence demonstrating that the methodology of disguised flight planning continued for the second European site in Bucharest, Romania and indeed for other detention sites situated elsewhere in the world.” 105. At the fact-finding hearing in the present case, in the course of the PowerPoint presentation, Mr J.G.S. testified as follows: “ Abu Zubaydah was the first high value detainee, he was arrested in late March 2002 in an operation in Faisalabad, Pakistan and was initially held in Thailand. We have established before this Court the mode of his transfer to Europe. First to Poland on 5 December 2002 and he was detained in that site for 292 days. ... We know that when he departed Poland on 22 September 2003 upon the closure of the site, that he did not go to Romania directly, he was rather held in both Guantánamo Bay, at the CIA facility there, and in Rabat – Morocco, for a period of over one year after his departure from Poland. Unlike Mr Nashiri whom we refer to in earlier proceedings [ Al Nashiri v. Romania ], when Zubaydah left Guantánamo he was taken back to the same site in Morocco at which he had previously been detained, Rabat – Morocco, the site which had been the subject of some acrimonious relations between the CIA and its Moroccan counterparts. It was in this site that Mr Zubaydah found himself in early 2005, specifically February 2005, when the aforementioned clear-out of Morocco took place and, as I stated, and connected with specific flight paths, the destination of his transfer out of Morocco was Lithuania.” 106. Mr J.G.S. further explained that the applicant was transferred from Guantánamo to Rabat on board rendition plane N85VM on 27 March 2004 and provided details of the flight circuit executed by that plane. In Mr J.G.S. ’ description, “the CIA facility at Guantánamo was cleared in March-April 2004 as the CIA sought to evade justice”; in this respect he referred to the passage in the 2014 US Senate Report speaking of moving the CIA detainees from Guantánamo in anticipation of the US Supreme Court ’ s ruling in Rasul v. Bush (see also paragraph 6 1 above and paragraph 1 10 below). 107. The N85VM flight on 27 March 2004 was the first part of the CIA double rendition circuit performed by that plane between 27 March and 13 April 2004. On the first circuit some prisoners, including the applicant, were transferred from Guantánamo to Rabat directly. The plane then returned to Washington on 29 March 2004. The second part of the circuit took place between 12 and 13 April 2004 and N85VM brought the remaining prisoners from Guantánamo via Tenerife, Spain to the CIA secret prison in Bucharest, Romania, returning to Washington via Rabat on 13 April 2004 (see also Al Nashiri v. Romania, no. 33234/12, §§ 11 9 -12 0, 31 May 2018 ). 108. Mr Black, at the fact-finding hearing, testified as follows: “We know that Abu Zubaydah was in Poland and that he was transferred out of Poland in September 2003. The transfer that took him out of Poland in September 2003 had two possible destinations, one of which was Romania and one of which was Guantánamo Bay. Prima facie it is possible that he could have gone to either. In 2011 I received an off-the-record briefing and my take-away from this briefing, which I believe to be accurate, was that in the Summer of 2005 or before that Abu Zubaydah had not been held in Romania. It follows from this that Abu Zubaydah must therefore have been taken to Guantánamo on that flight in September 2003. We know that everyone who was taken there had to be moved out in March or April 2004. They were taken to Morocco. We also know that after a certain time in Morocco, the CIA had too many disagreements with the Moroccan Intelligence Agencies with regard to the treatment of prisoners in Morocco. This is dealt with at some length in the Senate Report. And so everyone who was in Morocco was moved out at the latest in February 2005.” 109. The 2014 US Senate Committee Report ’ s section entitled “Country [name REDACTED] Detains Individuals on the CIA ’ s Behalf” reads, in so far as relevant, as follows: “ Consideration of a detention facility in Country [REDACTED] began in [month REDACTED] 2003, when the CIA sought to transfer Ramzi bin al-Shibh from the custody of a foreign government to CIA custody [REDACTED] which had not yet informed the country ’ political leadership of the CIA ’ s request to establish a clandestine detention facility in Country [REDACTED], surveyed potential sites for the facility, while the CIA set aside [USD] [number REDACTED] million for its construction. In 2003, the CIA arranged for a ‘ temporary patch ’ involving placing two CIA detainees (Ramzi bin al-Shibh and Abd al-Rahim al-Nashiri) within an already existing Country [REDACTED] detention facility, until the CIA ’ s own facility could be built. ... By [day/month REDACTED] 2003, after an extension of five months beyond the originally agreed upon timeframe for concluding CIA detention activities in Country [REDACTED], both bin al-Shibh and al-Nashiri had been transferred out of Country [REDACTED] to the CIA detention facility at Guantánamo Bay, Cuba.” 110. The report, in the section entitled “US Supreme Court Action in the case of Rasul v. Bush Forces Transfer of CIA Detainees from Guantánamo to Bay to Country [name REDACTED]” (see also paragraph 61 above),states: “Beginning in September 2003, the CIA held a number of detainees at CIA facilities on the grounds of, but separate from, the U.S. military detention facilities at Guantánamo Bay, Cuba. In early January 2004, the CIA and the Department of Justice began discussing the possibility that a pending U.S. Supreme Court case Rasul v. Bush, might grant habeas corpus rights to the five CIA detainees then being held at a CIA detention facility at Guantánamo Bay. Shortly after these discussions, CIA officers approached the [REDACTED] in Country [REDACTED] to determine if it would again be willing to host these CIA detainees, who would remain in CIA custody within an already existing Country [REDACTED] facility. By January [day REDACTED] 2004, the [REDACTED] in Country [REDACTED] had agreed to this arrangement for a limited period of time. Meanwhile, CIA General Counsel Scott Muller asked the Department of Justice, the National Security Council, and the White House Counsel for advice on whether the five CIA detainees being held at Guantánamo Bay should remain in Guantánamo Bay or be moved pending the Supreme Court ’ s decision. After consultation with the U.S. solicitor general in February 2004, the Department of Justice recommended that the CIA move four detainees out of a CIA detention facility at Guantánamo Bay pending the Supreme Court ’ s resolution of the case. The Department of Justice concluded that a fifth detainee, Ibn Shaykh al-Libi, did not need to be transferred because he had originally been detained under military authority and had been declared to the ICRC. Nonetheless, by April [REDACTED two-digit number] 2004, all five CIA detainees were transferred from Guantánamo Bay to other CIA detention facilities. [REDACTED] Shortly after placing CIA detainees within already existing Country [REDACTED] facility for a second time, tensions arose between the CIA and [REDACTED] Country [REDACTED]. In [month REDACTED] 2004, CIA detainees in a Country [REDACTED] facility claimed to hear cries of pain from other detainees presumed to be in the [REDACTED] facility. When the CIA chief of Station approached the [REDACTED] about the accounts of the CIA detainees, the [REDACTED] stated with ‘ bitter dismay ’ that the bilateral relationship was being ‘ tested ’. There were also counterintelligence concerns relating to CIA detainee Ramzi bin al-Shibh, who had attempted to influence a Country [REDACTED] officer. These concerns contributed to a request from [REDACTED] in [month REDACTED] 2004 for the CIA to remove all CIA detainees from Country [REDACTED]. [REDACTED] In [month REDACTED] 2004 the chief of Station in Country [REDACTED] again approached the [REDACTED] with allegations from CIA detainees about the mistreatment of Country [REDACTED] detainees [REDACTED] in the facility, the chief of Station received an angry response that, as he reported to CIA Headquarters, ‘ starkly illustrated the inherent challenges [of] [REDACTED] ’. According to the chief of Station, Country [REDACTED] saw the CIA as ‘ querulous and unappreciative recipients of their [REDACTED] cooperation ’. By the end of 2004, relations between the CIA and Country [REDACTED] deteriorated, particularly with regard to intelligence cooperation. The CIA detainees were transferred out of Country [REDACTED] in [name of month REDACTED; appears to have comprised eight characters] 2005.” D. The applicant ’ s alleged secret detention at a CIA “Black Site” in Lithuania from 17 February or 18 February 2005 to 25 March 2006 as described by the applicant, reconstructed on the basis of the 2014 US Senate Committee Report and other documents and as corroborated by experts heard by the Court 1. The applicant ’ s alleged rendition to Lithuania on 17 February or 18 February 2005 and his rendition from Lithuania on the plane N733MA on 25 March 2006 (a) The applicant ’ s submissions (i) Rendition to Lithuania (17 or 18 February 2005) 111. In his initial submissions of 14 July 2011 and 27 October 2011 the applicant maintained that the existence of a CIA secret prison in Lithuania had first been disclosed in August 2009, when ABC News had reported that according to “former CIA officials directly involved or briefed” on the CIA HVD Programme, the Lithuanian authorities had provided the CIA with a building on the outskirts of Vilnius where terrorist suspects had been held for “more than a year” (see also paragraph 257 below). 112. He further submitted that after his rendition from Poland to Guantánamo on 22 September 2003 and from Guantánamo to Rabat in Spring 2004, he had been transferred from Rabat to Lithuania “in early 2005”. Relying on flight information supplied by the Lithuanian Civil Aviation Administration ( Civilinės Aviacijos Administracija – “CAA”), Reprieve and Interights, he indicated two possible dates – 17 February 2005 and 18 February 2005 – and two CIA rendition aircraft – N724CL and N787WH – on which he could have been transferred to Lithuania. 113. On 10 September 2012 the applicant filed with the Court ’ s Registry a pleading entitled “Additional Submission” in which he rectified and supplemented information of his alleged rendition to and from Lithuania in the light of newly emerging materials in the public domain. 114. As regards the alleged rendition to Lithuania on 17 February 2005 or 18 February 2005, the information produced by the applicant could be summarised as follows: (a) Between 15-19 February 2005, N787WH and N724CL, arranged by CSC, travelled from the USA to Lithuania via Morocco and back to the USA. No other flights of CIA-related aircraft have so far come to light connecting the three countries during or around this period; (b) Data from the Federal Aviation Authority and EuroControl showed that N787WH, a Boeing 737 operated by Victory Aviation Florida, executed the following flight circuit on 15-19 February 2005: Baltimore (KBWI) - Santa Maria, Azores (LPAZ) - Salzburg (LOWS) - Malaga (LEMG) - Rabat (GMME) - Constanţa /Bucharest (LRCK / LRBS) - Palanga (EYPA) - Copenhagen (EKCH) - Gander (CYQX) - Baltimore (KBWI). (c) Data from the Federal Aviation Authority and EuroControl showed that another Boeing 727, registered as N724CL, followed a similar route to N787WH on its flight circuit executed on 15-18 February 2005: Van Nuys (KVNY) - Baltimore (KBWI) - Santa Maria, Azores (LPAZ) - Gran Canaria (GCLP) - Rabat (GMME) - Amman (OJAM) - Vilnius (EYVI) - Keflavik (BIKF) - Goose Bay (CYYR) - Baltimore (KBWI) - Van Nuys (KVNY). (d) Both planes travelled from the USA to Morocco; their paths then diverged, as N787WH went on to Romania and N724CL to Amman, Jordan. Both planes then re-converged on Lithuania, arriving within twenty ‑ four hours of each other, before returning to the USA. (ii) Rendition from Lithuania (25 March 2006) 115. In his initial submissions the applicant did not indicate any specific date of his rendition from Lithuania. 116. In his Additional Submission of 10 September 2012 (see also paragraph 112 above), he stated that, according to public sources, the CIA “black site” in Lithuania had been closed “in the first half of 2006 and its occupants transferred to Afghanistan or other countries”. The applicant indicated 25 March 2006 as the date of his rendition from Lithuania, which he linked with the flight circuit executed through Palanga Airport in Lithuania by the CIA rendition plane registered as N733MA on 23-27 March 2006. It was alleged that he had been transferred to Afghanistan by the so-called “double-plane switch”. This operation was executed by using two planes, each one of which completed only half the route so that the CIA prisoners could be transferred from one plane to another in an airport in which they converged. It involved N733MA and another CIA rendition aircraft registered as N740EH, which both made a connection in Cairo on the night of 26 March 2006. 117. It was submitted that N733MA ’ s landing in Palanga on 25 March 2006 had been mentioned in the Lithuanian Parliamentary inquiry. No further information about it was provided by the Parliamentary investigators, other than that “no customs inspection was carried out” and the border guard provided “no records of the landing and inspection of this aircraft” (see also paragraph 173 below). While an entry in the records of the Palanga Airport indicated that N733MA departed from Palanga to Porto, Portugal on 25 March 2006, the analysis of flight plan data released by PANSA and EuroControl showed that N733MA did not fly to Porto but proceeded to Cairo, Egypt. On 26 March 2006 in Cairo the plane converged with another Boeing 737 rendition aircraft registered as N740EH. Afterwards, N733MA travelled from Cairo to Heraklion, Greece. It had left Heraklion for Keflavik, Iceland in the morning of 27 March 2006. On 26 March 2006 N740EH, shortly after the arrival of N733MA in Cairo, took off from there for Kabul, Afghanistan. It then stopped briefly in Amman, Jordan and travelled to Heraklion, Greece. On 28 March 2006 it left Heraklion for Keflavik, Iceland. Both planes were chartered by CSC and operated by Miami Air International, Florida. (b) Evidence before the Court 118. The applicant produced flight and other data from multiple sources, including extracts from EuroControl and Lithuanian aviation authorities ’ flight records, flight messages regarding circuits executed by N787WH on 15-19 February 2005, N724CL on 15-18 February 2005 and the landing of N7333MA at Palanga Airport on 25 March 2006, as well as aircraft charter contracts concluded in respect of those flights. He also produced, among other things, flight data concerning the “double-switch” flight circuits executed by planes N308AB and N787WH between 4 and 7 October 2005 and by N733MA and N740EH on 23 ‑ 28 March 2006, the Report to the Lithuanian Government on the visit to Lithuania carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“CPT”) from 14 to 18 June 2010 (“2011 CPT Report”) and the Briefing and Dossier for the Lithuanian Prosecutor General: CIA Detention in Lithuania and the Senate Intelligence Committee Report dated 11 January 2015 and prepared by Reprieve (“2015 Reprieve Briefing”). 119. Other evidence before the Court comprised the 2014 US Senate Committee Report, publicly available flight data, testimony of the experts heard at the fact-finding hearing and the material of the PowerPoint presentation given by Senator Marty and Mr J.G.S. (i) The 2015 Reprieve Briefing 120. The 2015 Reprieve Briefing states that the partially released 2014 US Senate Committee Report confirmed previous accounts of CIA secret detention in Lithuania and existing public source data on transfer dates of prisoners into and out of Lithuania and referred to prisoners held in Lithuania. The conclusions were as follows: (a) it was established beyond reasonable doubt that one of the facilities adapted by the CIA in Lithuania was used to hold prisoners; (b) prisoners were transferred into this facility in February and October 2005; (c) prisoners were transferred out of this facility in March 2006; (d) the transfers were carried out on planes contracted to Computer Sciences Corporation, all operating within a linked group of contracts. 121. The document summarises key statements in the 2014 US Senate Committee Report relating to three CIA detention facilities referred to therein – Detention Site Black, Detention Site Violet and Detention Site Brown and, using also other public source data, concludes that Detention Site Violet was located in Lithuania. Also, on the basis of the number of the characters blackened in the redacted passages of the report, it attempts to decipher certain dates. The 2015 Reprieve Briefing ’ s findings as to the operation of the CIA secret detention site in Lithuania and the flights indicated by the applicant as those on which he could have been transferred from Morocco to Lithuania and out of Lithuania can be summarised as follows. (α) As regards the colour-coded names of the CIA detention facilities and periods of their operation 122. The Reprieve document provides the following information: (a) According to the 2014 US Senate Committee Report, CIA detainees were transferred to Detention Site Black in “the fall of 2003”. The closure of that site was precipitated by revelations in the Washington Post, published on 2 November 2005 (see also paragraphs 14 9 and 25 6 below; see also Al Nashiri v. Romania, cited above, § § 133 and 161 ). At this point the host country demanded “within [two characters/digits redacted] hours” the site ’ s closure and the remaining detainees were transferred out of that country “shortly thereafter”; (b) Detention Site Violet, in a different country from “Black”, opened “in early 2005”. The CIA conducted discussions with officials from “Violet ’ s” host country; these discussions left one such official “shocked” but host country approval was nonetheless given for the facility. Evidently the CIA had originally constructed a “holding cell” in the same country as Detention Site Violet, which was not used. They then decided to “build a new, expanded detention facility” in the same country. Approval was provided by an official from that country. Money, in the amount of several million dollars, was also provided to that country, although this required the development of “complex mechanisms” to effect the transfer. (c) The first detainees were transferred to the expanded site “Violet” [fourteen lower-case characters redacted for the date]. This information corresponds to the flight data analysed by Reprieve, which indicates flights by two planes N787WH and N724CL, contracted by Computer Sciences Corporation, into Lithuania on 17 February and 18 February 2005 respectively. They came via Morocco, Romania and Jordan and were operating under the same renditions-specific contract. (d) Detention Site Violet was closed as a result of a lack of available medical care “in [five lower-case characters redacted for the month] 2006.” The CIA then transferred its remaining detainees to Detention Site Brown. At that point, all CIA detainees were located in Country [name redacted]; (e) Detention Site Brown was in the same country as Detention Sites Cobalt, Gray and Orange. It first received detainees in “[five lower-case characters redacted for the month] 2006”. The 2014 US Senate Committee Report states that Khalid Sheikh Mohammed was transferred into Detention Site Brown on “[two characters redacted for the date] March 2006”. Prior to this he was held in a different site, to which he had been transferred after being held at Detention Site Black. He was transferred from that site to site [six upper-case character redacted] in 2005, on a redacted date [eight lower- case characters redacted]. Detention Site Cobalt, on the basis of extensive reporting, can be firmly placed in Afghanistan. Detention Site Brown must therefore be in the same country. (f) A transfer of prisoners into Kabul, organised by the CSC within their rendition contracting network took place on 25-26 March 2006. The transfer came from Lithuania and used two planes – N733MA and N740EH ‑ travelling via Cairo. The former carried out the leg of the trip from Lithuania to Cairo, the latter from Cairo to Kabul. (g) The above March 2006 transfer matches the closure of Detention Site Violet which, according to the 2014 US Senate Committee Report, was closed as a result of lack of available medical care in [five characters for the month redacted] 2006. The five-character redacted month could only be “March” or “April” on account of the length of the redaction. Of these two possibilities, March fits the data given in the report for Khalid Sheikh Mohammed ’ s transfer to Detention Site Brown. (h) The lack of medical care which caused the closure of Detention Site Violet seems to have affected Mustafa al-Hawsawi and “four other CIA detainees”. (i) On 1 January 2006 the CIA were holding twenty-eight prisoners, divided between Detention Site Orange and Detention Site Violet. (j) Despite the redactions in the above citations, careful reading of the 2014 US Senate Committee Report alongside other public source documents supports the conclusions that: – Detention Site Black was in Romania; – Detention Site Violet was in Lithuania; – Detention Site Brown was in Afghanistan; – CIA detainees were first transferred into Detention Site Violet in February 2005; – Detainees were transferred out of Detention Site Violet into Detention Site Brown in March 2006. (β) As regards the CIA prisoners ’ transfers into Lithuania – February 2005 transfers 123. The Reprieve document states that the first transfer occurred in early 2005. The transfer could have been carried out on either or both of two planes (N787WH and N724CL), one from Morocco and Amman, one from Morocco and Bucharest, arriving in Lithuania on 17 and 18 February 2005 respectively. (a) N787WH and N724CL were operating under subcontract S1007312 to CSC. Their trips in February 2005 were task orders 20 and 21 of this subcontract. (b) Data from EuroControl shows N787WH ’ s progress from the USA to Morocco, Romania, Lithuania and back. On 15 February 2005 it flew from Baltimore Washington International (KBWI) to Santa Maria, Azores (LPAZ). It then filed a flight plan to Munich (EDDM) but was impeded by snow and went instead to Salzburg (LOWS). On 17 February it left Salzburg in the afternoon and headed to Malaga (LEMG), where it paused until the middle of the night. It then left Malaga in the early hours of 18 February 2005, arriving in Rabat (GMME) around 02:40. After just over two hours in Rabat it proceeded to Romania, filing a flight plan into Constanţa (LRCK) – although its flight plan for the next leg of the trip was filed not out of Constanţa but out of Bucharest Băneasa Airport (LRBS). It left Bucharest in the afternoon of 18 February 2005 and filed a false flight plan into Gothenburg, Sweden. Its true destination was Palanga where it arrived, according to an invoice for “State Charge for Air and Terminal Navigations Services – Palanga”, at 18:09. EuroControl and Palanga airport records both indicate that it left Palanga shortly afterwards, at 19:30, bound for Copenhagen. The plane paused overnight in Copenhagen, then continued to Gander, Canada (CYQX). Information released by the Federal Aviation Authority shows that it then returned to Baltimore International (KBWI/ BWI) and finally to its home base in Florida (FLL). (c) Although the Lithuanian Parliamentary Committee on National Security and Defence inquiry cited N787WH ’ s flight from Bucharest to Palanga on 18 February 2005, the Committee was not aware of the plane ’ s complete route, its contractual basis, or the identification of its contractual basis with rendition operations (see also paragraph 173 below). (d) N724CL ’ s flight under the same subcontract occurred at the same time (16-17 February 2005) as the flight of N787WH and took a similar route: Rabat (GMME) – Amman (OJAM) – Vilnius (EYVI) – Keflavik (BIKF). – October 2005 transfer 124. The 2015 Reprieve Briefing states that prisoners were again transferred into Lithuania from Romania in October 2005. The document refers to the flight circuits executed by N308AB and N787WH on 1 ‑ 7 October 2005. (a) Data from EuroControl shows that N308AB flew from Teterboro, New Jersey, to Slovakia on 4 October 2005. After an overnight stop it proceeded to Romania, filing a flight plan to Constanţa on the evening of 5 October 2005. It left Romania soon afterwards (this time filing a flight plan out of Bucharest) and headed to Tirana, Albania. (b) An email and a “preliminary requirements” document corresponding to this flight give further information, namely that on arrival in Romania the plane was to pick up two people (“PU 2 PAX”) in addition to the five people it had set off with. In Albania it was to “Drop All PAX”. The document instructs: “Must have 3 pilots, NO Flight Attendants. At least a G-IV performance with 10 PAX capability. No customs help”. (c) Flight data shows that on its drop-off in Albania N308AB was met by N787WH, which proceeded just over an hour later to Lithuania. N787WH disguised its route into Lithuania by filing a flight plan to Tallinn (EETN). The Vilnius Airport “State Charge” document incorrectly asserts that N787WH arrived from Tallinn, while another airport log shows that it did in fact arrive from Tirana. (d) On its arrival in Vilnius, as recorded by the Lithuanian Parliamentary Committee on National Security and Defence (see also paragraph 173 below), a border guard was prevented from carrying out his duties and checking the plane; he observed a vehicle drive away from it and exit the perimeter of the airport. – March 2006 transfer 125. The 2015 Reprieve Briefing states that the CIA prisoners were transferred out of Lithuania to Afghanistan in March 2006. (a) Two trips contracted by Computer Sciences Corporation on 25 ‑ 26 March 2006, involving planes N333MA and N740EH, connect Lithuania to Afghanistan and correspond to the closure of Detention Site Violet and the transfer of its prisoners to Detention Site Brown. (b) The Lithuanian parliamentary inquiry noted that N733MA had arrived in Palanga on 25 March 2006, coming from Porto, and that it had returned to Porto; no further information about it was provided, other than the facts that “no customs inspection was carried out” and the border guard provided “no records of the landing and inspection of this aircraft”. Investigation by Reprieve has established that, far from returning to Porto as recorded by officials at Palanga Airport, N733MA continued to Cairo, where it made a connection with N740EH. N740EH then proceeded to Kabul. Both planes were chartered by Computer Sciences Corporation and operated by Miami Air International, Florida. (c) Data provided by EuroControl shows that N740EH flew from New Castle, Delaware (KILG) to Marrakesh (GMMX) on 23 March 2006. There is no record of its subsequent movements until 26 March 2006. In the meantime, N733MA, having left Philadelphia International (KPHL), passed through Porto (LPPR), then filed a flight plan to Helsinki (EFHK) on the afternoon of 25 March. Instead of going to Helsinki, however, N733MA went to Palanga (EYPA), touching down at 22:25 local time (in close proximity to its scheduled arrival time of 20:38 GMT). It paused for 90 minutes in Palanga. Records from EuroControl and the Polish Air Navigation Authority both show that on leaving Palanga it went not to Porto, as the Lithuanian parliamentary inquiry was informed (see also paragraph 173 below), but to Cairo (HECA). Its scheduled arrival time in Cairo was 02:19 GMT on 26 March. (d) While N733MA was making its way to Palanga, N740EH was on its way to Cairo. Although records do not show when it arrived in Cairo, or from where, they do indicate that it left Cairo shortly after N733MA arrived there – at 02:45 GMT on 26 March 2006 – and that it went from Cairo to Kabul (OAKB), with an arrival time in Kabul of 08:32. N740EH then returned westwards from Kabul, pausing briefly in Amman (OJAI) before making a longer stop in Heraklion (LGIR). It arrived in Heraklion around 23:07 on 26 March 2006. N733MA had also flown to Heraklion direct from Cairo and was waiting there, having arrived at 04:59 the same day. Both planes left Heraklion for Keflavik (BIKF) – N733MA on the morning of 27 March 2006, and N740EH on the morning of 28 March 2006. (e) Documents relating to the planning of these two trips show complex attempts to disguise the fact that the purpose of the trips was to provide a connection between Lithuania and Afghanistan. Both trips were included in one invoice. Consistent with the other trips mentioned in the briefing, the invoice relates the task back to the original rendition subcontract. (f) The flight schedule accompanying the charter contract shows that both planes ’ destinations were kept secret up to the last minute. (ii) Expert evidence 126. At the fact-finding hearing the experts, Mr J.G.S. and Mr Black, gave evidence on the alleged operation of the CIA secret detention facility in Lithuania, code-named “Detention Site Violet” in the 2014 US Senate Committee Report, the applicant ’ s alleged rendition to Lithuania, his secret detention and his transfer out of the country. They replied to various questions from the judges and the parties. They testified as follows. 127. In the course of the PowerPoint presentation Mr J.G.S., when explaining in general the rendition scheme operated by the CIA, characterised Lithuania as a “drop-off” point for CIA detainees, which had served the purpose of hosting a detention facility. In particular, he stated: “I wish to begin by setting out in the form of a graphic illustration the system in which such detention sites were situated. This is a system that spanned the entire globe but it had at its heart several hubs of operation here on the European continent. I am using a map of the world to show those present several categories of places at which aircraft landed in the course of the so-called ‘ war on terror ’. We categorised these landing points according to a set of criteria developed in 2006 whereby each landing point exhibited certain characteristics which allowed us to discern the purpose for which an aircraft landed there. The four categories as denoted are first stopover points where aircraft tended to stop shortly, primarily to refuel, staging points where often two or more aircraft would converge in their planning or preparation of specific detainee transfer operations, pick up points at which individual suspects, persons captured by the CIA, were taken on board rendition aircraft by CIA rendition crews in order to be flown to secret detention, in places of the last category detainee transfer or drop-off points. The original graphic on display here dates to 2006. We are in a position today to add one further detainee transfer drop-off point in Vilnius on the territory of the Republic of Lithuania. Having subsequently uncovered records of flights into and out of that territory and been able to devote an equal amount of rigour and attention to the underlying documents, we have found that Vilnius together with Szymany and Bucharest bore the character of a detainee drop-off point in the CIA ’ s system of renditions. I will explain how that occurs by developing some of the analysis further. ... Vilnius has been added here for the specific purpose of today ’ s proceedings albeit that at the time in 2006 and 2007 we did not have sufficient information to place it on the original map. What we can say today about the CIA ’ s operations of a ‘ black site ’ in Lithuania has increased considerably in scope and volume thanks to various declassifications, also various records obtained through court proceedings in the United States of America, and indeed through the diligent efforts of various Lithuanian partners who have investigated this issue since its first exposure in 2009 and 2010. ... [F]or example ... this is a document on record before the court which attests to the landings of CIA rendition aircraft in Vilnius in the months of February and October 2005. This is significant and this was furnished in 2011 by the Lithuanian authorities themselves. It is significant because the aircraft denoted in these disclosures are not the same aircraft that carried out the bulk of the rendition operations in respect of Poland and Romania earlier in the life of the program.” 128. According to Mr J.G.S., the first CIA detainees were transferred to Lithuania in February 2005. He stated that 17-18 February 2005 had been the critical juncture at which CIA detention operations overseas had once again been dramatically overhauled and that the removal of CIA detainees from Morocco had led to the opening of their new “black site” in Lithuania. Mr Zubaydah was transferred to Lithuania in February 2005. Other detainees were transferred to the country in October 2005. The closure of the site had been marked by the transfer of the CIA detainees, including the applicant, out of Lithuania on 25 March 2006. He referred to the following elements in support of his conclusions. 129. He first referred to the “cyclical nature” of CIA secret detention sites and explained its relevance for the opening and closure of the CIA secret prison in Lithuania as follows: “The Court will recall my reference to the CIA ’ s in-house aviation service providers. There was a shell company known as Aero Contractors that administered two aircraft N313P and N379P in the early years of the rendition programme and much of the planning for the flights was done by one provider Jeppesen Dataplan. In those early years therefore there is quite a consistent pattern to the execution of rendition operations and that certainly encompasses the timeframe of the Polish site – from December 2002 until September 2003 – and it encompasses much of the operations at the Romanian site from September 2003 until November 2005. But in Lithuania we do not have any record of a single landing of either of those aircraft, the typical rendition aircraft: neither the Boeing Business Jet, nor the Gulfstream express plane which were used customarily in the early years. However, through these disclosures the Lithuanian records allow us to find out how the CIA developed its methodology, expanded its fleet and in some cases replaced its original operator with new contractors, new aircraft and new modus operandi. Among the routes flown by these new aircraft was the putative transfer of the applicant in today ’ s proceedings into Lithuania in February of 2005. For reasons I have addressed in [ Al Nashiri v. Romania ] proceedings, Madam President, it stands to reason that February 2005 was another important juncture in the evolution of the CIA secret detention program. As I will demonstrate in my presentation the programme was cyclical in character: detention sites did not exist in perpetuity for the entire lifespan of the war on terror, rather the CIA tended to innovate and improvise to situations as it found them. Its earliest sites, in theatre, in a country like Afghanistan, they were able to last somewhat longer because of the context and often also because of the military support that they were able to draw upon, but in the cases of Thailand and Poland and Morocco and even Guantánamo Bay, extenuating circumstances caused by external factors, whether political, legal or reputational, led to the abrupt closure of detention sites at moments when the CIA had not necessarily planned for them to close. So the story of the secret detention programme includes several of these junctures at which one detention site closes abruptly and another opens in its place. However, that February 2005 fits into this pattern for the specific reason that in February 2005 the cooperation with the Moroccan authorities in the administering of a secret detention site in Rabat, Morocco finally ran aground. All the CIA ’ s remaining detainees in Morocco had to be moved out. In February 2005 the flight data tells us that there were two principal destinations for detainees being taken out of Morocco. Those were the two European sites. Firstly Romania, which we have addressed in the [ Al Nashiri v. Romania ] proceedings, and secondly, for the first time, Lithuania.” He added: “Detention sites did not endure for periods of several years, rather at particular junctures in the programme they were abruptly closed and all classified information housed in those facilities destroyed. Here we have the example of when Thailand was closed, December 2002. And by collating material from the reporting the cabling at the base with flight data, including that from our own investigations we identified this juncture of ... December 4th-5th, 2002 as the first of several on which CIA detention and interrogation operations were dramatically overhauled. That meant that one base closed - CATESEYE in Thailand and immediately afterwards a new base opened ‑ QUARTZ base in Poland. And just as the detainees from one site moved to another so the operational focus shifted with them. QUARTZ became the facility from 5 December 2002, to which the CIA brought its highest value detainees for HVD interrogation. Likewise, if we move forward nine months, the same report reveals that QUARTZ itself only existed until 22 September 2003, whereupon QUARTZ base in Poland was closed and a successor site BRIGHTLIGHT base in Romania was opened, 22 September 2003. This cyclical nature evidenced in the documents and supported by analysis of the flight data persisted all the way till the end of Europe ’ s participation in the rendition programme. Specifically the last juncture of interest to the Court is that on 25 March 2006. Detention Site Violet, the Lithuanian site itself, would close and would lead to a wholesale transfer of detainees from that site to the final site in the programme back in Afghanistan. So, rather than having multiple sites existing simultaneously and in perpetuity, the story of this programme is of a shifting operational focus whereby each site at one time is the hub of operations where the key interrogations are taking place, where enhanced interrogation techniques are being routinely authorised and instrumentalised, and where new detainees captured are sent by rendition aircraft in order to enable this honing of resources.” 130. In this connection, in the course of the PowerPoint presentation, Mr J.G.S. demonstrated two rendition circuits executed through Lithuania, the first executed by aircraft N724CL in February 2005, the second by aircraft N787WH on 5-6 October 2005. (a) As regards N724CL ’ s circuit in February 2005: “This circuit in February 2005 encompasses the period from the 15th to 20th February 2005 in which two rendition aircraft deployed to Morocco simultaneously. I shall demonstrate the circuit of the aircraft N724CL which embarked here from Gran Canaria to the pickup of the remaining detainees in Rabat - Morocco. It flew the path to Amman - Jordan before flying onward to Vilnius - Lithuania. This is the first of the landings which the Lithuanian authorities themselves evidenced in their documentary submissions of 2011. The aircraft landed in Vilnius on 17 February 2005, the date on which the applicant of ours, the beginning of his secret detention in Lithuania. It departed via Keflavík before returning to its base in the United States. This simple illustration is backed up by a large trench of documentation and in particular it is in respect of these contractor operations that we are able to draw upon the docket of litigation in the United States between two contractors, both of them servicing the CIA ’ s rendition programme. The name of the case in question which is in the records before the Court is Sportsflight Air Inc. [ sic ] versus Richmor Aviation.” (b) As regards the N787WH circuit in October 2005, Mr J.G.S. testified that it had involved the transfer of detainees between the CIA “black sites” in Romania and Lithuania, which had been disguised by using both the so ‑ called “dummy” flight planning and the CIA methodology of “switching” aircraft. The CIA, under its aviation services contract with Computer Sciences Corporation, tasked two rendition aircraft – N308AB and N787WH – with flights to Europe simultaneously. N308AB arrived in Bratislava, Slovakia from Teterboro, USA, while N787WH landed in Tirana, Albania. A “dummy” flight plan from Bratislava to Constanţa, Romania was filed in respect of N308AB but when the plane entered Romanian airspace, the Romanian aviation authorities navigated it to an undeclared landing in Bucharest. The plane collected CIA detainees from Romania. Subsequently, N308AB flew from Bucharest to Tirana on the night of 5 October 2005. The CIA detainees “switched” aircraft in Tirana; they were transferred onto N787WH for the rendition flight. A “dummy” flight plan from Tirana to Tallinn, Estonia was filed in respect of N787WH. Instead, the plane flew to Lithuania and the Lithuanian aviation authorities navigated it to an undeclared landing at Vilnius in the early hours of 6 October 2005. The plane dropped off the CIA detainees for ground transportation to the CIA “black site” in Lithuania. Then the planes departed; N787WH flew to Oslo, Norway and onwards, N308AB made a stopover in Shannon, Ireland and returned to its base in the USA (see also Al Nashiri v. Romania, cited above, § 135). Mr J.G.S. stated, in particular: “In respect of Lithuania I would like to draw attention in particular to the records around the October 2005 flights. On this occasion two aircraft are implicated in the transfer of a single group of detainees. There are records pertaining to N308AB and there are also records pertaining to N787WH. N787WH is a Boeing business Jet, a 737, and as I mentioned it took the place of the earlier N313P aircraft in performing large scale transfers of detainees simultaneously. Among the documents there are emails and other items of correspondence which give an extraordinary insight into the CIA ’ s planning of these operations. If asked how do we know that the deceit was deliberate, how do we know that the disguise was a tactic rather than a facet of in-flight changes, I would point to the documents in this docket which refer explicitly to sleight of hand. They deliberately purport to file flight plans to destinations of which the aircraft has no intention of flying and they include such statements as ‘ no customs help ’ or on occasion ‘ drop all passengers ’ or on occasion ‘ hard arrival ’, which are not legal terms in the planning of international flights; they are rather efforts to circumvent the system of controls and regulations put in place by among others the international civil aviation organisation. This particular circuit, which I will demonstrate, is of great relevance to our proceedings today because it links the detention site in Bucharest - Romania with the detention site in Vilnius - Lithuania and demonstrates how the CIA ’ s tactics to evade accountability had evolved over the course of the programme. Herein we will see not only instances of dummy flight planning, the customary filing of false flight plans but also the use of a new methodology switching aircraft mid operation to avoid the eventuality that the same aircraft appeared in the site of two different places of detention. On this map we have two aircraft which arrived in Europe simultaneously on 5 October 2005. The first N308AB arrived from its base in Teterboro – New Jersey, the second N787WH arrived from Keflavík and landed at Tirana – Albania. Tirana Albania was to be the point at which these two aircraft would converge hence it is marked here as a staging point. Before arriving there, however, the first aircraft N308AB filed a dummy flight plan to the false destination of Constanţa, Romania and then flew to its real destination Bucharest Băneasa airport, where it collected detainees from the Romanian detention site. After its collection it flew to Tirana from Bucharest directly with the prior instruction to drop all packs. This in jargon means the passengers on the plane, explicitly here the crew, the rendition personnel who are responsible for removing, securing and transporting the detainees. In Tirana the crew transferred onto the waiting second aircraft N787WH together with the detainees. The dummy flight plan was then filed for this second aircraft furthering the layers of deceit. Tallinn, Estonia was used as a false destination to enable the flight to enter Lithuanian airspace and land at Vilnius airport in Lithuania. This is the point at which the detainees on board were dropped off, hence the direct link between the ‘ black site ’ in Bucharest and the ‘ black site ’ in Vilnius. Both aircraft thereafter returned towards the United States, N787WH flying via Oslo and northward, N308AB flying via stopover in Shannon back to New Jersey. Again Lithuanian records attest to the landing of N787WH in Vilnius, notwithstanding its false or ‘ dummy ’ flight planning and this document, which also forms part of the records before the court from the Litcargus provider at Vilnius, is the completion of the switching aircraft operation, a typical and short time on the ground in Vilnius in the early hours of the morning in which the detainees were transported by ground to the detention facility in Lithuania.” 131. Replying to the judges ’ question about the relation between the above circuit and the applicant ’ s case, Mr J.G.S. testified as follows: “You asked also why did I focus my attention on this pattern of switching aircraft in October 2005 and it is because that operation links two detention sites in European territories, namely the detention site in Romania and the detention site in Lithuania, and illustrates adequately to the Court that there were complex, deliberately deceitful, tactics at play that make it very difficult to follow a particular detainee ’ s path for the transfers that the CIA undertook in moving its detainees from one site to another. That particular joint operation, involving N308AB and N787WH, is an operation to which I have devoted considerable time in documenting, in correlating, collating different information sources and I am confident in pronouncing that as a rendition operation in which persons from Romania were transported via a switching of aircraft in Tirana to the site in Lithuania. At this present time that operation stands as the only other confirmed inward rendition to Lithuania that I have been able to document from material in the public domain. And it is for that reason that I presented it to the Court because it enhances the certainty with which we can see a detention site existed in Lithuania.” 132. In reply to the judges ’ question as to whether it could be established that the CIA detention facility in Lithuania was code-named “Violet” in the 2014 US Senate Committee Report and, if so, on what basis, Mr J.G.S. testified: “The Detention Site Violet is the colour code name used to denote Lithuania in the [2014 US Senate Committee] Report. I have reached this conclusion by collating information around specific dates, specific detainees, and specific junctures in the broader CIA programme that are explicitly mentioned and unredacted in the report. I refer in particular to the nexus between different detention sites and the cyclical nature of the programme, such that when one site closed another opened, when one site was demoted in importance another site was promoted, and establishing the identity of Detention Site Violet as Lithuania derives from a deep understanding of both Romania ’ s role under the code name ‘ Black ’, and in particular the role played by Morocco, an authority that is only referred to by a country letter rather than a colour, because it did not act as a detention site or ‘ black site ’ within the CIA structure. But I would direct the Court in particular to pages 139 to 142 of the [2014 US Senate Committee Report], in which the role of Morocco is described extensively as a country which ‘ detains individuals on the CIA ’ s behalf ’ and through a close reading of these passages linked with the evidence I have presented in these and earlier [ Al Nashiri v. Romania ] proceedings, one reaches the incontrovertible conclusion that when the facility in Morocco was finally closed the only possibility is that Detention Site Violet, namely Lithuania, then took the detainees from that country in conjunction with ‘ Detention Site Black ’. In particular a paragraph on page 142, which describes the end of relations between the CIA and Morocco, concludes with the passage that the CIA detainees were transferred out of this country in February 2005 and corresponds precisely with the flight movements, the planning documentation and the detailed insights afforded by the American litigation proceedings, to lead us from Rabat - Morocco to Vilnius - Lithuania.” 133. As regards other elements justifying the conclusion that Detention Site Violet was located in Lithuania Mr J.G.S. testified as follows: “I would like now to move on to some of the references in the declassified American documents that might help the Court to place the Lithuanian site in the context of the broader rendition detention and interrogation programme. In respect of Lithuania the most important document at hand is the declassified [2014 US Senate Committee Report], the Feinstein Report as it is sometimes known. Whilst incomplete and whilst heavily redacted, the document nonetheless plays into the aforementioned collation or distillation of multiple documentary sources and it is possible to link the colour coded references to specific detention sites in the report to known and recognisable host countries of ‘ black sites ’ including that of Lithuania. As has been widely reported since this document was declassified the Lithuanian site is associated with the colour code Violet. References in the [2014 US Senate Committee Report] to Detention Site Violet accord completely with the timings, with the character and with the chronological progression of detention operations in respect of Lithuania. Notably I would point the Court to two sections of the report, pages 96 to 98 and pages 154 to 156. In these two sections the Committee engages in an analysis of the reasons behind both the opening and the closing of Detention Site Violet in Lithuania and it delivers several pertinent observations regarding the question of relations with the host national authorities. It is important first in order to establish this relation to the coding to recognise that Detention Site Violet was created in a separate country to any of the other detention sites mentioned in the report. So, where there is a raft of evidence connecting Detention Site Cobalt to Afghanistan correlating with many of the detentions we know took place there and indeed many of the techniques practised there; Detention Site Green we know to have been Thailand, the place in which Al Nashiri and today ’ s applicant Abu Zubaydah were waterboarded and the only site at which videotaping took place; Detention Site Blue, the first European site at Szymany in Poland to which both today ’ s applicant Mr Zubaydah and Mr Nashiri were transferred upon the closing of the Thai site in December 2002, and as mentioned in earlier [ Al Nashiri v. Romania] proceedings Detention Site Black, the site situated in Romania at which Mr Al Nashiri and others were detained between 2003 September and 2005 November. The reference to a separate country here opens a new territory to the programme. Here we see discussion of political approval of the site which indicates that the same processes were aptly as pertained in Poland and Romania and as were described in the Marty Reports. The same conceptual framework where authorisation was required to situate a detention site in a European country from the highest levels of government. Here we have references in descriptive narrative to how Lithuanian counterpart officials may have been ‘ shocked ’ by the presence of detainees on their territory but ‘ nonetheless ’ approved. We know from both the [US] Senate inquiry and the inquiry undertaken by the Lithuanian Parliament, the Seimas, that there were in fact two projects in Lithuania aimed at providing support for the CIA detention operations. These are referred to in the Lithuanian reports as Project No. 1 and Project No. 2. In the [2014 US Senate Committee Report] these projects are referred to somewhat more obtusely but notably it states that by mid-2003 the CIA had concluded that its completed but still unused holding cell in this country, by which is meant Project No. 1, was insufficient, given the growing number of CIA detainees in the programme and the CIA ’ s interest in interrogating multiple detainees at the same detention site. This sentence is very important in respect of Lithuania because it corresponds precisely with the description of the provenance of Project No. 2 furnished by the Lithuanian Parliament. It states the CIA thus sought to build a new expanded detention facility in the country. The Committee report provides insight into both the opening and the closing of the site referred to in Romania and this is important because it will also help to situate the Lithuanian site in the timeline. Here, as mentioned in earlier proceedings, we learned that Detention Site Black opened in the fall of 2003, the specific date 22 September 2003. We also learn that it closed within a period of only a few days after the publication of the exposé in the Washington Post; namely on 5 November 2005. The Detention Site Black closed. Therefore, the reference to a separate country means a site that endured beyond Detention Site Black in Romania and in fact endured beyond the period at which the secret detention system in Europe was known about, hence my earlier reference. The Lithuanian Detention Site Violet became the longest or latest standing European detention site. ... ” He added: “I want to share the few further insights into operations in Lithuania which come by looking at specific CIA detainee case studies. We have been able definitively to associate three of the CIA ’ s high-value detainees with the site in Lithuania. However, we know that at least five persons were detained there because in the Senate Committee Inquiry Report it refers to one of these men, Mustafa al-Hawsawi, and four others simultaneously being in country. So today I am only in a position to provide references to these three individuals here: the applicant in today ’ s proceedings, the applicant Abu Zubaydah, Khalid Sheikh Mohammed, at the bottom left, who was detained at one time in each of the European sites - in Poland, then in Romania and finally in Lithuania, and the aforementioned Mustafa al-Hawsawi, who became one of the reasons for which the site was closed, as I will illustrate.” 134. In reply to the judges ’ question whether the applicant ’ s allegations that he had been transferred to Lithuania on 17 or 18 February 2005 and transferred out of the country on 2 5 March 2006 could be confirmed, Mr J.G.S. testified: “With regard to inward transfer, I can attest that an operation was mandated by the CIA through the air branch of its rendition group to its principal air services/division services contractor to carry out a movement of detainees held in Morocco towards other active ‘ black sites ’ /detention sites, namely those in Romania and Lithuania. I can further attest by analysis of the documents that this operation was executed by using two aircraft. The two aircraft you mentioned, N724CL and N787WH. In my presentation I illustrated the flight of N724CL for the express reason that that aircraft flew, and can be demonstrated to have flown, to Vilnius. And Vilnius is unambiguously the airfield associated with the detention site in Lithuania, the physical location of which, as I have suggested, is undisputed. In my experience each detention site is inexorably connected with one destination airfield, hence the Polish site with Szymany airport, hence the Romanian site with Bucharest Băneasa and in my understanding the Lithuanian site is principally primarily associated with the airfield Vilnius airport, denoted by its code EYVI. That is the reason I chose that flight to illustrate to the Court. However, I cannot rule out the possibility that another airfield may have been used in conjunction with Vilnius in operating in Lithuania, and at the present time there is insufficient evidence in the public domain to make a categorical determination, for example as to the use of Palanga airfield. By way of explanation, the tactical methodologies of the CIA did evolve over time as I have presented to the Court today. This switching aircraft methodology was something which was not used in the early years of the programme, it was rather a later resort. So it is eminently possible that in pursuit of the same objectives absolute secrecy, security of transfer, evasion of accountability, the CIA innovated new methods of transfer which entailed using other airports inside the territory of Lithuania. I cannot rule that out nor can I make a categorical pronouncement as to which of those two aircraft brought Mr Zubaydah to Lithuania. I can, however, state that he was detained there in that last year of Europe ’ s participation in the ‘ black sites ’ programme, and that at this moment the only known and evidenced outward flight from Lithuania was the N733MA flight on 25 March 2006, which engaged in an analogous switching aircraft operation, and carried ultimately the detainees who were left at Detention Site Violet to Detention Site Brown, the newly opened site in Afghanistan, thereby closing the chapter on the Lithuanian site. On that front and again, notwithstanding my recognition that other evidence may yet be revealed, I would feel confident in associating this aircraft with the outward rendition of Mr Zubaydah.” In that context, he also added: “I cannot rule out that there was another form of deceit or sleight of hand at play that led to the appearance of two Lithuanian airports in some of these flight routes. Palanga does not immediately strike me as being an airfield associated with the site because of its geographical distance from Antaviliai, but I cannot rule out that perhaps flights landed there and detainees were then transported onwards by some other means. I do not have categorical information on that question. What I can say is that the flights mentioned in the statement of facts, as I have read it, include two flights in this period in February, between 15 and 20 February 2005, one of which is confirmed to have landed at Vilnius, N724CL on 17 February, the other of which N787WH is recorded as having landed at Palanga. On one of these aircraft the applicant was brought to Lithuania but beyond that categorical certainty is not yet achievable.” As regards the applicant ’ s transfer out of Lithuania, he further stated: “You asked about the destination of his outward flight and it is fairly clear that that was Afghanistan. I would say beyond a reasonable doubt he was taken to Afghanistan when he left Lithuania, because he was one of the fourteen high-value detainees who were transported from Afghanistan to Guantánamo Bay and declared by President George W. Bush to have been held in the CIA programme in September 2006, when he revealed its existence for the first time to the world. So there were no further renditions between March 2006 and September 2006. So I would be confident in concluding that he was taken from Lithuania to Afghanistan and thereafter to Guantánamo, and I believe the records that are before the Court state as to how and when those transfers took place.” 135. As regards the applicant ’ s alleged detention at the CIA detention site in Lithuania and the closure of that site, Mr J.G.S. also stated: “Mr Zubaydah does not have a mention by name in [the 2014 US Senate Committee Report] in connection with the Site Violet but the other two detainees cited here, both do. In the case of Khalid Sheikh Mohammed, there is a lengthy description of his detention in multiple different sites, notably in this passage the reference to his being transferred to Detention Site Violet on that earlier switching aircraft circuit in October 2005. He was also held in Lithuania up until the point of the site ’ s closure. Hence his final transfer to Detention Site Brown which was in Afghanistan on March 25, 2006. The passage around Khalid Sheikh Mohammed also talks about how reporting around him accounted for up to 15% of all CIA detainee intelligence reporting, which demonstrates his enduring importance to the purported intelligence gathering objectives of the programme. I find that pertinent because Khalid Sheikh Mohammed was detained in Poland, he was detained in Romania, he was detained in Lithuania, and he stands as a symbol of the centrality of these detention sites in Europe to the overall objectives of the CIA ’ s programme. The third detainee, Mustafa al-Hawsawi is mentioned in the report in relation to his need for medical care. In this passage here which comes from the later section, pages 154 -156, it states that the CIA was forced to seek assistance from three third ‑ party countries in providing medical care to Mustafa al-Hawsawi because the local authorities in Lithuania had been unable to guarantee provision of emergency medical care. And as is stated explicitly in the Senate Committee ’ s Report, based upon cables sent from the base at Detention Site Violet, these medical issues resulted in the closing of the site in this country in the date March 2006. It was at that point that the CIA transferred its remaining detainees to Detention Site Brown. In my view these passages, when read in conjunction with the other documents, constitute a fairly comprehensive record of the reasoning and indeed the methodology behind the closure of the Lithuanian site. Furthermore, subsequent packet passage refers to the overall number of persons in the programme at 1 January 2006 as having been twenty-eight. It states that these twenty-eight persons were divided between only two active operational facilities at that time. One was Detention Site Orange in Afghanistan but importantly the other was Detention Site Violet, the Lithuanian site. The date references here, corresponding with the different flights we have had coming in and later going out, place Detention Site Violet in that time period as the hub of detention operations.” 136. In response to the Government ’ s question as to whether he could attribute a colour code to each CIA “black site” mentioned in the 2014 US Senate Committee Report and whether there had been any locations with no colour codes, Mr J.G.S. stated: “Yes, I can attribute colour codes as mentioned in the Senate Committee Report to each of the detention locations that had the character of a CIA ‘ black site ’. In order to be clear, there were some places used by the CIA that did not meet the precise criteria of a ‘ black site ’, a customised high-value detainee facility. Those criteria were set out in the Inspector General ’ s Report. I indicated it in my presentation, and among the criteria were the exclusive operation by CIA agents and contractors without the participation of foreign counterparts. The criteria for a ‘ black site ’ are in fact enumerated in several of the CIA documents and those sites in the Senate Committee Report were all accorded a colour code. So, for example, whilst Lithuania is associated with Violet, Romania is associated with Black, Poland is associated with Blue, Thailand is associated with Green, in Afghanistan there are several sites, notably Cobalt, Orange and Brown. At Guantánamo also there are multiple sites, notably Maroon and Indigo in the report. But Morocco, a country in which CIA detainees were housed at several points in the programme, does not have its own colour code because it did not meet the criteria as a customised high-value detainee facility. Specifically, Moroccans participated in the detention of CIA HVDs on their territory and they housed those persons within existing detention operations in Morocco, as is described in the report. So I can attribute colour codes to every one of the ‘ black sites ’ and I can also further identify countries that did not have a colour code, but which bore characteristics unique to one country and through the collation of other data sources allow me to categorically pronounce where they were situated. I am not alone in this endeavour, I can say that, having met with several of those involved in the Senate inquiry process, I believe that most reasonably informed observers would be able to associate now the publicly available information with at least one or more of those colour codes. I am not alone, this is not at a simple personal conclusion. It is one which is widely shared, not contradicted across the community of investigators who have occupied themselves with these matters.” 137. Replying to the judges ’ questions as to whether it could be established that Abu Zubaydah had been secretly detained at Detention Site Violet and what was the physical location of that site on Lithuanian territory, Mr J.G.S testified: “The report does not mention the applicant Mr Zubaydah explicitly by name in connection with the Detention Site Violet. However, through an intimate familiarity with the chronology of his detention, much of which I have presented in evidence in these proceedings and the prior proceedings, I have reached the conclusion that there is only one place he could have been in the early part of 2005 and that that place was indeed Morocco. Furthermore, having closely analysed the text regarding Morocco in the report, some of which derives from cables declassified correspondence and other sources which I have also engaged with, I know that the transfers out of Morocco in 2005 went to other active ‘ black sites ’, that one of these was ‘ Detention Site Black ’ in Romania, but that there was also another one in a separate country, to use the terms of the report and based on the answer I gave to Your Honourable colleague Judge Sicilianos, this other country was Lithuania. Because the applicant Mr Zubaydah did not arrive in Romania, ‘ Detention Site Black ’, which I know based upon my years ’ long investigations into the operations of that site much of which I have presented to the Court, the only other destination to which he could have been transferred was the active site in Lithuania and this transfer took place in accordance with the flights described in February 2005. Therefore, on the balance of probabilities, I believe it is established that Abu Zubaydah was secretly detained at Site Violet. As to the physical location of the facility in Lithuania it is my understanding that there is no dispute that there was a facility purpose-built, that this was the converted site of the horseback riding academy at Antaviliai, that the CIA oversaw the construction afresh, that this place was referred to as Project No. 2 in the Seimas parliamentary inquiry in Lithuania, and that the evidence gathered both through the Senate Inquiry and through the Lithuanian authorities ’ own inquiries is in fact perfectly convergent on this point. I should also note that esteemed colleagues in the Committee for Prevention of Torture have visited the site and chronicled many aspects of it, which accord perfectly with the description of secret detention facilities I am familiar with from the American documentation. So as to the physical location, I think it is established beyond a reasonable doubt that this place was the ‘ black site ’ on the territory of Lithuania.” 138. In response to the judges ’ question as to what extent, in comparison to Mr Abu Zubaydah ’ s case against Poland, or to Al Nashiri v. Poland and Al Nashiri v. Romania, he considered his conclusions in the present case to be based on the same elements of certainty, Mr J.G.S. stated: “Thank you, Your Honour, and I appreciate very much the focus on my choice of words because I have attempted, wherever possible, to be quite precise and circumspect in the pronouncements I make with regards to issues of fact. You are quite correct that in respect of this same applicant in his application against Poland I was able to make categorical pronouncements against a burden of proof beyond a reasonable doubt, that he was transferred into Poland on a specific date, that he was subjected to specific forms of treatment, that he was held together with Mr Nashiri and various other aspects, because they were described chapter and verse in documents declassified and made public by the CIA itself, notably the Inspector General ’ s Report. In respect of Romania, again by virtue of its earlier start date of operations, it was included by reference in the Inspector General ’ s inquiry and furthermore features prominently in the [US] Senate ’ s inquiry. 2003, according to the Senate, is the year in which the most high-value detainees persons involved in this programme were captured and interrogated, so understandably, since the Romanian site was the hub of operations, the most important ‘ black site ’ at that time, it is possible to glean a higher quality and volume of evidence from the declassified documents in respect of Romania, hence being able to associate more high-value detainees, more types of treatment as practised on the territory, and indeed a greater degree of certainty when pronouncing on questions of fact in respect of Romania. As I mentioned in the presentation, Lithuania was the latest of the European sites to be opened and therefore received detainees at a later phase of their detention cycles or, alternatively, received fewer detainees whose cases were subjected to the scrutiny of the oversight bodies I have mentioned. There is no Inspector General reference to Lithuania because at the moment when he published his special review in May 2004, the site in Lithuania had not yet been opened. In the Senate Report there are extensive references to Detention Site Violet, but naturally because the preponderance of detainees and their interrogations had taken place in the earlier years of the programme, it is not possible to find as many specific or explicit date references or references to specific renditions as is the case for the other two countries.” 139. Lastly, in reply to the applicant ’ s counsel question as to whether, based on his years as investigator, he was satisfied or was in doubt as to Abu Zubaydah ’ s presence in Morocco, Afghanistan and Lithuania at times referred to by him, Mr J.G.S. testified: “Yes, I am satisfied as to the presence of Mr Zubaydah, respectively in early 2005 in Morocco up to the point where the CIA detention site in Morocco was cleared, thereafter on the territory of Lithuania in the detention site coded as ‘ Violet ’ and thereafter on the territory of Afghanistan in the detention site coded as ‘ Brown ’. ” 140. Mr Black, in reply to the judges ’ question regarding the alleged existence of the CIA detention facility in Lithuania, in particular whether it could be established beyond reasonable doubt that it had operated in Lithuania and, if so, whether its location could be established, stated: “The answer to both parts of that question is unequivocally yes. It is certainly the case beyond reasonable doubt that the CIA established a detention centre in Lithuania. It is certainly the case beyond reasonable doubt that that facility – the facility that they established was in fact used for the purpose of holding prisoners – was in the warehouse outside the village of Antaviliai, a little bit to the north-east of Vilnius. So the issue of the evidence that allows me to make these statements and to say that they are beyond reasonable doubt is necessarily fairly lengthy and it rests on a number of key points which I shall do my best to summarise as concisely as possible. The Senate Report clearly indicated the times of operation of a site which it called Violet, which operated from February 2005 until March 2006. The site was in a country where there had previously been another site established that was in fact never used. This is discussed in the Senate Report. This detail of there having been two sites, one never used and one which was used between February 2005 and March 2006, corresponds accurately with the details given in the Lithuanian Parliamentary Committee ’ s investigation published in 2009, where they state very clearly that their partners, by which they mean the CIA, equipped two sites: one that was not used and one that was used for a purpose which the Parliamentary Committee does not reach a firm conclusion on, at least in its printed document. Now, it is further the case that my research has established flights going into and out of Lithuania precisely at the times that prisoners are said to have been moved into and out of the facility in Violet and that this corresponds with flights into and out of Lithuania in, firstly, February 2005, then in October 2005 and lastly in March 2006. And it is further the case that all these flights are contractually related, that is they are related by their contract numbers, their task order numbers, their invoice numbers and other details to an overall contract, that – we have been able to establish beyond reasonable doubt – was used by the CIA, by the US Government, for the purpose of outsourcing the movement of prisoners. I think that covers the essentials of how we can identify the Violet, the country that site Violet was in, with Lithuania. In terms of the precise circumstances of the building in Antaviliai, it is clear from documents that were gathered by the Parliamentary Committee in Lithuania, as well as from my own field researches – around that area I made several trips to that place in 2011-2012 to interview people around there – it is clear from those interviews and those documents that that building was essentially bought by a company and that Americans were in it, were fitting it out, were then guarding it, that vehicles were coming and going with tinted windows, there was one person living in the vicinity who called this ‘ certain emptiness ’, was the phrase he used that settled over the site at the time. The Parliamentary Report is quite clear that the CIA were occupying the building and it is also quite clear that Lithuanian officers did not necessarily have access to the entire building or if they did have access to it they did not necessarily take advantage of that access. It is also clear that the planes which were arriving in Lithuania, pursuant to the contracts that I mentioned, were being met by a very special regime of, there is a witness statement, that was made by an employee of the border guards and transmitted by his boss – whose name I believe is Kasperavičius, although probably I am pronouncing that wrong – in which he describes the landing of a plane on 6 October 2005 in Vilnius, and he describes how he was told by State security officials that he was not allowed to carry out his normal inspections of the plane and that, although he was kept away from the plane by a security coordinator, he was able to see in the distance a vehicle driving away from the plane. Now new documents which have been released very recently, earlier this month by the CIA pursuant to information requests by the American civil liberties union, allow us to clarify today that that plane was transporting Khalid Sheikh Mohammed into Lithuania. Previously in the dossier that I submitted to the prosecutor in January 2015, I said that it was not clear whether he came on the February flight or the October flight. It is now clear that he came on the October flight. I am sorry that it is a rather long-winded answer to your question, but I think that it has covered most of the main points that I think are necessary and sufficient to show that there was a prison in Lithuania and that it was in the site in Antaviliai.” 141. In reply to the judges ’ question whether it could be established beyond reasonable doubt that Mr Abu Zubaydah had been secretly detained in Lithuania, Mr Black testified: “I have no doubt that Site Violet was in Lithuania and I have no doubt that prisoners were held in it, including, as I said before, Khalid Sheikh Mohammed, also including others who I believe, on the basis of my professional opinion, include Abu Zubaydah. To explain why I believe Abu Zubaydah was held in Lithuania, we need to retrace our steps in a way so that I can explain to you the logical sequence of events that leads me to this conclusion. ... We ... know that after a certain time in Morocco, the CIA had too many disagreements with the Moroccan Intelligence Agencies with regard to the treatment of prisoners in Morocco. This is dealt with at some length in the Senate Report. And so everyone who was in Morocco was moved out at the latest in February 2005. Now again, prima facie, it is possible that Abu Zubaydah, being in Morocco in February 2005, was moved either to Romania or to Lithuania. But again, the statement which I take to be accurate, that he was not in Romania in or prior to the Summer 2005, means that logically he must have gone to Lithuania on that flight on 18 February 2005. I can explain momentarily why I believe he was on N787WH and not on N724CL but if you do not mind I will come back to that. There is a further indicator of his presence in Lithuania, specifically soon after February 2005 – which is new research that has been done by my colleague, Sam Raphael, at the rendition project which has not yet been published, I have seen his work product and I have worked with it and I believe it will be published later this year – this research indicates that a cable relating to Abu Zubaydah was sent in March 2005, although the provenance of the cable is redacted, the length of the redaction is consistent with it coming from Lithuania and inconsistent with the coming from either of the two possible sites at the time which are in Romania or in Afghanistan. Cumulatively I take the total effect of all these bits of evidence to my satisfaction to say that beyond reasonable doubt Abu Zubaydah was held in Lithuania, starting in February 2005.” 142. As regards the date and the flight on which the applicant had been transferred from Morocco to Lithuania, Mr Black testified: “The reason I believe that he was flown in on the plane on 18 February rather than that on 17 February is simply that when you analyse the logs that we published for the 17 February flights, what appears is that everyone on that plane actually got off it in Jordan prior to its landing in Lithuania. So I do not think that the N724CL plane, that went via Jordan to Vilnius, transported prisoners into Lithuania. What it did in Jordan I do not know. I think it is also clear, it follows subsequently, that everybody who was held in Lithuania was moved out in March 2006, on 25 March 2006. I think perhaps it was previously unclear, a couple of years ago, where their destination was, but it is now clear – and it has been corroborated by the Senate Report – that the country to which they were moved was Afghanistan.” 143. In his reply to the judges ’ further question about the flight of N787WH on 18 February 2005, identified as being the one on which the applicant had been transferred to Lithuania, Mr Black confirmed that, in his view, on the basis of evidence this had been established beyond reasonable doubt, adding that “to provide an alternative narrative one ha[d] to enter a kind of world of absurdity”. When a similar question regarding the dates on which the applicant had been transferred into and out of Lithuania was put by the Government – whose representatives also asked how relevant the N787WH October 2005 flight was in the context of the applicant ’ s alleged rendition – Mr Black stated: “So to clarify, I believe that Abu Zubaydah was flown into Lithuania on N787WH on 18 February 2005. I believe that he was flown out of Lithuania on N733MA and N740EH on 25 March 2006. The reason I mention the October 2005 flight is because it is to that flight that we can firmly correlate, again in my opinion beyond reasonable doubt, the arrival of Khalid Sheikh Mohammed in Lithuania and I mention it because (a) it provides more evidence of the pattern of conduct that was engaged by and in Lithuania and (b) because it is specifically for that flight that we have the data relating to the very special, as it were, welcoming procedures that the flight had. Although it has been clarified I believe by the Lithuanian Parliamentary Committee that these same procedures were also in effect for other flights, but I mention that one because the document exists that describes very clearly what these procedures were. So I believe it is important holistically taking into account all the evidence that is available to us – I believe that flight is another important part of the puzzle.” 144. In response to the Government ’ s further question whether the 2014 US Senate Committee Report – on which his conclusions were based –indicated the years and exact months of the opening and closure of Detention Site Violet, Mr Black stated: “If I remember rightly, the Senate Report indicates the year and the months are generally redacted. Because of the way in which they are redacted it is possible to deduce the number of letters, so in a sense it is easy to say which is a long month and which is a short month. One can tell that, let ’ s say, it might be February but not June or so on. Now, the weights of these redactions has to be calculated in accordance when they correlate other public information. So, for example, the new document released of Khalid Sheikh Mohammed ’ s Combatant Status Review Tribunal, is consistent with the redacted Senate Report but it also adds new unredacted information, to the extent that it gives the months of October and March, which are what our reconstruction initially was. And the same can be said of the redacted February. In one place there is a word that is the same length as February that has been redacted and in another place it says ‘ in early 2005 ’. We have the flights that are the only flights at that point that correspond to it. Taking the whole weight of those and other indicators, to me, that is the only solution that makes any sense is the solution that indeed the site in Lithuania operated at the times that we have stated and was serviced by the flights that we have stated.” 145. In reply to the Government ’ s question as to whether the 2014 US Senate Committee Report did state that the national institutions had refused high ‑ value detainees access to medical institutions, Mr Black stated: “Yes, that was specifically stated of Site Violet in the Senate Report and it was also discussed in the new release of the, I think it is called, the facility audit, which is one of the documents released in the last few weeks by the CIA. That document describes the problems that the CIA had in 2005 and 2006 getting medical attention in host countries. Now the new document, the facility audit, does not specifically mention which countries it refers to, although the only countries that were operating at the time that it covers were Lithuania and Afghanistan. The Senate Report on the other hand, contextually, in that paragraph it is clear, I believe, that it references to Lithuania and what it says is that they did not have the right type of medical facilities on their site to deal with medical problems and that they initially had an agreement with the host country that the host country would provide medical facilities in such eventualities. The host country had decided that it was not going to do that. The word that is used in the facility audit is that it ‘ reneged ’. I do not think that word is used in the Senate Report.” (iii) “Detention Site Violet” in the 2014 US Senate Committee Report 146. The 2014 US Senate Committee Report refers to “Detention Site Violet” in several sections concerning various events. 147. In the chapter entitled “The CIA establishes DETENTION SITE BLACK in COUNTRY [REDACTED] and DETENTION SITE VIOLET in Country [REDACTED]” the section referring to Detention Site Violet reads as follows: “[REDACTED] In a separate [from country hosting Detention Site Black], Country [name blackened], the CIA obtained the approval of the [REDACTED] and the political leadership to establish a detention facility before informing the U.S. ambassador. As the CIA chief of Station stated in his request to CIA Headquarters to brief the ambassador, Country [REDACTED] ’ s [REDACTED] and the [REDACTED] probably would ask the ambassador about the CIA detention facility. After [REDACTED] delayed briefing the [REDACTED] for [number blackened] months, to the consternation of the CIA Station, which wanted political approval prior to the arrival of CIA detainees. The [REDACTED] Country [REDACTED] official outside of the [REDACTED] aware of the facility, was described as ‘ shocked ’, but nonetheless approved. [REDACTED] By mid-2003 the CIA had concluded that its completed, but still unused ‘ holding cell ’ in Country [REDACTED] was insufficient, given the growing number of CIA detainees in the program and the CIA ’ s interest in interrogating multiple detainees at the same detention site. The CIA thus sought to build a new, expanded detention facility in the country. The CIA also offered $ [one digit number blackened] million to the [REDACTED] to ‘ show appreciation ’ for the [REDACTED] support for the program. According to a CIA cable however [long passage blackened]. While the plan to construct the expanded facility was approved by the [REDACTED] of Country [REDACTED], the CIA and [passage redacted] developed complex mechanisms to [long passage REDACTED] in order to provide the $ [one digit number blackened] million to the [REDACTED]. [REDACTED] in Country [REDACTED] complicated the arrangements. [long passage REDACTED] when the Country [REDACTED] requested an update on planning for the CIA detention site, he was told [REDACTED] – inaccurately – that the planning had been discontinued. In [date REDACTED], when the facility received its first detainees, [REDACTED] informed the CIA [REDACTED] that the [REDACTED] of Country [REDACTED] ‘ probably has an incomplete notion [regarding the facility ’ s] actual function, i.e., he probably believes that it is some sort of [REDACTED] center.” 148. In the chapter entitled “The Pace of CIA Operations Slows; Chief of Base Concerned About ‘ Inexperienced, Marginal, Underperforming ’ CIA Personnel; Inspector General Describes Lack of Debriefers As ‘ Ongoing Problem ’ ”, the section referring to Detention Site Violet reads as follows: “[REDACTED] In 2004, CIA detainees were being held in three countries: at DETENTION SITE BLACK in Country [REDACTED], at the [redacted] facility [REDACTED] in Country [REDACTED], as well as at detention facilities in Country [REDACTED]. DETENTION SITE VIOLET in Country [REDACTED] opened in early 2005.” 149. In the chapter entitled “Press Stories and the CIA ’ s Inability to Provide Emergency Medical Care to Detainees Result in the Closing of CIA Detention Facilities in Countries [REDACTED] and [REDACTED]”, the section referring to the disclosure regarding CIA secret prisons in Europe published in the Washington Post and the closure of Detention Site Black and Detention Site Violet reads as follows: “In October 2005, the CIA learned that the Washington Post reporter Dana Priest had information about the CIA ’ s Detention and Interrogation Program, [REDACTED]. The CIA then conducted a series of negotiations with The Washington Post in which it sought to prevent the newspaper from publishing information on the CIA ’ s Detention and Interrogation Program. ... After publication of the Washington Post article, [REDACTED] Country [REDACTED] demanded the closure of DETENTION SITE BLACK within [REDACTED two-digit number]. The CIA transferred the [REDACTED]| remaining CIA detainees out of the facility shortly thereafter. ... [long passage REDACTED] In [REDACTED] Country [REDACTED] officers refused to admit CIA detainee Mustafa Ahmad al-Hawsawi to a local hospital despite earlier discussions with country representatives about how a detainee ’ s medical emergency would be handled. While the CIA understood the [REDACTED] officers ’ reluctance to place a CIA detainee in a local hospital given media reports, CIA Headquarters also questioned the ‘ willingness of [REDACTED] to participate as originally agreed/planned with regard to provision of emergency medical care ’. After failing to gain assistance from the Department of Defense, the CIA was forced to seek assistance from three third-party countries in providing medical care to al-Hawsawi and four other CIA detainees with acute ailments. Ultimately, the CIA paid the [REDACTED] more than $ [two-digit number redacted] million for the treatment of [name REDACTED] and [name REDACTED], and made arrangements for [name REDACTED] and [name REDACTED] be treated in [REDACTED]. The medical issues resulted in the closing of DETENTION SITE VIOLET in Country [REDACTED] in [five characters for the month REDACTED] 2006. The CIA then transferred its remaining detainees to DETENTION SITE BROWN. At that point, all CIA detainees were located in Country [REDACTED]. ... The lack of emergency medical care for detainees, the issue that had forced the closing of DETENTION SITE VIOLET in Country [REDACTED] was raised repeatedly in the context of the construction of the CIA detention facility in Country [REDACTED]. ... In early January 2006, officials at the Department of Defense informed CIA officers that Secretary of Defense Rumsfeld had made a formal decision not to accept any CIA detainees at the U.S. military base at Guantánamo Bay, Cuba. At the time, the CIA was holding 28 detainees in its two remaining facilities, DETENTION SITE VIOLET, in Country [REDACTED], and DETENTION SITE ORANGE, in Country [REDACTED]. In preparation for a meeting with Secretary of Defense Rumsfeld on January 6, 2006, CIA Director Goss was provided a document indicating that the Department of Defense ’ s position not to allow the transfer of CIA detainees to U.S. military custody at Guantánamo Bay ‘ would cripple legitimate end game planning ’ for the CIA.” 2. Detention and treatment to which the applicant was subjected 150. The applicant submitted that throughout his detention by the CIA he had been subjected to torture and other forms of ill-treatment prohibited by Article 3 of the Convention. In that regard he relied, among other things, on his own description of his experience in CIA custody and conditions of detention, as related in the 2007 ICRC Report. The report was based on interviews with the applicant and thirteen other high-value detainees, including Mr Al Nashiri, after they had been transferred to military custody in Guantánamo (for more details, see paragraphs 29 6 -29 9 below). 151. Annex I to the 2007 ICRC Report contains examples of excerpts from some of the interviews conducted with the fourteen prisoners. These excerpts are reproduced verbatim. The verbatim record of the interview with the applicant gives details of his ill-treatment in the CIA custody “regarding his detention in Afghanistan where he was held for approximately nine months from May 2002 to February 2003”. The applicant ’ s account of the abuse that he endured in CIA custody as rendered in the 2007 ICRC Report reads, in so far as relevant, as follows: “I was then dragged from the small box, unable to walk properly, and put on what looked like a hospital bed, and strapped down very tightly with belts. A black cloth was then placed over my face and the interrogators used a mineral water bottle to pour water on the cloth so that I could not breathe. After a few minutes the cloth was removed and the bed was rotated into an upright position. The pressure of the straps on my wounds was very painful. I vomited. The bed was then again lowered to a horizontal position and the same torture carried out again with the black cloth over my face and water poured on from a bottle. On this occasion my head was in a more backward, downwards position and the water was poured on for a longer time. I struggled against the straps, trying to breathe, but it was hopeless. I thought I was going to die. I lost control of my urine. Since then I still lose control of my urine when under stress. I was then placed in the tall box again. While I was inside the box loud music was played again and somebody kept banging repeatedly on the box from the outside. I tried to sit down on the floor, but because of the small space the bucket of urine tipped over and spilt over me. ... I was then taken out and again a towel was wrapped around my neck and I was smashed into the wall with the plywood covering and repeatedly slapped in the face by the same two interrogators as before. I was then made to sit on the floor with a black hood over my head until the next session of torture began. The room was always kept very cold. This went on for approximately one week. During this time the whole procedure was repeated five times. On each occasion, apart from one, I was suffocated once or twice and was put in the vertical position on the bed in between. On one occasion the suffocation was repeated three times. I vomited each time I was put in the vertical position between the suffocations. During that week I was not given any solid food. I was only given Ensure to drink. My head and beard were shaved every day. I collapsed and lost consciousness on several occasions. Eventually the torture was stopped by the intervention of the doctor.” 152. A more detailed description of various methods of ill-treatment inflicted on the applicant as related in the 2007 ICRC Report and the 2004 CIA Report can be found in Husayn (Abu Zubaydah) v. Poland, cited above, §§ 102-107). 153. In connection with the fact-finding hearing, the applicant also produced an extract from partly declassified transcripts of hearings before the Combatant Status Review Tribunal in Guantánamo, held on 27 March 2007, during which he had related his treatment in CIA custody. That document was released on 13 June 2016. It reads, in so far as relevant, as follows: “In the name of God the Merciful. Mr. President and Members of the Tribunal, I would have liked to have spoken to you today on my own, but I have been having seizures lately which have temporarily affected my ability to speak and write without difficulty. Therefore, I asked my Personal Representative to speak on my behalf. I hope from you justice, and I know that is what you seek. Do not make the mistake the CIA has made when they first arrested me on 28 March 2002. After months of suffering and torture, physically and mentally, they did not care about my injuries that they inflicted to my eye, to my stomach, to my bladder, and my left thigh and my reproductive organs. They didn ’ t care that I almost died from these injuries. Doctors told me that I nearly died four times. Then they transferred me to a secret location. They transferred me in a way that a normal, ordinary person would be embarrassed to be treated. They even prevented me from going to the bathroom at least five times, and sometimes I was deprived from being able to go to the bathroom for 24 to 36 hours when we travelled. ... They did this to me because they thought I was the number three leader in al Qaida and a partner to USAMA BIN LADEN, as is mentioned in the unclassified Summary of Evidence against me. ... First thing, during I ’ m still – I was in – still in the hospital. They would ask me and I would answer. From the hospital, after, I don ’ t know how many months, how many times. They take me to their secret place. From that lime I was naked. And I think you know how much it is the bad for us as the Muslims, and I think it is problem for you as Christian or Jew. I don ’ t know but at least for us, it was very bad thing. I was too weak; they make me sleep in a metal bed, [via Language Analyst] a medical metal bed. It look like this. Naked and feel cold and this still bleeding [pointing to the inside of left thigh urea] from this area. ... So it take days and days, too cold place, naked and position sleeping. After this, they put me in the chair – same circumstance – naked, too much cold, no food, only Ensure [Language Analyst clarifies Ensure – Force feeding Ensure]. ... And they not give me chance, all this, maybe one-two week, I don ’ t know the time. No food, no sleep, not allowed to sleep. When I feel sleep, they shake me like this [shaking chair] or make me stand. But all that time I am sitting twenty-four hours, only sorry again, when I use the toilet, bucket, not real toilet, bucket near of me and in front of them, and from that time I feel shy ... So all that time they ask me, they talk. One person talk and they leave another two, another two another two, no sleeping, no food, nothing, and cold, cold. ... After time, I don ’ t know how many, it ’ s weeks and weeks, they give me chance to sleep once. Maybe once in the two months, two weeks. I don ’ t know exactly, once a month. I again make me sit on the floor. Also cold, naked, try to cover my private part, because the shackles even I can ’ t because kind of chair like this but it have [via President and Language Analyst arm rest]. So I tried to cover nothing and start makes me stand hours and hours. ... I request, I tell him, ‘ do as you like; tell me the time I want to pray. No chance to pray. Give me the time and not need water. I need pray without cleaning. I should make some cleaning before I pray ’. I make request number of time. Nothing. After this put me in the big box same my tall but it ’ s not and they put the bucket with me. Toilet bucket. I had no chance to sit, only in the bucket and because the bucket its not have cover or sometime they put cover I found myself inside the bucket like this [trying to move and show while in chair]. And the place too close; I take hours and hours ‘ til he came and save me from the bucket, again and again sorry it full of urine. And start from that time-time and time put me in this and put me in small box. I can ’ t do anything. I can ’ t sit stay do anything and hours and hours. Start beat me in the wall ... Beat me badly in the back, in my back, in my head. Last thing, of course same thing use again and again, different time, plus they put me in the same [via Language Analyst] a medical bed. They shackle me completely, even my head; I can ’ t do anything. Like this and they put one cloth in my mouth and they put water, water, water. ... Last thing they do they – I am still shackled. I was naked; I am naked; they bring the [via Language Analyst] interrogator, female interrogator in front. I was naked, like this. ... But the truth after this after the second – or second – after one complete year, two year, they start tell me the time for the pray and slowly, slowly, circumstance became good. They told me sorry we discover that you are not number three, not a partner even not a fighter. ... ” 154. At the fact-finding hearing Mr J.G.S. made the following statements concerning the treatment to which the applicant could be subjected during his alleged detention in Lithuania: “The bulk of the enhanced interrogation to which Mr Zubaydah was subjected is clearly documented as having taken place in Thailand. There he was waterboarded and there he was subjected to a grotesque form of experimentation whereby unauthorised and sometimes barely authorised techniques were practised upon him as the CIA developed its early rules and regulations as to how detainees could lawfully be interrogated. By the time he reached Poland, however, he had been declared compliant. So it is not possible to state with certainty which additional techniques were used on him in Europe.” In reply to the judges ’ further question regarding that matter, he stated: “It is not possible to pronounce categorically on specific interrogation techniques or other forms of treatment or ill-treatment practised on Mr Zubaydah in Lithuania, because, again, they are not explicitly described in any of the reports available to us in the public domain. However, I would be prepared to state that the conditions of confinement in the ‘ black site ’ in Lithuania alone pass a threshold that in our human rights protection culture, signified by the European Convention on Human Rights, amounts to a violation of Article 3. There are, by routine and described in documents, practices such as sensory deprivation, sleep deprivation, denial of religious rights, incommunicado detention, indefinite detention on a prolonged basis, as well as a variety of conditioning techniques, as the CIA calls them, which in any other case would themselves be considered forms of ill-treatment. Here they do not even warrant mention in the reporting, because they had become commonplace, but I would not wish for the absence of explicit descriptions of waterboarding or other EITs to be taken as a sign that he was not ill-treated during his time in Lithuania. And I should also point out that, having been detained at that point for more than three years and even up to four years in the totality of his transfer through the sites, there must have been a cumulative effect to the ill-treatment which he underwent at the hands of his captors.” 155. Mr Black testified as follows: “... [I]t is true that relatively there is less information about treatment of prisoners in the CIA detention programme in 2005-2006 than there is in the previous years. There are a few exceptions to this. The recently declassified Memorandum from the CIA ’ s Office of Medical Services, which is part of the batch of the records declassified earlier this month, is dated December 2004. It comes into force directly prior to the time that – I take - Abu Zubaydah to have been rendered into Lithuania. This document describes basically the full range of enhanced interrogation techniques, in other words it makes clear that as of December 2004 and thus into 2005, that this full range of techniques is available, it is on the menu. In terms to what extent these techniques were used, we have relatively few indications but there are a couple that I think are worth mentioning. The Senate Report states that there are several occasions on which for example the CIA failed to adhere to his own guidelines in keeping naked prisoners in cold conditions. The guidelines are set out in the Memorandum that I just mentioned, the December 2004 Office of Medical Services Memorandum. The Senate Report says that after that Memorandum, going up until the last time it cites is December 2005, there were prisoners who were being held in colder conditions than what this Memorandum sanctioned. Likewise there were prisoners who were captured in 2005, including Abu Faraj al-Libbi, whom we know from the Senate Report was exposed to lengthy sleep deprivation. Beyond that I do not have any further information about precise conditions, although it is clear – it has been reiterated by the recent batch of declassified documents – that during this time 2005 – 2006, prisoners continued to be held in solitary confinement, that is clear. It is also clear that prior to their arrival in the last site in Afghanistan, which was in March 2006, they did not have any access to natural light. The first time they had access to natural light was following that arrival in March 2006. That is pretty much all I can say on the topic.” 156. The 2014 US Senate Committee Report states that “from Abu Zubaydah ’ s capture ... to his transfer to Department of Defense custody on September 5, 2006, information provided by Abu Zubaydah resulted in 766 disseminated intelligence reports”, of which ninety-five were produced during the initial phase of his detention in April and May 2002 (which included a period during which the applicant was on life support and unable to speak) and ninety-one during the months of August and September 2002. E. The applicant ’ s further transfers during CIA custody (until 5 September 2006) as reconstructed on the basis of the 2014 US Senate Committee Report and other documents and as corroborated by experts heard by the Court 157. In his initial submissions the applicant maintained that after he had been transferred by extraordinary rendition out of Lithuania, he had been detained in an undisclosed facility in a third country, from where he had later been transferred to US custody at Camp 7 at the US Naval Base at Guantánamo Bay, Cuba. 158. As stated above, according to the experts, on 2 5 March 2006 the applicant was transferred from Lithuania to Afghanistan via a double-plane switch in Cairo and was subsequently detained at the CIA ’ s only remaining detention facility – Detention Site Brown (see paragraphs 133-134, 138 and 140-144 above). 159. The 2014 US Senate Committee Report refers to Detention Site Brown in the context of rendition and secret detention of Khalid Sheikh Mohammed (referred to as “KSM”) as follows: “KSM was transferred to DETENTION SITE [REDACTED] on [day and month REDACTED] 2005, to DETENTION SITE BROWN on March [two-digit date REDACTED] 2006, and to U.S. military detention at Guantánamo Bay, Cuba, on September 5, 2006.” 160. The 2014 US Senate Committee Report states that the applicant “was transferred to U.S. military custody on September 5, 2006.” F. The applicant ’ s detention at the US Guantánamo Bay facility since 5 September 2006 to present 161. Since 5 September 2006 the applicant has been detained in the US Guantánamo Bay Naval Base in the highest security Camp 7 in – as described by his lawyers – “extreme conditions of detention”. Camp 7 was established in 2006 to hold the high-value detainees transferred from the CIA to military custody. Its location is classified. It currently holds fifteen prisoners, including the applicant and Mr Al Nashiri. Visitors other than lawyers are not allowed in that part of the Internment Facility. The inmates are required to wear hoods whenever they are transferred from the cell to meet with their lawyers or for other purposes. The applicant is subjected to a practical ban on his contact with the outside world, apart from mail contact with his family. 162. The Inter-American Commission on Human Rights ’ Report “Towards the Closure of Guantánamo”, published on 3 June 2015, describes general conditions in Camp 7 as follows: “120. Although progress has been made to improve conditions of detention at Guantánamo, there are still many areas of concern. The Inter-American Commission notes in this regard that detainees at Camp 7 do not enjoy the same treatment accorded to other prisoners; that health care faces many challenges, in particular given the ageing population at Guantánamo; and that religion is still a sensitive issue. Further, the IACHR is especially concerned with the suffering, fear and anguish caused by the situation of ongoing indefinite detention, which has led to several hunger strikes as a form of protest and, in some extreme cases, to the drastic decision by prisoners to end their lives. ... 122. The Inter-American Commission has received troubling information regarding prison conditions at Camp 7, a single-cell facility currently used to house a small group of special detainees, known as ‘ high-value detainees ’. These detainees are reportedly held incommunicado and are not subject to the same treatment accorded to other prisoners. On May 20, 2013, a group of eighteen military and civilian defense counsel representing the ‘ high-value detainees ’ sent a joint request to Secretary of Defense Charles Hagel to improve the conditions of confinement in Guantánamo. They pointed out that these detainees are not permitted to contact their families by telephone or video; that their access to religious materials has been restricted (such as the sayings and descriptions of the life of the Prophet Mohammed); that they have limited recreational opportunities; and that they are not permitted to participate in group prayer, contrary to the entitlements of other detainees. ... 136. The Inter-American Commission considers that the conditions of confinement described above constitute a violation of the right to humane treatment. Further, in order to guarantee that prisoners ’ rights are effectively protected in accordance with applicable international human rights standards, the State must ensure that all persons deprived of liberty have access to judicial remedies. The IACHR notes with deep concern that prisoners at Guantánamo have been prevented from litigating any aspect of the conditions of their detention before federal courts, which constitutes per se a violation of one of their most fundamental human rights. This point, as well as some recent developments regarding this issue, will be assessed in the chapter on access to justice. Further, as it will be addressed below, detainees ’ lack of legal protection and the resulting anguish caused by the uncertainty regarding their future has led them to take the extreme step of hunger strikes to demand changes in their situation.” 163. The applicant has not been charged with any criminal offence. The only review of the basis of his detention was carried out by a panel of military officials as part of the US military Combatant Status Review Tribunal on 27 March 2007 (see also paragraph 15 3 above). The panel determined that he could be detained. 164. The applicant is not listed for trial by military commission. He is one of the high-value detainees who remain “in indefinite detention” (see also paragraph 80 above). G. Psychological and physical effects of the HVD Programme on the applicant 165. According to the applicant, as a result of torture and ill-treatment to which he was subjected when held in detention under the HVD Programme, he is suffering from serious mental and physical health problems. The applicant ’ s US counsel have been unable to provide many of the details of his physical and psychological injuries because all information obtained from him is presumed classified. The lawyers have stated that publicly available records described how prior injuries had been exacerbated by his ill-treatment and by his extended isolation, resulting in his permanent brain damage and physical impairment. The applicant is suffering from blinding headaches and has developed an excruciating sensitivity to sound. Between 2008 and 2011 alone he experienced more than 300 seizures. At some point during his captivity, he lost his left eye. His physical pain has been compounded by his awareness that his mind has been slipping away. He suffers from partial amnesia and has difficulty remembering his family. H. Identification of locations of the colour code-named CIA detention sites in the 2014 US Senate Committee Report by experts 166. The experts heard by the Court identified the locations of the eight colour code-named CIA detention sites (see paragraph 2 4 above) as follows: Detention Site Green was located in Thailand, Detention Site Cobalt in Afghanistan, Detention Site Blue in Poland, Detention Site Violet in Lithuania, Detention Site Orange in Afghanistan, Detention Site Brown in Afghanistan, Detention Site Gray in Afghanistan, and Detention Site Black was identified as having been located in Romania (see also paragraphs 12 2 and 132-145 above; see also Al Nashiri v. Romania, cited above, § 159 ). I. Parliamentary inquiry in Lithuania 167. The facts set out below are based on the Annex to the Seimas ’ Resolution No. XI-659 of 19 January 2010 – “Findings of the parliamentary investigation by the Seimas Committee on National Security and Defence concerning the alleged transportation and confinement of persons detained by the Central Intelligence Agency of the United States of America on the territory of the Republic of Lithuania” (“CNSD Findings”; see paragraph 173 below), a document which contains a comprehensive description of a parliamentary investigation conducted in Lithuania in 2009 ‑ 2010 in the context of the alleged existence of a CIA secret detention facility in the country. 168. On 9 September 2009, in connection with various media reports and publicly expressed concerns regarding the alleged existence of a CIA secret detention facility in Lithuania, the Seimas Committee on National Security and Defence (“the CNSD” or “the Committee”) and the Seimas Committee on Foreign Affairs held a joint meeting at which they heard representatives of State institutions in relation to the media reports concerning the transportation and detention of CIA prisoners in the Republic of Lithuania. The committees did not receive any data confirming the existence of a CIA prison in Lithuania. Written replies submitted to them by State institutions denied that such a prison had ever existed. 169. On 20 October 2009, during his visit to Lithuania, the Commissioner for Human Rights of the Council of Europe, Mr Thomas Hammarberg urged the authorities to carry out a thorough investigation concerning the suspicions that a secret CIA prison had operated in the country. 170. On 20 October 2009, at a press conference, the President of the Republic, Ms Dalia Grybauskaitė, in reply to questions regarding the alleged existence of a CIA prison in Lithuania, said that she had “indirect suspicions” that it could have been in Lithuania. 1. The Seimas investigation and findings 171. On 5 November 2009 the Seimas adopted Resolution No. XI-459, assigning the CNSD to conduct a parliamentary investigation into the allegations of transportation and confinement of individuals detained by the CIA on Lithuanian territory. The following questions were posed to the CNSD: (1) whether CIA detainees were subject to transportation and confinement on the territory of the Republic of Lithuania; (2) whether secret CIA detention centres had operated on the territory of the Republic of Lithuania; (3) whether State institutions of the Republic of Lithuania (politicians, officers, civil servants) considered issues relating to activities of secret CIA detention centres or transportation and confinement of detainees in the Republic of Lithuania. 172. While conducting the parliamentary investigation, the CNSD interviewed, either orally or in writing, fifty-five individuals who might have been aware of information or who declared that they were aware of information relating to the issues under investigation. The Committee interviewed politicians, civil servants and officers who had held office between 2002 and 2005 or at the time of the investigation, including, among others, the Presidents of the Republic, the Speakers of the Seimas, the Prime Ministers, the Members of the European Parliament, the Ministers of National Defence, Foreign Affairs and the Interior, the Vice Minister of the Interior, the Commanders of the Armed Forces, the Chairmen and members of the Seimas Committee on National Security and Defence and the Seimas Committee on Foreign Affairs, the Directors and the Deputy Directors of the State Security Department (“SSD”), the Director and the Deputy Directors of the Second Investigation Department under the Ministry of National Defence, the Commanders and the Deputy Commanders of the State Border Guard Service at the Ministry of the Interior (“SBGS”), advisers to the Presidents of the Republic, the Director of the Civil Aviation Administration, the Director of Vilnius International Airport and the Aviation Security Director of Vilnius International Airport. 173. In addition, requests for submission of information in writing were addressed to the various ministries, the civil aviation administration, the SBGS, Vilnius International Airport, the Customs Department and other authorities. Requests were also submitted to the international organisation Amnesty International, Senator Dick Marty and, with the assistance of the Ministry of Foreign Affairs, the relevant authorities in the United States. The authorised representatives of the latter replied orally. In the course of the parliamentary investigation, some facilities and premises were inspected. 174. On 19 January 2010 the Seimas adopted Resolution No. XI-659, whereby it endorsed the CNSD Findings, which, in so far as relevant, read as follows: “ 1. Were CIA detainees subject to transportation and confinement on the territory of the Republic of Lithuania? According to the data of the state enterprise Oro navigacija [Air Navigation], in 2002-2005 the US aircraft referred to in the media and official investigations of the European Parliament as aircraft used to transport CIA detainees, i.e. N85VM (GLF4), N2189M (C-130), N8183J (C-130), N8213G (C-130), 510MG (GLF4), N313P (Boeing 737), No N379P, (GLF5), N1HC (GLF5), crossed Lithuania ’ s airspace on 29 occasions. These data were presented on 28 April 2006 when preparing a reply to an inquiry by Dick Marty, Chairman of the Committee on Legal Affairs and Human Rights of the Parliamentary Assembly of the Council of Europe, regarding the numbers of 41 aircraft indicated therein. In the course of the investigation, the Committee established that three occasions of crossing of Lithuania ’ s airspace were omitted in the mentioned reply to ... D. Marty ... and in the data provided by the state enterprise Oro navigacija : ( 1) CASA C-212 N96IBW, landed in Palanga on 2 January 2005; ( 2) Boeing 737 N787WH, landed in Palanga on 18 February 2005; ( 3) Boeing 737 N787WH, landed in Vilnius on 6 October 2005. In the course of the investigation, with a view to verifying whether the CIA-related aircraft indicated in the material of the Temporary Committee of the European Parliament landed at Lithuania ’ s airports and whether the enterprises referred to in the material made financial settlements for servicing of these aircraft, the Civil Aviation Administration was addressed and provided the information on the flights of the US aircraft, based on the data and financial documents of the companies and aircraft service enterprises operating at Vilnius, Kaunas, Šiauliai and Palanga airports. When comparing the submitted data with the material of the Temporary Committee of the European Parliament, it was established that: Two CIA-related aircraft landed at Vilnius International Airport: ( 1) ’ C-130 ’, registration No N8213G (4 February 2003, route Frankfurt-Vilnius-Warsaw, landed at 6.15 p.m., departed at 7.27 p.m.); 2) ’ Boeing 737 ’, registration No N787WH (6 October 2005, route Antalya-Tallinn-Vilnius-Oslo. A letter from Vilnius International Airport dated 7 December 2009 states that this aircraft arrived from Tirana at 4.54 a.m. and departed at 5.59 a.m. According to the documents of the SBGS, this aircraft arrived from Antalya and departed for Oslo). Three CIA-related aircraft landed at Palanga International Airport: ( 1) ’ CASA C-212 ’, registration No N961BW (2 January 2005, operator Presidential Airways, route Flesland (Norway)-Palanga-Simferopol (Ukraine), departed on 5 January 2005 at 9 a.m.); ( 2) ’ Boeing 737 ’, registration No N787WH (18 February 2005, operator Victory Aviation, route Bucharest-Palanga-Copenhagen, arrived at 6.09 p.m., departed at 7.30 p.m. It was recorded that the aircraft arrived carrying five passengers and three crew members); ( 3) ’ Boeing 737-800 ’, registration No N733MA (25 March 2006, route Porto (Portugal)-Palanga-Porto, arrived at 10.25 p.m. and departed at 11.55 p.m.). In the course of the investigation, the Committee did not establish any cases of CIA ‑ related aircraft landing at Kaunas and Šiauliai airports. Attention should be drawn to the fact that the Committee did not receive any data or documents from Vilnius International Airport or airport service companies confirming that on 20 September 2004 and in July 2005 (the exact date was not specified by the US television channel ABC News ) presumable CIA-related aircraft landed at Vilnius International Airport. In the course of the parliamentary investigation, the SSD submitted information regarding its cooperation with the SBGS in 2002-2006. It is evident from the documents submitted to the Committee that there had been an intensive exchange of data (including data provided by partners regarding the search for persons suspected of terrorism) in the field of combating terrorism. A period of time from April 2004 until September 2005 during which the SSD did not provide any information on the suspected terrorists to the SBGS should be singled out. During the investigation, three occasions were established on which, according to the testimony of the SSD officers, they received the aircraft and escorted what was brought by them with the knowledge of the heads of the SSD: ( 1) ’ Boeing 737 ’, registration No N787WH, which landed in Palanga on 18 February 2005. According to data submitted by the SBGS, five passengers arrived in that aircraft, none of whom was mentioned by the former Deputy Director General of the SSD Dainius Dabašinskas in the explanations he gave the Committee at the meeting. According to Customs data, no thorough customs inspection of the aircraft was carried out and no cargo was unloaded from it or onto it; ( 2) ’ Boeing 737 ’, registration No N787WH, which landed in Vilnius on 6 October 2005. According to data submitted by the SBGS, its officers were prevented from inspecting the aircraft; therefore, it is impossible to establish whether any passengers were on board of the aircraft. No customs inspection of the aircraft was carried out; ( 3) ’ Boeing 737-800 ’, registration No N733MA, which landed in Palanga on 25 March 2006. According to Customs data, no customs inspection was carried out. The documents of the SBGS contain no records of the landing and inspection of this aircraft. Persons providing explanations to the Committee indicated that in similar cases cooperation takes place in accordance with the provisions of the Law on Intelligence in relation to the provision of assistance to an intelligence service in getting unrestricted access to aircraft and access to/departure from the territory of the airport; however, as indicated by the information submitted by the SBGS, upon the landing of the unscheduled aircraft from Antalya at Vilnius International Airport at 5.15 am on 6 October 2005, civil aviation officers prevented the SBGS officer from approaching the aircraft. In his official report, the officer stated that a car drove away from the aircraft and left the territory of the airport border control point. Upon contacting the civil aviation officers, it was explained that the heads of the SBGS had been informed of the landing of the above mentioned aircraft and the actions taken by the civil aviation officers. The letter from the SSD marked as ‘ CLASSIFIED ’ regarding the mentioned event was received by the SBGS on 7 October 2005, i.e., post factum. It should to be noted that before the above mentioned event, the SSD had never issued any letters of similar content to other services. The explanations provided in the course of the investigation make it evident that oral arrangements had been made with representatives of the airport and aviation security. In the course of the investigation, another occasion was established on which the SSD applied to the SBGS with a similar letter (24 March 2006) in relation to the flight of an aircraft to Palanga airport on 25 March 2006. As explained by the heads of the SBGS, this is a common cooperation practice. According to Commander of the SBGS General S. Stripeika, had the SBGS received the letter from the SSD before 6 October 2005, the incident would have not occurred and officers of the SBGS would have not interfered with the activities of the SSD. In 2002-2005, the aircraft which official investigations link to the transportation of CIA detainees crossed the airspace of the Republic of Lithuania on repeated occasions. The data collected by the Committee indicate that CIA-related aircraft did land in Lithuania within the mentioned period of time. The Committee failed to establish whether CIA detainees were transported through the territory of the Republic of Lithuania or were brought into or out of the territory of the Republic of Lithuania; however, conditions for such transportation did exist. Deputy Director General of the SSD D. Dabašinskas, with the knowledge of Director General of the SSD A. Pocius, provided the US officers with opportunities to have unrestricted access to the aircraft on at least two occasions. In addition, at least on one occasion the opportunities for inspection of the aircraft by the SBGS officers were deliberately restricted. In all the above - mentioned cases, there was no customs inspection. Therefore, it was impossible to establish either the identity of the passengers or the purpose of the cargo. 2. Did secret CIA detention centres operate in the territory of the Republic of Lithuania? The cases of partnership cooperation which are of relevance to the parliamentary investigation, carried out by the SSD in 2002-2006 and involving the equipment of certain tailored facilities, may be referred to as Project No. 1 and Project No. 2. Based on the information received in the course of the parliamentary investigation, the implementation of partnership cooperation Project No. 1 was commenced by the SSD in 2002. In the course of the project, facilities suitable for holding detainees were equipped, taking account of the requests and conditions set out by the partners. Director General of the SSD M. Laurinkus and his deputy D. Dabašinskas both had knowledge of the project. When instructing the contractors to equip the facilities, the latter mentioned that the project ‘ had been blessed by the top officials of the State ’; however, according to the testimony of the then political leadership, they had not been informed of it. According to the data available to the Committee, the facilities were not used for the purpose of holding detainees. At present, they are used for other purposes. The SSD submitted information that based on the documents held by the SSD, these facilities were equipped for the purpose other than holding detainees. The implementation of Project No. 2, which was also examined in the course of the parliamentary investigation, was commenced by the SSD in the beginning of 2004. The necessary acquisitions were made for the purpose of implementation of the project, construction works were carried out to equip the facility, with the progress of works ensured by the partners themselves. The building was reconstructed to meet certain security requirements. The SSD officers participated in the implementation of this project together with partners and, according to the officers, had unrestricted access to all the premises of the facility, however, when representatives of the partners were present in the facility, they did not visit some of the premises. The time of such meetings and adequate arrangements were communicated to the SSD officers by Deputy Director General of the SSD D. Dabašinskas. According to the SSD officers, representatives of the partners were never left alone in the facility. They were always accompanied by either D. Dabašinskas or one of the SSD officers. According to the information received in the course of the investigation, it is evident that the SSD did not seek to control the activities of the partners in Project No. 2. The SSD did not monitor and record cargoes brought in and out and did not control the arrival and departure of the partners; in addition, the SSD did not always have the possibility to observe every person arriving and departing. The procedure for accounting and using monetary funds and material valuables intended for financing of joint actions is approved by internal regulations of the SSD, however, based on the explanation provided in the course of the parliamentary investigation regarding one of the implemented joint projects and monetary funds used for its implementation, the accounting of these funds was inappropriate. Explanations provided by individual persons in relation to the sources of financing of joint actions, amounts of monetary funds used for separate actions or accounting thereof are not consistent and therefore require further investigation. The Committee established that the SSD had received a request from the partners to equip facilities in Lithuania suitable for holding detainees. While implementing Project No. 1 in 2002, conditions were created for holding detainees in Lithuania; however, according to the data available to the Committee, the premises were not used for that purpose. The persons who gave testimony to the Committee deny any preconditions for and possibilities of holding and interrogating detainees at the facilities of Project No. 2; however, the layout of the building, its enclosed nature and protection of the perimeter as well as fragmented presence of the SSD staff in the premises allowed for the performance of actions by officers of the partners without the control of the SSD and use of the infrastructure at their discretion. 3. Did state institutions of the Republic of Lithuania (politicians, officers and civil servants) consider the issues relating to activities of secret CIA detention centres in the territory of the Republic of Lithuania, transportation and confinement of detainees in the territory of the Republic of Lithuania? The Committee received certain information about international cooperation of the SSD with partners and application of special measures provided for in the Law on Intelligence during joint operations. The legal basis of international cooperation of the SSD is laid down in the Law on Intelligence. ... When summarising [the relevant provisions of the Law on Intelligence], a conclusion should be drawn that legal acts do not directly require the directions (tasks) of international cooperation of the SSD to be approved at any specific political level (at the State Defence Council, the CNSD); such directions (tasks) used to arise from a general need for international cooperation and direct contacts of the SSD with secret services of other countries. However, in seeking to obtain recommendations of the State Defence Council concerning international cooperation, the SSD could submit to the State Defence Council (or the President of the Republic, who initiates sittings of the State Defence Council) the information necessary to draw up such recommendations. In 2002-2005, such issues were not considered at the State Defence Council and there were no recommendations. This is partially confirmed by the letter of the Secretary of the State Defence Council of 3 December 2009, stating that in 2001-2005 wide-scale direct cooperation between the SSD and CIA was mentioned only once - at a sitting of the State Defence Council (19 September 2001) when considering the issue on international terrorism and anti-terrorist actions and prevention, crisis management and the legal base. None of the country ’ s top officials, according to them, were informed about the purposes and content of partnership cooperation of the SSD in 2002. Only several officers of the SSD had knowledge of Project No. 1. According to the testimony of the former Director General of the SSD M. Laurinkus, in mid-2003 he informed the then President of the Republic R. Paksas about a possibility, after Lithuania ’ s accession to NATO, to receive a request to participate in the programme concerning the transportation of detainees. According to the testimony of R. Paksas, Lithuania was requested permission to bring into the country the persons suspected of terrorism. The information submitted to the President of the Republic did not contain any mention of a detention centre or a prison. In August of the same year, when President of the Republic R. Paksas enquired the then acting Director General D. Dabašinskas if there was any new information concerning Lithuania ’ s participation in the said programme, he was told that there was no new information. Although Director General of the SSD M. Laurinkus received a negative answer from President of the Republic R. Paksas regarding the bringing into the Republic of Lithuania of persons interrogated by the USA, neither the then President of the Republic R. Paksas nor acting President of the Republic A. Paulauskas was asked for political approval of activities under Project No. 2. M. Laurinkus had knowledge of launching the activities under Project No. 2 in March ‑ April 2004. According to President of the Republic V. Adamkus, he was informed about cooperation with the USA in general terms and no information was provided to him about running of Project No. 2 in 2004-2006. According to A. Pocius, President of the Republic V. Adamkus and his advisors were adequately informed of the project. Several SSD officers, including M. Laurinkus, A. Pocius, D. Dabašinskas, had the knowledge of Project No. 2 at the time of launching and running thereof. On 18 August 2009, Head of the SSD P. Malakauskas informed President of the Republic D. Grybauskaitė (as well as former Presidents of the Republic V. Adamkus and A. M. Brazauskas) that ABC News was preparing articles about the CIA detainees who had allegedly been confined in Lithuania and planning to name one of the facilities owned by the SSD as a prison. P. Malakauskas could not deny the possibility of confinement in Lithuania of the persons detained by the CIA. Likewise, while considering the reports of the SSD, the CNSD was provided information about international cooperation in a fragmentary manner. For instance, when considering the SSD ’ s activity report of 2003, it was mentioned that ‘ cooperation with NATO member states is in progress. A wish for more active cooperation with the SSD can already be perceived on the side of the Allies, which will require additional staff, investments. ’ Decisions of the CNSD on the SSD ’ s reports never contained any proposals concerning international cooperation. Information gathered by the Committee and the explanations received by it show that the State Defence Council, the Government and the Seimas have not considered issues relating to any activities of secret CIA detention centres in the territory of the Republic of Lithuania, or to the transportation and confinement of detainees in the territory of the Republic of Lithuania. According to the country ’ s top officials (Presidents of the Republic, Prime Ministers, and Speakers of the Seimas), the members of the CNSD of the Seimas were informed about the international cooperation between the SSD and the CIA in a general fashion, without discussing specific operations or their outcomes. The mention of wide-scale direct cooperation between the SSD and CIA was made only once, at a sitting of the State Defence Council (19 September 2001) when considering the issue of international terrorism and anti-terrorist actions and prevention, crisis management and the legal bases for all these. Transportation and detention of detainees were not discussed at the sitting of the State Defence Council of Lithuania. The CNSD of the Seimas was not informed of the nature of the cooperation taking place. On the basis of the information received, the Committee established that when carrying out the SSD partnership cooperation Project No. 1 and Project No. 2, the then heads of the SSD did not inform any of the country ’ s top officials of the purposes and content of the said Projects.” 175. The final proposal was formulated as follows: “to propose to the Prosecutor General ’ s Office to investigate whether the actions of M. Laurinkus, A. Pocius and D. Dabašinskas had elements of abuse of office or exceeding authority”. 176. The findings were accompanied by eight recommendations, including, among other things, “enhancing coordination and control of activities of intelligence services”, “improving the provision of information to the country ’ s top officials” and “improving provisions of the Law on Intelligence”. 2. Extracts from transcripts of the Seimas ’ debates on the CNSD Findings 177. The applicant supplied a summary of the transcripts of the debates on the CNSD Findings held in the Lithuanian Parliament on 14 January 2010. 178. That documents reads, in so far as relevant, as follows: “MP A. Anušauskas, Chairman of the CNSD, is invited to present the draft Resolution on the Findings. ... During the investigation, the Committee obtained considerable amount of secret information, ranging from restricted to highly classified information marked as ‘ Top Secret ’. Because of the high amount of classified information, the preparation of the findings was not an easy task. The classified information was related to the activities of secret services and subtle options the services use in their work. Without these subtle options, neither intelligence nor cooperation with the special services of other states in such areas as fight with terrorism would be possible. Despite that, parliamentary control of secret services must nevertheless be exceptional and strong. Some of the data, gathered during the investigation, were not made public as it constitutes a state secret. To summarize the investigation, the Committee has established that CIA aircraft have landed in Lithuania. It has not established whether the persons detained by the CIA were transported to or transferred through the Lithuanian territory; the heads of the SSD at that time created conditions for the U.S. officers to access the planes unobstructed at least on two occasions. Moreover, at least once State Border Guard Service officers were prevented from performing border control checks. During all of the mentioned incidents, customs inspections were not carried out. The Committee has established that the SSD received a request from partners to install premises in Lithuania, suitable for keeping detainees. ... QUESTIONS (all replies are by MP Anušauskas, Conservative Party, ruling coalition) MP V. Mazuronis (Order and Justice Party, opposition) Question : I pity you that you had such an ungrateful task, similar to searching for life on Mars. I can only express my sympathy for you. But my question is that I have found in the text of the findings that President Adamkus was briefed of the cooperation with the U.S. in general terms only, but he was never informed of the Project No. 2. Mr Pocius claims in his testimony, however, that the President and his advisers were adequately informed. I can see a contradiction here and my question would be who of those two individuals have lied? The one saying he was not informed or the one saying he has informed properly? Or maybe there is a way, according to our laws, of informing without actually giving information? Reply : Yes, the question of the level of awareness by the heads of State was being actively discussed. I have to say that in this case we relied on oral testimonies. The thing is that there are no written documents, and no recommendations issued by the State Defence Council. That means, we had to rely on testimonies given by the highest state officials. On the other hand, the former SSD officer, who was named by you, introduced us to four methods of passing information onto the head of State. Only one of those methods seemed adequate. I will not name all of them, but one of them was ‘ I have informed through President ’ s advisers, and I don ’ t know if they understood ’. In this case [replying to your question - M.A.], I think, we can select any of those two options which seems more acceptable to us. MP V. Andriukaitis (Social Democratic Party, opposition) Question : The Parliament has set very specific questions for the inquiry, and one of them was whether CIA detainees were transported to and detained in the territory of Lithuania. Your answer to that question is Solomon-like - that the Committee has not established but the preconditions for transportation existed. Preconditions for transportation exist in the whole world: trains, planes are flying, bicycles are being ridden. To the question whether secret detention centres were operating, you have also failed to answer. I want to ask you what exactly prevented you from answering those very specific questions - lack of data, lack of competence or maybe something else. Reply : First of all, the Committee is not talking of such general preconditions as existence of airports, but very specific preconditions. That is, preconditions created by the SSD officers to enter the territory of Lithuania unobstructed, without aircraft inspections and customs inspections. These are relatively specific preconditions. In this case, the findings are not based on assumptions, I will stress this, but on the testimonies of the witnesses and the documents obtained. Yes, we cannot show in the findings all of the details revealed by the testimonies and the contents of the documents obtained, because the detailed information on cooperation with foreign secret services, its proceedings, objects, contents and results constitute a state secret. In this case, this is not included in the text of the findings, but that does not mean that the Committee has not examined this data. Bearing this in mind, what might appear as assumptions at first, are based on facts and documents. ... MP J. Juozapaitis (Social Democratic Party, opposition) Question : Your committee writes in the findings that the preconditions were created for transportation and detention of persons. My question would be under whose orders and who has created those preconditions for transportation and detention of those prisoners in Lithuania? Reply: I have to mention one circumstance which is often ignored. The Council of Europe and the European Parliament have also conducted investigations and established aircraft, planes which were transporting the prisoners. Some of them have acquired very clear names, and their routes were always directed to Guantánamo, and then back to Afghanistan, transiting through European states. A list of the aircraft emerged during those investigations. The aircraft was linked with transportation of prisoners. Yes, it is not known what was being transported, but it is known that the prisoners were being transported through European states. The aircraft have crossed Lithuanian airspace too. Who gave [the orders ... ] and who created preconditions? We named those individuals; three officers who were serving as deputies to the head of SSD, they are responsible for those actions and possible violations of the laws. ... MP J. Veselka (Order and Justice Party, opposition) Question : It is evident from your findings that a secret detention centre was built here for CIA money. Secondly, there were planes that were prevented by Dabašinskas from inspection. Further, George Bush has declared during his visit, that Lithuanian enemies are the US enemies. With no purpose, no one gives this kind of promises. Further, former SSD heads, as I see them, were great careerists and political cowards. Fifthly, former President Paksas testified to you that the SSD heads informed him about these matters. Hence, I draw the conclusion that the rest of the heads, who pretended they knew nothing, they, honestly speaking, lied to you, because those SSD officers, careerists and political cowards, could not have done this independently. Or do you think it ’ s possible? What needs to be done to make the heads of State to tell the truth in this kind of situation? Reply : There are amendments being prepared. First of all, it is necessary to make sure that document trail is left, because in this case a lot was being done by oral arrangements. I would not dare to claim the heads of State have lied. More likely they were not adequately informed, and their advisers testified that they were not being informed to an extent so that to get a clear picture of cooperation with partners. The provision of Intelligence Law, that some of the actions require recommendations from the State Defence Council, was ignored.” J. Criminal investigation in Lithuania 1. Investigation conducted in 2010-2011 179. On 22 January 2010, the Prosecutor General ’ s Office opened a pre-trial investigation in criminal case No. 01-2-00016-10, in relation to abuse of office, as defined in Article 228 § 1 of the Criminal Code. The scope of the investigation was defined by the circumstances stated in the CNSD Findings: (1) the arrival of the United States CIA aircraft in Lithuania and departure therefrom, what access United States officials had to the aircraft, and the inspection of the goods and passengers on the aircraft; (2) the implementation of Project No. 1 and Project No. 2; (3) whether the leadership of the State Security Department kept the highest officials of the State informed on the objectives and the content of Project No. 1 and Project No. 2. Accordingly, the pre-trial investigation had focussed on unrestricted landing and departure of aircraft at Vilnius International Airport and Palanga International Airport, equipment and use of Project No. 1 and equipment and use of Project No. 2; possible involvement of the highest officials of the State in activities related to the operation of detention centres, detainees transportation and detention in the territory of the Republic of Lithuania. 180. On 5 February 2010 the Speaker of the Seimas gave her permission to the prosecutors to consult the classified material from the parliamentary inquiry. 181. From 10 February to 14 June 2010 the prosecutor took evidence from fifty-five witnesses, including persons holding high-ranking posts in the SSD, the SBGS and employees of Vilnius and Palanga airports. The witness evidence is classified secret. The Government produced a publicly available summary of witness testimony, which is rendered below (see paragraphs 301-246 below). 182. On 18 February 2010 the prosecutor asked the SBGS for information concerning an incident that had taken place on 6 October 2005 at 5.15 a.m. when the SBGS officer, a certain R.R. (see also paragraph 36 6 below) had been denied access to the aircraft whose landing had been unplanned and he could not inspect that aircraft. On the same day, the prosecutor also asked the authorities of Vilnius International Airport for information as to whether the SSD ’ s letter regarding actions performed by the SSD in the airport on the night of 6 October 2005 had been received before that date. 183. On 18 February 2010 the Administration of Civil Aviation informed the prosecutor that, as regards the arrival of aircraft in Vilnius airport on 6 October 2005, they could have confused the code of Antalya and Tirana due to their similarity. 184. On 3 March 2010 the prosecutor asked the Customs Department for certain documents and information whether a customs inspection had been carried out in respect of, among others, the plane N787WH that had landed in Vilnius airport from Antalya, including the cargo on board the plane or the luggage of the passengers. On 12 April 2010 the Customs Department replied that the flight from Antalya had not been inspected and that neither information about the passengers, nor their luggage nor the cargo had been recorded. It also stated that the plane N787WH that had landed on 18 February 2005 at 8.09 p.m. at Palanga airport had not been recorded. 185. On 3 and 4 March 2010 the prosecutor made various requests for information and documents to the SBGS and Vilnius and Palanga airports. In particular, he asked for copies of any SSD ’ s requests for access to the aircraft, airport registration records, flight schedules and flight service invoices. He subsequently received the following replies: (a) the SBGS had received a classified letter from the SSD regarding access to the aircraft on 6 October 2005 after that date; (b) Vilnius airport had not received the SSD ’ s requests; (c) flight schedules supplied by Vilnius airport confirmed that on 6 October 2005 the plane N787WH had arrived from Tirana and not from Antalya; it had then departed for Oslo; (d) Palanga airport had received no requests from the SSD; (e) flight schedules supplied by Palanga airport confirmed that N787WH had been listed as the flight from Bucharest to Copenhagen. 186. On 17 March 2010 the prosecutor carried out an on-site inspection of Project No. 1. In that connection, a record of the inspection and plan of the site were drawn up, and photos of the site were made (see also paragraph 3 61 below). 187. On 2 April 2010 the prosecutor received information relating to the transfer of title to Project No. 2 (land, buildings and other assets) to the State and the transfer of the property into the SSD ’ s trust. 188. On 12 and 13 April 2010 the prosecutor made further requests for information and documents to the Aviation Security authorities at Vilnius airport and to the Ministry for Transport and Communications. 189. On 27 May 2010 the SSD supplied copies of documents, including an operational action plan regarding the selection of premises for “the protection of secret intelligence collaborators” (see also paragraph 36 5 below). 190. On 4 June 2010 the prosecutor carried out an on-site inspection of Project No. 2. In that connection, a record of the inspection and plan of the site were drawn up, and photos were made (see also paragraph 3 62 below). 191. On 20 September 2010, Reprieve made a “request for investigation” to the Prosecutor General, stating that they were providing legal assistance to the applicant and asking that the prosecutor “urgently investigate new and credible allegations” that Abu Zubaydah had been held by the US in Lithuania “sometime from 2004 to 2006”. They also asked the prosecutor to seek clarifications from the applicant and order an “urgent preservation and disclosure” of all relevant evidence in the possession of US and Lithuanian authorities. As regards the applicant ’ s clarifications, they submitted a list of questions to him, offering assistance in transmitting them to him and making a declassification request to the US authorities in respect of his future answers. In the alternative or in addition, they proposed that the Lithuanian authorities could ask the US authorities to be allowed to interview the applicant themselves, with counsel present. They provided the following factual information on the applicant ’ s secret detention: “Unclassified evidence now in the public domain confirms that after being held in Thailand for around eight months, on 4 December 2002, Mr Husayn was ‘ rendered ’ with another prisoner to a secret prison in Szymany, Poland. Mr Husayn was held in Szymany for almost ten months before being transferred along with four other prisoners to a then-secret CIA section of the US military base at Guantánamo Bay. According to recent media reports, Mr Husayn was then held near Rabat, Morocco. Mr Husayn arrived in Morocco in the spring of 2004. Between then and his second rendition to Guantánamo Bay in September 2006, recent information has come to us from a confidential and extremely reliable unclassified source, confirming that Mr Husayn was held in a secret CIA prison in Lithuania. This information come from the most credible sources inside the United States, and is not subject to doubt. We need hardly remind you of Lithuania ’ s duty to seriously investigate these allegations, and the importance of the preliminary work done by journalists and other fact-finders who protect their sources, in the exposure of US abuses on European soil.” 192. Mr Darius Raulušaitis, Deputy Prosecutor General, responded on 27 September 2010, explaining that the ongoing investigation already included the crimes allegedly committed against Abu Zubaydah: “[D]uring the pre-trial investigation not only were the circumstances related to abuse of official position with major legal significance (which was why the pre-trial investigation was initiated) investigated, but also the circumstances which define other criminal acts of which possible individual signs may be seen during the pre-trial investigation. Among such criminal acts are those you have pointed out should also be mentioned, namely illegal deprivation of liberty (Article 146 of the Criminal Code) as well as illegal transportation of people across national borders (Article 292 of the Criminal Code). Considering the fact that the pre-trial investigation in relation to the circumstances provided in your application is already being conducted, please be advised that the circumstances provided in your application will be considered when performing the said pre-trial investigation No. 01-2-00016-10. ” 193. Mr Raulušaitis asked Reprieve to submit all written information in their possession, which would establish Abu Zubaydah ’ s presence in Lithuania in the context of the CIA detention, interrogation and rendition programme and to indicate the “confidential and extremely reliable unclassified source” of information relied on by them. 194. Reprieve replied on 18 November 2010. Their letter (referring to the applicant as “Mr Husayn” or “Mr Zubaydah”), in so far as relevant, read as follows. As regards the provision of information: “As you are likely aware, there are substantial obstacles to obtaining and providing this information to you. But we are working diligently to overcome them. Mr Husayn ’ s communications are subject to U.S. government imposed restrictions which require his U.S. counsel to submit all written communications from Mr Husayn to a government censor. We are in the process of attempting to obtain a statement from Mr Husayn that will provide evidence relevant to the questions submitted. We previously recommended that, in addition, the Lithuanian authorities also request from the US authorities that they be allowed to interview Mr Husayn themselves, with counsel present. I note that a bilateral treaty provides your office with an agreed mechanism to seek independently such information from Mr Zubaydah. I refer specifically to the Mutual Legal Assistance in Criminal Matters Treaty between the United States and Lithuania, which entered into force on 26 August 1999. In addition to the testimony of Mr Zubaydah, you can seek to obtain numerous additional sources of information relevant to your investigation, some of which are listed below.” As regards sources of evidence that the prosecutor should pursue as part of a thorough investigation, Reprieve proposed that the prosecutor: “1. Sought to obtain testimony of Abu Zubaydah, regarding the unlawful detention and subjection to torture and inhuman, degrading treatment as well as the circumstances connected with his transportation between other places of detention and circumstances allowing the identification of the place where he was detained in the Republic of Lithuania; 2. Sought to obtain testimony regarding the capture of Abu Zubaydah, place or places of his detention, conditions in which he was detained, methods of his interrogation used by CIA officers and other persons who had access to him, from George Tenet (General Director of the CIA between 11 July 1997 and 11 July 2004); John McLaughlin (acting General Director of the CIA between 11 July 2004 and 24 September 2004); Porter Goss (General Director of the CIA between 24 September 2004 and 30 May 2006); Michael Hayden (General Director of the CIA between 30 May 2006 and 12 February 2009) and Leon Panetta (current Director of the CIA) as well as from other persons cooperating with CIA officers within the territory of the Republic of Lithuania and persons possessing knowledge about their activities; 3. Sought to obtain evidence from national and international repositories of aviation and flight data, including Eurocontrol and SITA, regarding flights into and out of Lithuania during this period by the following planes mentioned in the public record: N787WH, N733MA, N8213G, N88ZL, N961BW, N1HC and N63MU. In particular, please inform me whether you have sought to obtain records regarding the flights of a. a plane registered as N961BW on or about 2 January 2005 b. a plane registered as N787WH on or about 18 February 2005 c. a plane registered as N733MA on or about 25 March 2006 d. a plane registered as N63MU on or about 28 July 2005, probably arriving at Vilnius Airport from Kabul; e. Any other suspicious flights during the relevant time period; 4. Sought to obtain evidence from the sites of the alleged prisons and their environs, including eyewitness testimony, forensic testimony and testimony of potential key witnesses including employees at those sites during the period in question; and to this end required the preservation of evidence on the two identified sites, including traces of blood, hair and other biological specimens that would enable the prosecutor to identify the victims and perpetrators; 5. Sought to obtain testimony from the companies involved in flights into and out of Lithuania during this period by the planes discussed in the Committee ’ s findings, including those who took part in trip planning, ground handling, refuelling, trash disposal and other services. 6. Sought to obtain testimony on flight routes and cargo, human and otherwise, from captain and crew flight into and out of Lithuania during this period by the planes mentioned above; 7. Sought to obtain testimony concerning conditions of confinement at CIA black sites from Geoff Loane and other authors of the International Committee of the Red Cross Report on the treatment of the fourteen high-value detainees in CIA custody dated 14 February 2007; 8. Sought to obtain testimony from key witnesses from Lithuanian state institutions, regarding cooperation with the USA in the ‘ War on terror ’ during the period in question, including former [Minister of National Defence] Gediminas Kirkilas, former President [of the Republic] Valdas Adamkus, former [Minister of the Interior] Virgilijus Bulovas, former [Minister of the Interior] Gintaras Furmanavičius, former [Minister of Foreign Affairs] Antanas Valionis, former [Minister of National Defence] Linas Linkevičius, former Deputy Director [of the] State Security Department Darius Jurgelevičius, former [Deputy Director] for Intelligence for State Security [Department] Dainius Dabašinskas, former [Minister of Foreign Affairs] Vygaudas Ušackas, President [of the Republic] Dalia Grybauskaitė, Prime Minister Andrius Kubilius; [Dainius] Žalimas, legal adviser to the Lithuanian [Ministry of National Defence].” Reprieve also requested information about the progress of the investigation. 195. On 13 January 2011 the prosecutor refused Reprieve ’ s request, on the basis that Reprieve was “not a party to the proceedings [with] the right to examine the material of the pre-trial investigation”. The prosecutor also noted that, in accordance with Article 177 § 1 of the Code of Criminal Procedure, the material of the pre-trial investigation was not public. 196. On 14 January 2011 the prosecutor discontinued the pre-trial investigation No. 01-2-00016-10 on the ground that “no action/inaction had been committed which constituted evidence of a criminal offence or a criminal misdemeanour.” The decision was based on Articles 3 § 1 (1), 212 § 1, 214 and 216 of the Code of Criminal Procedure. 197. The decision stated that in the course of the pre-trial investigation the persons questioned had been those relevant to the subject matter of the investigation and possessing significant information for the resolution of the case. Documents essential for the pre-trial investigation were obtained, and information and premises inspected: these were referred to in the CNSD Findings as Project No. 1 and Project No. 2. For the prosecutor, the totality of the information obtained in the course of the pre-trial investigation was sufficient to reach a conclusion and to adopt a procedural decision. It was also noted that a large part of the information obtained in the course of the investigation was to be treated as classified, because it constituted State or official secrets. Accordingly, such information was not discussed in the report in detail, and the document was restricted to the presentation of the grounds on which the procedural decision was based. Lastly, the prosecutor observed that in the context of the pre-trial investigation he had examined not only material related to alleged abuse of office, but also whether there was evidence of any other criminal offences in connection with the matters investigated. 198. As regards the arrival of the United States CIA aircraft in Lithuania and departure therefrom, the access the United States officials had to the aircraft and the inspection of goods and passengers on the aircraft, the prosecutor found: “In the course of the pre-trial investigation it has been established that the aircraft linked with the United States Central Intelligence Agency did arrive in and depart from the Republic of Lithuania. It has also been established that on some occasions Customs and State Border Protection Service inspections ... were not carried out. However, on every occasion such actions were taken in accordance with the procedure stipulated by the Law on Intelligence [Article 9] and the appropriate airport and State Border Protection Service officials had been advised in advance in writing (or verbally) [that SSD officials would meet the aircraft and the goods]. This was confirmed by the documents in the case file which were provided by the SSD, and also by witnesses who have been questioned – airport staff and officials of the SBGS and the SSD. ... It should be noted that Article 16 of the Law on Intelligence stipulates that State institutions and officials are not allowed to interfere with or otherwise influence intelligence activities carried out by intelligence officers. Official vehicles of intelligence staff may not be inspected without the permission of the Prosecutor General. No data have been obtained in the course of the pre-trial investigation indicating that the aforementioned aircraft were used to illegally bring or remove any persons [to and from Lithuanian territory]. On the contrary, those questioned in the course of the investigation either categorically denied this or stated that they did not have any information in that regard. Obviously, given that no inspection of the aircraft or the motor vehicles used by the intelligence officers had been carried out, this possibility, which is exceptionally theoretical, does remain (and it was so stated in the Parliament ’ s CNSD Findings). However, there is no factual evidence to suggest that actions of such a nature (illegal transportation of persons) took place. Therefore, an assertion that the aircraft linked with the United States Central Intelligence Agency was used to transport or to bring to the territory of the Republic of Lithuania (or to remove from it) individuals detained by the CIA, from the point of view of criminal law is a hypothesis which is not supported by factual evidence. Such a hypothesis is of the same value as a hypothesis that any other persons or goods of restricted circulation were transported. In the absence of factual information to support this hypothesis, it is not possible to bring criminal charges or to continue criminal proceedings in this respect. To reach the opposite conclusion would require specific information, which could allow a finding that a criminal offence has been committed. ... As has been stated, no such information is available about any possibly criminal offences at the time of this procedural decision. Accordingly, it must be concluded that the SSD officers, who sought and obtained uninterrupted access to the airports ’ territory where the [CIA] aircraft had landed, had acted in a lawful manner and had not abused their office or exceeded the limits of their authority and, consequently, did not commit the criminal offence stipulated in Article 228 of the Criminal Code [abuse of office]. Having concluded that there is no information about illegal transportation of persons on board aircraft linked to the United States Central Intelligence Agency, it should also be stated that there are no grounds to bring criminal charges pursuant to Article 291 (unlawful crossing of a State border) or Article 292 (unlawful carrying of persons over a State border).” 199. Regarding the construction and operation of alleged secret prisons (Projects No. 1 and No. 2), the prosecutor stated that: “In the course of the pre-trial investigation it was established that the SSD of the Republic of Lithuania, together with the CIA of the United States of America, implemented, in 2002, Project No. 1, referred to in the CNSD Findings, and in 2004 implemented Project No. 2, referred in the CNSD Findings. Both projects had been related to the reconstruction and outfitting of the buildings. ... The statute of limitations on any alleged abuse of office violations, which was the subject of the investigation, meant that no prosecution was possible for violations in relation to Project No. 1. Nevertheless, regardless of this procedural impediment to the pre-trial investigation, it should also be noted that in the course thereof no unequivocal information was obtained to the effect that when implementing Project No. 1 the premises were outfitted specifically for the purpose of incarcerating detained persons. Factual information received about specific aspects of the premises (which allows the hypothesis that it was possible to keep a detained person there), when appraised together with the evidence that supports other (different) designations of the premises, and taking into account the fact that there is no information available that [any] detained persons had in fact been taken to or kept in those premises, does not provide a sufficient basis to charge a person with abuse of office and to pursue criminal proceedings. As to Project No. 2, in the course of the pre-trial investigation no data was received to suggest that this project was used for keeping detained persons. To the contrary, the factual information and the testimony of all the witnesses support other purposes and use of the building, while the circumstances referred to in the [CNSD] Findings that ‘ the layout of the building, its enclosed nature and protection of the perimeter as well as the sporadic presence of the SSD staff in the premises allowed for actions to be taken by officers of the partners without being monitored by the SSD, and also allowed them to use the infrastructure at their discretion ’ do not create a basis for criminal charges and merely confirm that cooperation between the SSD and the CIA took place and that the building served other purposes. The real purpose of the building may not be revealed, as it constitutes a State secret. It should be concluded that by the joint implementation of Project No. 1 and Project No. 2 by the SSD and the CIA a criminal offence under Article 228 of the Criminal Code [abuse of office] has not been committed. [Moreover], even without restricting oneself merely to legal appraisal of the potentially criminal actions suggested at the beginning of the pre-trial investigation and its qualification in accordance with Article 288 of the Criminal Code, it should be noted that there are no grounds to bring criminal charges in accordance with Articles 100 (treatment of people prohibited by international law) or 146 (unlawful restriction of liberty), because, as has already been mentioned, during the pre-trial investigation no information was obtained about unlawful transportation of persons, their detention, arrest or other unlawful restriction of their liberty. ... This decision to terminate the pre-trial investigation also gives the answer to the statement by Reprieve, received by the Office of the Prosecutor General of the Republic of Lithuania on 20 September 2010. The statement presented a version of events according to which the officers of the United States Central Intelligence Agency between spring 2004 and September 2006 conveyed a detained person, [Abu Zubaydah], to the Republic of Lithuania, detained him in Lithuania and removed him from there. Reprieve did not provide any factual information to support this, no source of information has been provided or revealed, and in the course of the pre-trial investigation, as has been noted, no information was received about illegal transportation of anyone, including [Abu Zubaydah], into or out of the Republic of Lithuania by the United States Central Intelligence Agency.” 200. On the question whether the leadership of the SSD had kept the highest officials of the State informed about the objectives and the content of Project No. 1 and Project No. 2, the prosecutor found: “As has been correctly stated in the [CNSD] Findings, the legal basis for the international cooperation of the SSD is stipulated in the Law on Intelligence, and there is no requirement in law for the directions (or tasks) relating to international cooperation to ‘ be cleared ’ at any political level (at the State Defence Council or the National Security and Defence Committee [of the Seimas]). The directions to be followed or tasks to be undertaken emerged from a general need for international cooperation and from direct contacts between the SSD and the special services of other countries. In the joint implementation of Project No. 1 and Project No. 2 by the SSD of the Republic of Lithuania together with the CIA of the United States of America, the leadership of the SSD at that time did not advise any high-level official of the State about the objectives and the content of these projects. Having concluded that the law does not stipulate a duty to supply this information, and also taking into account that this information, because of its scope, may be and should be shared on a ‘ need to know ’ basis, it follows that in this part [of the investigation] too there is no evidence of a criminal offence or abuse of office. ... When summing up the information gathered in the course of the pre-trial investigation, it has to be stated that all necessary and sufficient measures and possibilities had been exhausted to collect information on any criminal offences committed. However, in the course of the pre-trial investigation no objective data was gathered which would confirm that there had been abuse of office (or another criminal offence) and the totality of the factual information is not sufficient to find that criminal offences were committed. Therefore, at the present time it is not possible to conclude that criminal offences were committed. On the contrary, the hypothetical suppositions which were the basis for the pre-trial investigation [on the charges of abuse of office, Article 228 of the Criminal Code] have not been confirmed, and have been ruled out of evidence. Article 3 § 1 (1) of the Code of Criminal Procedure stipulates that criminal proceedings may not be started, and if they have been started they must be terminated, where there is no indication of a criminal offence or a criminal misdemeanour. Therefore, this pre-trial investigation No. 01-2-00016-10 must be discontinued, because there is nothing to indicate that there has been a criminal offence or misdemeanour. It has already been concluded that, to summarise the factual information contained in the material of the pre-trial investigation about the cooperation between the SSD and the United States Central Intelligence Agency in Project No. 1 and Project No. 2, no criminal offence has been committed as regards provision of information to the highest officials of the State. However, there is sufficient evidence to find that actions of the former chief executives of the SSD who had coordinated the cooperation between the SSD and the United States Central Intelligence Agency and of those who took part in that cooperation, Mečys Laurinkus, Arvydas Pocius and Dainius Dabašinskas, as well as actions of the chief executives of the SSD and its other staff who were in charge of the reconstruction of the premises (Project No. 1 and Project No. 2), who initiated this reconstruction and who carried out this reconstruction, may warrant action for disciplinary offences. However, the former chief executives of the SSD, Mečys Laurinkus, Arvydas Pocius and Dainius Dabašinskas, are no longer employed by the SSD and [thus] no disciplinary sanctions may be applied to them. In addition, in accordance with the Statute of the SSD ..., no disciplinary sanction may be applied where more than one year has elapsed from the date of the offence. Therefore, even in cases where there is information which may indicate that a disciplinary offence has been committed, no decision can be made; this is stipulated by the Code of Criminal Procedure, Article 214 § 6. The matter must be transferred to other authorities for examination of a disciplinary offence after the pre-trial investigation is complete. ... Taking into account the fact that the material of the pre-trial investigation includes both a State secret and an official secret, all the material of the investigation, after the pre-trial investigation is complete, shall be passed on to the Office of the Prosecutor General of the Republic of Lithuania, the Department of Information Security and the Inspectorate of Operational Activities.” 201. Following the prosecutor ’ s decision to discontinue the investigation, Reprieve twice wrote to the prosecutor seeking information on Abu Zubaydah ’ s behalf. On 22 June 2011 Reprieve requested a copy of the decision to discontinue the investigation, and also asked for information on the rights available to Abu Zubaydah as a victim of the crimes covered by the investigation. On 27 June 2011 Reprieve requested the Prosecutor General to provide the following: “(1) indicate with reference to provisions of the Criminal Code of the Republic of Lithuania which crimes were investigated within pre-trial investigation No. 01 ‑ 2 ‑ 00016-10; (2) indicate chronologically all the procedural actions taken during the pre-trial investigation; (3) state the findings of the investigation with respect to each crime; and (4) state on what basis the investigation was closed in respect of each of the crimes.” The Prosecutor General ’ s Office did not respond to either letter. 202. In the meantime, in May 2011, Amnesty International had also written to the Prosecutor General, stating that in its view the investigation had failed to investigate thoroughly the allegations of torture, ill-treatment and enforced disappearance, and that information already in the public domain constituted a strong prima facie case for continuation of the investigation: the secret sites had been identified; the SSD officials had acknowledged that the sites had been established in order for suspected terrorists to be detained there; both parliamentarians and the European Committee for the Prevention of Torture (“the CPT”) in a report on its visit to Lithuania on 14-18 June 2010 (“the 2011 CPT Report”; see also paragraphs 347-351 below) had stated that the physical layout of the sites and the operational dynamic (no inspections of aircraft had been conducted and the CIA had had ultimate control over the sites) had been easily adaptable to a detention regime; at least one aircraft had carried passengers in addition to the crew. 203. In June 2011, the Prosecutor General responded to Amnesty International ’ s letter, characterising it as a “complaint about the termination of the investigation” and stating that the organisation had no right to submit such a complaint, as it was not a party to the proceedings. He further stated that, as to the substance, he did not find a basis for reopening the investigation. 204. On 6 October 2011 Reprieve again wrote to the Prosecutor General, submitting that new evidence had emerged and asking him to take action in that respect. The letter, in so far as relevant, read as follows: “Compelling new information that has now come to light about the landings of CIA connected planes in Lithuania makes a rigorous and wide-ranging investigation all the more urgent. It has become obvious that previous efforts to chart the extent of the CIA,s rendition operations in Europe have only revealed the tip of the iceberg. As you will be aware, we have recently presented some new data, connecting Morocco and Lithuania, in Amnesty International ’ s report ‘ Unlock the Truth in Lithuania: Investigate Secret Prisons Now ’ (published 29 Sept. 2011). The data concerns a Boeing 727, N724CL, which flew from Morocco to Vilnius via Amman, Jordan, arriving in Vilnius International Airport on the evening of 17 February 2005. It stayed briefly in Vilnius before departing for Iceland, and then returned through Canada to the USA. The flight coincides with that of another plane, N787WH, which landed in Palanga on 18 February 2005, coming from Bucharest. We have adduced that the timing of these flights matches the timing associated, in public source accounts, with the transfer of Zayn al-Abidin Muhammad Husayn (Abu Zubaydah) from secret detention in Morocco to secret detention in Lithuania. With this letter we enclose, for your attention, two documents relating to the arrival of N724CL in Vilnius: a disclosure from the Lithuanian Civil Aviation Authority, dated 20 June 2011, and a disclosure from Vilnius Airport, received on 19 Sept. 2011. We note that there are some discrepancies in the times recorded on the documents, but that aside from these they are in agreement. We have prepared an additional dossier of confidential material with relation to this flight, which we will forward to you on receipt of an undertaking that you will maintain its strict confidentiality. ... We also note that the route of the other plane, N787WH between 14 and 19 February 2005, although partly disclosed in the course of the Seimas inquiry of 2009, is yet to be fully accounted for. In particular, it has not been disclosed where this plane stopped before Bucharest. ... We are continuing actively to investigate these and other flights, and we believe that further new information will come to light in the near future. It is clear, however, that the full truth concerning these flights will not properly emerge until all responsible bodies in all connected countries search diligently through the material available to them.” Reprieve asked the prosecutor to take specific additional investigative actions, in particular to obtain from Eurocontrol, relevant national bodies regulating air navigation, landing, servicing and customs data relating to the route planning and route costing of N787WH between 14 and 19 February 2005 and N724CL between 14 and 19 February 2005. 205. On 21 October 2011 the Prosecutor General announced that he would not reopen the terminated criminal investigation. This decision was taken on the basis that there was no evidence that anyone had been detained on Lithuanian territory. 206. On an unspecified date in January 2015 Reprieve filed with the Prosecutor General ’ s Office the 2015 Reprieve Briefing (see also paragraph 11 8 above and paragraph 39 5 below). 2. Reopening of the investigation on 22 January 2015 and further proceedings 207. On 22 January 2015, having regard to the declassified 2014 US Senate Committee Report, the prosecutor decided to quash the decision of 14 January 2011 and to re-open the investigation No. 01-2-00016-10 under Article 228 §1 (abuse of office) of the Criminal Code. The decision, in so far as relevant read as follows: “The decision of 14 January 2011 is annulled and the pre-trial investigation No. 01 ‑ 2-00016-10 is reopened. In accordance with Article 217 § 2 of the Code of Criminal Procedure (hereinafter referred to as CCP), a pre-trial investigation might be reopened where essential circumstances, which are relevant for a fair resolution of a case and which were not known at the moment of discontinuation of a pre-trial emerge. US Senate published a redacted report on activities of CIA prisons on 9 December 2014. Though the report does not refer to particular countries where secret CIA detention centres were present, it refers to the ‘ Violet ’ centre where the citizen of Saudi Arabia Mustafa al-Hawsawi was detained. In regard to the alleged illegal transportation of this person to Lithuania on 13 February 2014 the Prosecutor General ’ s Office opened the pre-trial investigation [under Article 292 the CC], which to date is still in progress. The data contained in the published Report of US Senate of 9 December 2014 to be considered as a ground to reopen the discontinued pre-trial investigation No. 01 ‑ 2 ‑ 00016-10 within the meaning of Article 217 § 2 of the CCP. Taking into consideration the content of the information, some coincidences of this information with the data provided in the conclusions of the parliamentary inquiry carried out by the CNSD on the alleged transportation and confinement of persons detained by CIA in the territory of the Republic of Lithuania and with the subject ‑ matter of the pre-trial investigation No. 01-2-200016-10, it is necessary to re-evaluate importance of the newly emerged data by procedural means in order achieve the purpose of the criminal process as it is indicated under Article 1 § 1 of CCP.” 208. On 6 February 2015 the investigation was joined with investigation No. 01-2-000-15-14 concerning Mr Mustafa Ahmed al ‑ Hawsawi and unlawful transportation of persons across the State border, an offence defined in Article 292 of the Criminal Code. 209. In the case of Mr al-Hawsawi, on 27 January 2015, the Prosecutor General ’ s Office had asked the Cracow Prosecutor of Appeal in Poland for legal assistance in relation to the alleged unlawful transportation of Mr Mustafa Ahmed al-Hawsawi or other persons across the Lithuanian State border. 210. On 29 May 2015 the Prosecutor General ’ s Office asked the Prosecutor ’ s Office attached to the Court of Cassation in Romania for legal assistance. Subsequently, requests for legal assistance were also sent to the US authorities, Morocco and Afghanistan. The US authorities, having been addressed twice, replied that they could not provide the information requested. Morocco refused the request. 211. The proceedings are still pending. V. RELEVANT DOMESTIC LAW AND PRACTICE A. Constitution of the Republic of Lithuania 212. The relevant provisions read as follows: Article 20 “Human liberty shall be inviolable. No one may be arbitrarily apprehended or detained. No one may be deprived of his liberty otherwise than on the grounds and according to the procedures established by law. No one may be arbitrarily detained or held arrested. No one may be deprived of his freedom otherwise than on the grounds and according to the procedures which have been established by law. ... ” Article 21 “The person of the human being shall be inviolable. The dignity of the human being shall be protected by law. It shall be prohibited to torture, injure a human being, degrade his dignity, subject him to cruel treatment as well as to establish such punishments. No one may be subjected to scientific or medical experimentation without his knowledge and free consent.” Article 22 “The private life shall be inviolable. Personal correspondence, telephone conversations, telegraph messages, and other communications shall be inviolable. Information concerning the private life of a person may be collected only upon a justified court decision and only according to the law. The law and the court shall protect everyone from arbitrary or unlawful interference in his private and family life, and from encroachment upon his honour and dignity.” Article 30 “A person whose constitutional rights or freedoms are violated shall have the right to apply to court. Compensation for material and moral damage inflicted upon a person shall be established by law.” Article 118 “A pre-trial investigation shall be organised and directed, and charges on behalf of the State in criminal cases shall be upheld, by a prosecutor. In cases established by law, the prosecutor shall defend the rights and legitimate interests of the person, society and the State. When performing his functions, the prosecutor shall be independent and shall obey only the law. ... ” B. Criminal Code 213. The Criminal Code, which was adopted in 2000 and, with certain amendments, came into force on 1 May 2003, has undergone numerous modifications. Its provisions at the relevant time read as follows: Article 95 Statute of Limitations of Judgment of Conviction “... 5. The following crimes provided for in this Code shall have no statute of limitations [1] : 2) treatment of persons prohibited under international law (Article 100); ... ” Article 100 (as in force until 30 March 2011) Treatment of Persons Prohibited under International Law “A person who intentionally, by carrying out or supporting the policy of the State or an organisation, attacks civilians on a large scale or in a systematic way and commits their killing or causes serious impairment to their health; inflicts on them such conditions of life as to bring about their death; engages in trafficking in human beings; commits deportation of the population; tortures, rapes, involves another in sexual slavery, forces someone to engage in prostitution, forcibly inseminates or sterilises a person; persecutes any group or community of persons for political, racial, national, ethnic, cultural, religious, sexual or other reasons prohibited under international law; detains, arrests or otherwise deprives a person of liberty, where such a deprivation of liberty is not recognised, or fails to report the fate or whereabouts of a person; or carries out the policy of apartheid; shall be punished by imprisonment for a term of five to twenty years or by life imprisonment.” Article 146 Unlawful Deprivation of Liberty “1. A person who unlawfully deprives a person of his liberty, in the absence of characteristics of hostage taking, shall be punished by a fine or by arrest or by imprisonment for a term of up to three years. 2. A person who commits the act provided for in paragraph 1 of this Article by using violence or posing a threat to the victim ’ s life or health or by holding the victim in captivity for a period exceeding 48 hours shall be punished by arrest or by imprisonment for a term of up to four years. 3. A person who unlawfully deprives a person of his liberty by committing him to a psychiatric hospital for reasons other than an illness shall be punished by arrest or by imprisonment for a term of up to five years.” Article 228 (as in force until 20 July 2007) Abuse of Office “l. A civil servant or a person equivalent thereto who abuses his official position or exceeds his powers, where this incurs major damage to the State, an international public organisation, a legal or natural person, shall be punished by deprivation of the right to be employed in a certain position or to engage in a certain type of activities or by a fine or by arrest or by imprisonment for a term of up to four years. 2. A person who commits the act provided for in paragraph 1 of this Article seeking material or another personal gain, in the absence of characteristics of bribery, shall be punished by deprivation of the right to be employed in a certain position or to engage in a certain type of activities or by imprisonment for a term of up to six years.” Article 291 Illegal Crossing of the State Border “1. A person who illegally crosses the State border of the Republic of Lithuania shall be punished by a fine or by arrest or by imprisonment for a term of up to two years. 2. An alien who unlawfully enters the Republic of Lithuania seeking to exercise the right of asylum shall be released from criminal liability under paragraph 1 of this Article. 3. An alien who commits the act provided for in paragraph 1 of this Article with the intent of illegally crossing into a third State from the Republic of Lithuania shall be released from criminal liability according to paragraph 1 of this Article where he is, in accordance with the established procedure, subject to deportation back to the State from the territory whereof he illegally crosses the State border of the Republic of Lithuania or to the State of which he is a citizen.” Article 292 Unlawful Transportation of Persons across the State Border “1. A person who unlawfully transports across the State border of the Republic of Lithuania an alien not having a permanent place of residence in the Republic of Lithuania or transports or conceals in the territory of the Republic of Lithuania such an alien who has illegally crossed the State border of the Republic of Lithuania shall be punished by a fine or by arrest or by imprisonment for a term of up to six years. 2. A person who commits the acts provided for in paragraph 1 of this Article for mercenary reasons or where this poses a threat to human life, shall be punished by imprisonment for a term of up to eight years. 3. A person who organises the acts provided for in paragraph 1 of this Article shall be punished by imprisonment for a term of four up to ten years. 4. A legal entity shall also be held liable for the acts provided for in this Article.” C. Code of Criminal Procedure 214. The Code of Criminal Procedure, which was adopted in 2002 and came into force on 1 May 2003, underwent numerous modifications. Its provisions at the relevant time read as follows: Article 1 The Purpose of the Criminal Procedure “The purpose of the criminal procedure is to quickly and comprehensively detect criminal acts and to apply the law correctly when protecting human rights and rights of citizens, so that the person who committed the criminal act is justly punished and an innocent person is not convicted.” Article 2 Duty to Detect Criminal Acts “In every case where elements of a criminal offence are discovered, the prosecutor or the institutions of pre-trial investigation must, within the limits of their competence, take all measures provided by law to investigate and uncover the crime within the shortest time possible.” Article 3 Circumstances when the criminal proceedings are not possible (as in force until 5 December 2017 ) “1. Criminal proceedings may not be instituted, and, if instituted, must be terminated in the following cases: 1) where no act containing elements of a serious or grave crime was committed; 2) where the period of limitation for criminal liability has expired; ... ” Article 28 (as effective until 1 March 2016) Victim “1. The person who, as a result of a crime, sustained physical, pecuniary or non-pecuniary damage, shall be recognised as the victim. The person shall be recognised as the victim by an order of a prosecutor or a pre-trial investigation officer or by a court decision. 2. The victim and his representative shall be entitled: to adduce evidence, make motions, make challenges, examine the case file in the course of the pre-trial investigation and at court, take part in the court hearing, appeal against the actions of a pre-trial investigation officer, a prosecutor, a pre-trial investigation judge and the court, to appeal against the court ’ s judgment or decision, and to present the closing statements. 3. The victim must testify. He shall take an oath and be held responsible for committing perjury in the same manner as a witness.” Article 47 Defence counsel “1. Defence counsel must be an advocate. The same advocate may not act as a counsel for the defence for two or more persons where the interests of the defence of one such person are against the interests of defence of another person. 2. A trainee advocate may act as a counsel for the defence upon instructions of the advocate, provided there is no objection from the defended person. A trainee advocate may not take part in the trial involving a serious or grave criminal offence. 3. One person may have several counsels for the defence. Where the suspect or the accused has several counsels for the defence and where at least one of them is present, proceedings may continue.” Article 55 [2] Authorised representatives “1. The representative of a victim ... shall be a person who provides legal assistance to th[is] part[y] to the proceedings, protects [his] rights and lawful interests. 2. The representative of a victim ... shall be an advocate or a trainee advocate under the advocate ’ s instruction, and, subject to leave granted by the pre-trial investigation officer, the prosecutor or the judge, or any other person with a university degree in law, whom a party to the proceedings has instructed to represent his interests. ... 3. The representative of the victim ... shall be permitted to participate in the proceedings from the moment the pre-trial investigation officer or the prosecutor takes such a decision, or a court adopts such a ruling. The representative may participate in the proceedings together with the person he represents or on his behalf, except when representing a victim. The represented person may, at any moment, waive the right to have a representative or choose another representative. 4. In cases set out in laws governing the provisions of the State-guaranteed legal aid, the victim ... is entitled to receive the State-guaranteed legal assistance.” Article 62 Complaint against the procedural actions and decisions of the pre-trial investigation officer “1. Parties to the proceedings may lodge complaints against the procedural actions and decisions of the pre-trial investigation officer with the prosecutor supervising the activities of that officer. In the event that the complaint is dismissed by the prosecutor, his decision may be complained of to a higher prosecutor, pursuant to the rules set out in Article 63 of this Code. 2. The complaint shall be lodged directly with the prosecutor or through the pre-trial investigation officer against whose procedural actions or decisions a complaint is being lodged. Complaints may be made both orally and in writing. The pre-trial investigation officer or the prosecutor shall enter oral complaints in a record which shall be signed by the complainant and the pre-trial investigation officer or the prosecutor who receives the complaint. 3. The pre-trial investigation officer must, within one day, transmit the complaint together with his written explanations to the prosecutor. 4. Lodging of a complaint pending its resolution shall not suspend the performance of the action or implementation of the decision against which a complaint is being lodged, save in the cases where the pre-trial investigation officer or the prosecutor recognises that such a suspension is necessary.” Article 63 (as effective until 2011) Complaint against the procedural actions and decisions of the prosecutor “1. The actions and decisions of the prosecutor in charge of the pre-trial investigation may be appealed against to a higher prosecutor. If a higher prosecutor dismisses the appeal, this decision may be appealed against to the pre-trial investigation judge. 2. The complaint shall be lodged directly with a higher prosecutor or through the prosecutor against whose procedural steps or decisions the complaint is lodged. The complaints may be made both orally and in writing. The prosecutor shall enter oral complaints in the protocol which shall be signed by the complainant and the prosecutor who receives the complaint. 3. The making of a complaint pending its resolution shall not suspend the performance of the act or implementation of the decision against which a complaint is being lodged, save in the cases where the prosecutor determines that such suspension is necessary.” Article 109 Civil claim in a criminal case “A person who has sustained pecuniary or non-pecuniary damage due to a criminal offence shall be entitled to bring a civil claim in a criminal case against the suspect or the accused, or the persons who bear financial responsibility for the actions of the suspect or the accused. The civil claim shall be heard by the court together with the criminal case. When a civil claim has been brought at the stage of the pre-trial investigation, data regarding the basis and amount of civil claim must be gathered during the pre-trial investigation [3] .” Article 110 Civil claimant “1. A natural or a legal person who requests, in a criminal case, compensation for the pecuniary or non-pecuniary damage caused by the criminal offence committed by the suspect or the accused shall be recognised as a civil claimant. The person shall be recognised as a civil claimant by a decision of the pre-trial investigation officer, the prosecutor or the court. 2. The civil claimant shall be entitled: 1) to submit explanations on the substance of a civil claim; 2) to provide evidence; 3) to make motions and challenges; 4) to examine, in the course of the pre-trial investigation and at court, the material in the case file, to have extracts or copies of the documents he needs made following the established procedure; 5) to be present during the hearing at the court of the first instance; 6) to lodge complaints against the actions and to appeal against the decisions of the pre-trial investigation officer, the prosecutor, the judge or the court to the extent they are related to the civil action; 7) to be present when hearing of the case on appeal. 3. The civil claimant must: 1) when summoned, be present during the hearing of the case by the first instance court; 2) submit, at the court ’ s request, documents in his possession which are relevant for the claim brought; 3) observe the rules of procedure established by court.” Article 166 Institution of pre-trial investigation “1. Pre-trial investigation shall be instituted: 1) upon receipt of a complaint, application or report about a criminal act; 2) where the prosecutor or the pre-trial investigation officer himself has established elements of a criminal act. 2. In cases established by this Code, pre-trial investigation shall be instituted only in case where there is a victim ’ s complaint. ... ” Article 212 (effective as of 1 September 2011) Discontinuing a pre-trial investigation “A pre-trial investigation must be discontinued if: 1) it becomes evident that the circumstances provided for in Articl[e] 3 ... of this Code exist; ... ” Article 214 (as in force until 1 March 2016) The procedure for discontinuing a pre-trial investigation “1. In cases established in Article 212 points 1 and 2 of this Code, a pre-trial investigation is discontinued by a decision of a prosecutor or a ruling of a pre-trial investigation judge. ... 3. The suspect, his or her representative, his or her lawyer, the victim, civil claimant and their representatives are informed about the decision to discontinue the pre-trial investigation or about the decision of the pre-trial investigation judge not to approve the prosecutor ’ s decision to discontinue the pre-trial investigation, by sending them a copy of the act. 4. The decision specified in paragraph 1 of this Article may be appealed against to a higher prosecutor ... If a higher prosecutor refuses to grant the appeal, such a decision may be appealed against to a pre-trial investigation judge. Such a decision of a pre-trial investigation judge ... ... 6. If the pre-trial investigation file contains information about an administrative law violation or about another breach of the law, a prosecutor takes the decision to transfer the material to be decided upon in administrative proceedings or according to another procedure specified by law.” Article 216 (as in force as of 11 December 2010) The content of the decision to discontinue the pre-trial investigation “1. The decision to discontinue the pre-trial investigation contains the description of the crime, and the grounds and reasons for discontinuing the investigation. ...” Article 217 (as in force as of 5 July 2011) Reopening a pre-trial investigation which has been discontinued “1. The prosecutor may re-open the pre-trial investigation upon complaints lodged by the parties to the proceedings or on his own initiative, where there are grounds for doing so. The pre-trial investigation shall be reopened by a decision of the prosecutor, having quashed the decision to discontinue criminal proceedings. 2. A pre-trial investigation can be reopened upon the discovery of essential circumstances which are relevant for the proper examination of the case and which had not been established at the time of adopting the decision to discontinue the investigation. ... 7. The suspect, his or her representative, his or her lawyer, the victim, civil claimant and civil defendant, and their representatives are informed about the decision to re ‑ open the pre-trial investigation. These persons have a right to appeal against the decision regarding the re-opening. The decision not to re-open criminal proceedings is notified to the party to the criminal proceedings which had submitted a complaint; that party may appeal against such a decision ... ” D. Civil Code 215. The relevant provisions of the Civil Code read as follows: Article 6.246 Unlawful actions “1. Civil liability shall arise from the non-performance of a duty established by law or a contract (unlawful failure to act), or from the performance of actions that are prohibited by law or by contract (unlawful action), or from the violation of the general duty to behave with care.” Article 6.263 Obligation to compensate for damage caused “1. Every person shall have the duty to abide by the rules of conduct so as not to cause damage to another by his actions (active actions or refrainment from acting). 2. Pecuniary loss resulting from any bodily or property damage caused to another person and also, in cases established by the law, non-pecuniary damage must be fully compensated by the person liable. 3. In cases established by law, a person shall also be liable to compensation for damage caused by the actions of another person or caused by things in his possession.” Article 6.271 Liability to compensation for damage caused by the unlawful action of public authority institutions “1. Damage caused by the unlawful action of a public authority institution must be compensated by the State from the resources of the State budget, irrespective of any fault on the part of a particular public servant or other employee of the public authority institution. Damage caused by unlawful actions of municipal authority institutions must be redressed by the municipality from its own budget, irrespective of its employee ’ s fault. 2. For the purposes of this Article, the notion ‘ public authority institution ’ shall mean any subject of public law (State or municipal institution, official, public servant or any other employee of these institutions, etc.), as well as a private person performing the functions of a public authority. 3. For the purposes of this Article, the notion ‘ action ’ shall mean any action (or inaction) by a public authority institution or its employees that directly affects the rights, liberties and interests of persons (legal acts or individual acts adopted by the institutions of State and municipal authorities, administrative acts, physical acts, etc., with the exception of court judgments, verdicts in criminal cases, decisions in civil and administrative cases and orders). 4. Civil liability of the State or municipality subject to this Article shall arise where employees of public authority institutions fail to act in the manner prescribed by law for these institutions and their employees.” Article 6.272 Liability for damage caused by the unlawful actions of preliminary investigation officials, prosecutors, judges and the courts “1. Damage resulting either from unlawful conviction, unlawful arrest, as a suppressive measure, application of unlawful procedural measures in enforcement proceedings, or unlawful imposition of an administrative penalty (arrest) shall give rise to full compensation by the State irrespective of the fault of the preliminary investigation officials, prosecution officials or courts. 2. The State shall be liable for full compensation in respect of the damage caused by the unlawful actions of a judge or a court trying a civil case, where the damage is caused through the fault of the judge himself or of any other court official. 3. In addition to pecuniary damage, the aggrieved person shall be entitled to non-pecuniary damage. 4. Where the damage arises from an intentional fault on the part of preliminary investigation, prosecution or court officials or judges, the State, after compensation has been provided, shall have the right to take action against the officials concerned for recovery, under the procedure established by law, of the sums in question in the amount provided for by the law.” E. The Law on Intelligence 216. The Law on Intelligence, as effective between 2002 and 2012, read as follows: Article 9 Intelligence tasks “1. Intelligence tasks shall be set for subordinate intelligence institutions by the Minister of National Defence and the Director of the State Security Department whilst taking into account the main areas of the intelligence services ’ activities, the recommendations of the State Defence Council and the needs of international cooperation. 2. Ministries and Governmental or other State institutions shall provide the assistance necessary to pursue intelligence tasks.” Article 16 Additional guarantees for intelligence officers “1. State institutions, officials and civil servants shall be prohibited from obstructing or otherwise influencing the intelligence activities pursued by intelligence officers. ... 3. The State shall show concern for any intelligence officer or family members thereof who become victims for reasons related to service in an intelligence institution and shall provide assistance thereto. 4. The State shall compensate for the damage incurred to the intelligence officer or his family member for reasons related to service at the intelligence institution.” F. The Statute of the Seimas 217. The relevant provisions regarding the powers of the Seimas committees read as follows. Article 49 (as effective until 2013) Powers of the Seimas Committees “1. The Seimas committees shall have the following powers, within the scope of their competence: ... 9) when performing the parliamentary control, to hear information and reports from the Ministries and other State institutions concerning the execution of laws of the Republic of Lithuania and other legal acts adopted by the Seimas; to perform, on their own initiative or at the behest of the Seimas, parliamentary investigation into specific problems and to provide the Seimas with their conclusions; to consider, on their own initiative or at the behest of the Seimas, annual activity reports of State institutions that are accountable to the Seimas and to provide the Seimas with their conclusions; ... ” Article 56 (as effective until 2013) Powers of the Seimas Committees when Performing Parliamentary Control “1. Committees are entitled, within their competence, to verify compliance with laws, Seimas resolutions, or committee recommendations and proposals; to perform, on their own initiative or at the behest of the Seimas, parliamentary investigations into specific problems; to consider, on their own initiative or at the behest of the Seimas, annual reports of State institutions that are accountable to the Seimas; ... 3. The committees shall have the right to demand from the State institutions, except courts, and from officials, any documents, written conclusions, reports and other necessary material. 4. Committees, when performing parliamentary investigation at the behest of the Seimas, shall act in compliance with the rules of procedure of Seimas control commission or ad hoc investigation commissions, as set forth in Articles 75-76 of this Statute, and shall have the same powers.” Article 75 The Powers and Working Procedure of an Ad Hoc Control or Investigation Commission “1. If an issue is being examined which is relevant to a State secret, the meetings of an Ad Hoc Control or Investigation Commission shall be closed to all persons except those who have been invited thereto, of which a list shall be compiled in accordance with the commission members ’ wishes. In other instances the Ad Hoc Control or Investigation Commission may hold closed meetings only upon receiving leave from the Seimas. 2. The data collected in the course of the work of an Ad Hoc Control or Investigation Commission, that is relevant to a State secret, shall not be published. 3. The law shall establish the powers of Ad Hoc Control and Investigation Commissions.” Article 76 Decisions of the Ad Hoc Control or Investigation Commission “1. Having completed the assigned operation, the Ad Hoc Control or Investigation Commission shall submit to the Seimas the collected and summarised data, conclusions and prepared draft decision. 2. A resolution shall be passed at the Seimas sitting regarding the issue examined by the Ad Hoc Control or Investigation Commission. 3. A Seimas resolution may express no confidence in the Government, Minister or head of another State institution, who is appointed by the Seimas, or conclusions may be presented regarding the proposed impeachment process. 4. In instances of no confidence, the requirements of Articles 218 or 222 of this Statute shall be applied in order to pass a resolution.” G. The Law on the Seimas Ad Hoc Investigation Commissions 218. Article 8 of the Law on the Seimas Ad Hoc Investigation Commissions (“the Law on the Ad Hoc Investigation Commissions”) regarding decisions of the Commission read, in so far as relevant, as follows: “1. The results of the Commission ’ s investigation shall be presented in a draft conclusion. It shall indicate the circumstances established in the course of the investigation, evidence gathered and provide the legal assessment of the situation. ...” H. The Constitutional Court ’ s case-law 219. The Constitutional Court ’ s ruling of 13 May 2004, concerning the powers of the Seimas ad hoc investigation commissions and the nature of parliamentary inquiries carried out by them, reads, in so far as relevant, as follows: “6. ... [u]nder paragraph 1 of Article 8 (wording of 3 April 2003) of the Law [on the Seimas Ad Hoc Investigation Commissions], the draft conclusion of the Seimas ad hoc investigation commission shall contain, inter alia, a legal assessment of the situation. One must pay attention to the fact that the Seimas ad hoc investigation commission is neither an institution of pre-trial investigation, nor the prosecutor ’ s office, nor the court. The formula ‘ legal assessment ’ is a general notion; it does not mean that the Seimas ad hoc investigation commission must or may present the legal characterisation of the actions that it has investigated, of the decisions adopted by it on the issues that it was assigned to investigate, or of other circumstances that were elucidated by it, which are related to the investigated issue; that is to say, this formula does not mean that the Seimas ad hoc investigation commission has to, or may, indicate the compliance or non-compliance of the said actions, decisions or circumstances with legal acts, but it means that the said actions and decisions must be investigated, other circumstances related to the investigated question must be elucidated and that the results of the Seimas ad hoc investigation commission ’ s inquiry must be drawn up so that on their basis it might be possible to adopt legal decisions – either to adopt respective legal acts or not to adopt them. ... 7. It needs to be emphasised that the conclusion (or some statements) of the Seimas ad hoc investigation commission in itself directly does not give rise to any legal effects for the persons indicated therein. Such effects could be caused to them only by the decisions of other institutions or their officers, which may be adopted, while taking into consideration the conclusion of the Seimas ad hoc investigation commission. ... 9. ... It is clear that the Seimas is neither an institution of pre-trial investigation, nor the prosecutor ’ s office, nor the court. Therefore, it needs to be underlined that the formulation of the opinion or point of view of the Seimas regarding the conclusion of the Seimas ad hoc investigation commission formed by it in a resolution of the Seimas may not be construed, under the Constitution, as a legal characterisation of the actions that the Seimas ad hoc investigation commission has investigated, of the decisions adopted by it on the issues that it was assigned to investigate, and of other circumstances that were elucidated by it. The Seimas, after it has decided either to approve or not to approve the conclusion of the Seimas ad hoc investigation commission, or to approve it in part (with reservations), does not adopt a decision on the compliance of the said actions, decisions, and circumstances with legal acts, as is mandatory for other State institutions (including institutions of the pre-trial investigation, the prosecutor ’ s office or courts), but it merely formulates its point of view as to the conclusion of the Seimas ad hoc investigation commission that was formed by it. The Seimas resolution in which the opinion and point of view of the Seimas are formulated as to the conclusion of the Seimas ad hoc investigation commission that was formed by it is not binding on institutions of pre-trial investigation, the prosecutor ’ s office or the court.” VI. RELEVANT INTERNATIONAL LAW A. Vienna Convention on the Law of Treaties 220. Articles 26 and 27 of the Vienna Convention on the Law of Treaties (23 May 1969), to which Lithuania is a party, provide as follows: Article 26 “ Pacta sunt servanda ” “Every treaty in force is binding upon the parties to it and must be performed by them in good faith.” Article 27 Internal law and observance of treaties “A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. ...” B. International Covenant on Civil and Political Rights 221. Article 7 of the International Covenant on Civil and Political Rights (“ICCPR”), to which Lithuania is a party, reads as follows: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.” 222. Article 10 § 1 of the ICCPR reads as follows: “1. All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.” C. The United Nations Torture Convention 223. One hundred and forty-nine States are parties to the 1984 United Nations (“the UN”) Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“UNCAT”), including all Member States of the Council of Europe. Article 1 of the Convention defines torture as: “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.” 224. Article 1(2) provides that it is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application. Article 2 requires States to take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction. Article 4 requires each State Party to ensure that all acts of torture are offences under its criminal law. Article 3 provides: “1. No State Party shall expel, return ( ‘ refouler ’ ) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture. 2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.” 225. Article 12 provides that each State Party shall ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction. Article 15 requires that each State ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made. D. UN Geneva Conventions 1. Geneva (III) Convention 226. Article 4 of the Geneva (III) Convention relative to the Treatment of Prisoners of War of 12 August 1949 (“the Third Geneva Convention”), which defines prisoners of war, reads, in so far as relevant, as follows: “Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy: (1) Members of the armed forces of a Party to the conflict, as well as members of militias or volunteer corps forming part of such armed forces. (2) Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions: (a) that of being commanded by a person responsible for his subordinates; (b) that of having a fixed distinctive sign recognizable at a distance; (c) that of carrying arms openly; (d) that of conducting their operations in accordance with the laws and customs of war. (3) Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power. ...” 227. Article 5 states: “The present Convention shall apply to the persons referred to in Article 4 from the time they fall into the power of the enemy and until their final release and repatriation. Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.” 228. Article 13 reads: “Art 13. Prisoners of war must at all times be humanely treated. Any unlawful act or omission by the Detaining Power causing death or seriously endangering the health of a prisoner of war in its custody is prohibited, and will be regarded as a serious breach of the present Convention. In particular, no prisoner of war may be subjected to physical mutilation or to medical or scientific experiments of any kind which are not justified by the medical, dental or hospital treatment of the prisoner concerned and carried out in his interest. Likewise, prisoners of war must at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity. Measures of reprisal against prisoners of war are prohibited.” 229. Article 21 reads, in so far as relevant: “The Detaining Power may subject prisoners of war to internment. It may impose on them the obligation of not leaving, beyond certain limits, the camp where they are interned, or if the said camp is fenced in, of not going outside its perimeter. Subject to the provisions of the present Convention relative to penal and disciplinary sanctions, prisoners of war may not be held in close confinement except where necessary to safeguard their health and then only during the continuation of the circumstances which make such confinement necessary.” 2. Geneva (IV) Convention 230. Article 3 of the Geneva (IV) relative to the Protection of Civilian Persons in Time of War of 12 August 1949 (“the Fourth Geneva Convention”) reads, in so far as relevant, as follows: “In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions: (1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons: (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) taking of hostages; (c) outrages upon personal dignity, in particular humiliating and degrading treatment; (d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.” 231. Article 4 reads, in so far as relevant, as follows: “Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals. Nationals of a State which is not bound by the Convention are not protected by it. Nationals of a neutral State who find themselves in the territory of a belligerent State, and nationals of a co-belligerent State, shall not be regarded as protected persons while the State of which they are nationals has normal diplomatic representation in the State in whose hands they are. ...” E. International Law Commission, 2001 Articles on Responsibility of States for Internationally Wrongful Acts 232. The relevant parts of the Articles (“the ILC Articles”), adopted on 3 August 2001 ( Yearbook of the International Law Commission, 2001, vol. II), read as follows: Article lResponsibility of a State for its internationally wrongful acts “Every internationally wrongful act of a State entails the international responsibility of that State.” Article 2 Elements of an internationally wrongful act of a State “There is an internationally wrongful act of a State when conduct consisting of an action or omission: a. Is attributable to the State under international law; and b. Constitutes a breach of an international obligation of the State.” Article 7 Excess of authority or contravention of instructions “The conduct of an organ of a State or of a person or entity empowered to exercise elements of the governmental authority shall be considered an act of the State under international law if the organ, person or entity acts in that capacity, even if it exceeds its authority or contravenes instructions. ...” Article 14 Extension in time of the breach of an international obligation “1. The breach of an international obligation by an act of a State not having a continuing character occurs at the moment when the act is performed, even if its effects continue. 2. The breach of an international obligation by an act of a State having a continuing character extends over the entire period during which the act continues and remains not in conformity with the international obligation. 3. The breach of an international obligation requiring a State to prevent a given event occurs when the event occurs and extends over the entire period during which the event continues and remains not in conformity with that obligation.” Article 15 Breach consisting of a composite act “1. The breach of an international obligation by a State through a series of actions or omissions defined in aggregate as wrongful occurs when the action or omission occurs which, taken with the other actions or omissions, is sufficient to constitute the wrongful act. 2. In such a case, the breach extends over the entire period starting with the first of the actions or omissions of the series and lasts for as long as these actions or omissions are repeated and remain not in conformity with the international obligation.” Article 16 Aid or assistance in the commission of an internationally wrongful act “A State which aids or assists another State in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if: ( a ) that State does so with knowledge of the circumstances of the internationally wrongful act; and ( b ) the act would be internationally wrongful if committed by that State.” F. UN General Assembly Resolution 60/147 233. The UN General Assembly ’ s Resolution 60/147 on Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, adopted on 16 December 2005, reads, in so far as relevant, as follows: “24. ... victims and their representatives should be entitled to seek and obtain information on the causes leading to their victimization and on the causes and conditions pertaining to the gross violations of international human rights law and serious violations of international humanitarian law and to learn the truth in regard to these violations”. VII. SELECTED PUBLIC SOURCES CONCERNING GENERAL KNOWLEDGE OF THE HVD PROGRAMME AND HIGHLIGHTING CONCERNS AS TO HUMAN RIGHTS VIOLATIONS ALLEGEDLY OCCURRING IN US-RUN DETENTION FACILITIES IN THE AFTERMATH OF 11 SEPTEMBER 2001 234. The applicant submitted a considerable number of reports and opinions of international governmental and non-governmental organisations, as well as articles and reports published in media, which raised concerns about alleged rendition, secret detentions and ill-treatment of Al-Qaeda and Taliban detainees in US-run detention facilities in Guantánamo and Afghanistan. A summary of most relevant sources is given below. A. United Nations Organisation 1. Statement of the UN High Commissioner for Human Rights on detention of Taliban and Al-Qaeda prisoners at the US Base in Guantánamo Bay, Cuba, 16 January 2002 235. The UN High Commissioner for Human Rights stated as follows: “All persons detained in this context are entitled to the protection of international human rights law and humanitarian law, in particular the relevant provisions of the International Covenant on Civil and Political Rights (ICCPR) and the Geneva Conventions of 1949. The legal status of the detainees and their entitlement to prisoner-of-war (POW) status, if disputed, must be determined by a competent tribunal, in accordance with the provisions of Article 5 of the Third Geneva Convention. All detainees must at all times be treated humanely, consistent with the provisions of the ICCPR and the Third Geneva Convention.” 2. Statement of the International Rehabilitation Council for Torture 236. In February 2003 the UN Commission on Human Rights received reports from non-governmental organisations concerning ill-treatment of US detainees. The International Rehabilitation Council for Torture (“the IRCT”) submitted a statement in which it expressed its concern over the United States ’ reported use of “stress and duress” methods of interrogation, as well as the contraventions of refoulement provisions in Article 3 of the Convention Against Torture. The IRCT report criticised the failure of governments to speak out clearly to condemn torture; and emphasised the importance of redress for victims. The Commission on Human Rights communicated this document to the United Nations General Assembly on 8 August 2003. 3. UN Working Group on Arbitrary Detention, Opinion No. 29/2006, Mr Ibn al-Shaykh al-Libi and 25 other persons v. United States of America, UN Doc. A/HRC/4/40/Add.1 at 103 (2006) 237. The UN Working Group found that the detention of the persons concerned, held in facilities run by the United States secret services or transferred, often by secretly run flights, to detention centres in countries with which the United States authorities cooperated in their fight against international terrorism, fell outside all national and international legal regimes pertaining to the safeguards against arbitrary detention. In addition, it found that the secrecy surrounding the detention and inter-State transfer of suspected terrorists could expose the persons affected to torture, forced disappearance and extrajudicial killing. B. Parliamentary Assembly of the Council of Europe Resolution no. 1340 (2003) on rights of persons held in the custody of the United States in Afghanistan or Guantánamo Bay, 26 June 2003 238. The above resolution (“the 2003 PACE Resolution”) read, in so far as relevant, as follows: “1. The Parliamentary Assembly: 1.1. notes that some time after the cessation of international armed conflict in Afghanistan, more than 600 combatants and non-combatants, including citizens from member states of the Council of Europe, may still be held in United States ’ military custody – some in the Afghan conflict area, others having been transported to the American facility in Guantánamo Bay (Cuba) and elsewhere, and that more individuals have been arrested in other jurisdictions and taken to these facilities; ... 2. The Assembly is deeply concerned at the conditions of detention of these persons, which it considers unacceptable as such, and it also believes that as their status is undefined, their detention is consequently unlawful. 3. The United States refuses to treat captured persons as prisoners of war; instead it designates them as “unlawful combatants” – a definition that is not contemplated by international law. 4. The United States also refuses to authorise the status of individual prisoners to be determined by a competent tribunal as provided for in Geneva Convention (III) relative to the Treatment of Prisoners of War, which renders their continued detention arbitrary. 5. The United States has failed to exercise its responsibility with regard to international law to inform those prisoners of their right to contact their own consular representatives or to allow detainees the right to legal counsel. 6. Whatever protection may be offered by domestic law, the Assembly reminds the Government of the United States that it is responsible under international law for the well-being of prisoners in its custody. 7. The Assembly restates its constant opposition to the death penalty, a threat faced by those prisoners in or outside the United States. 8. The Assembly expresses its disapproval that those held in detention may be subject to trial by a military commission, thus receiving a different standard of justice than United States nationals, which amounts to a serious violation of the right to receive a fair trial and to an act of discrimination contrary to the United Nations International Covenant on Civil and Political Rights. 9. In view of the above, the Assembly strongly urges the United States to: 9.1. bring conditions of detention into conformity with internationally recognised legal standards, for instance by giving access to the International Committee of the Red Cross (ICRC) and by following its recommendations; 9.2. recognise that under Article 4 of the Third Geneva Convention members of the armed forces of a party to an international conflict, as well as members of militias or volunteer corps forming part of such armed forces, are entitled to be granted prisoner of war status; 9.3. allow the status of individual detainees to be determined on a case-by-case basis, by a competent tribunal operating through due legal procedures, as envisaged under Article 5 of the Third Geneva Convention, and to release non-combatants who are not charged with crimes immediately. 10. The Assembly urges the United States to permit representatives of states which have nationals detained in Afghanistan and in Guantánamo Bay, accompanied by independent observers, to have access to sites of detention and unimpeded communication with detainees. ... 13. The Assembly further regrets that the United States is maintaining its contradictory position, claiming on the one hand that Guantánamo Bay is fully within US jurisdiction, but on the other, that it is outside the protection of the American Constitution. In the event of the United States ’ failure to take remedial actions before the next part-session, or to ameliorate conditions of detention, the Assembly reserves the right to issue appropriate recommendations.” C. International non-governmental organisations 1. Amnesty International, Memorandum to the US Government on the rights of people in US custody in Afghanistan and Guantánamo Bay, April 2002 239. In this memorandum, Amnesty International expressed its concerns that the US Government had transferred and held people in conditions that might amount to cruel, inhuman or degrading treatment and that violated other minimum standards relating to detention, and had refused to grant people in its custody access to legal counsel and to the courts in order to challenge the lawfulness of their detention. 2. Human Rights Watch, “United States, Presumption of Guilt: Human Rights Abuses of Post-September 11 Detainees”, Vol. 14, No. 4 (G), August 2002 240. This report included the following passage: “... the fight against terrorism launched by the United States after September 11 did not include a vigorous affirmation of those freedoms. Instead, the country has witnessed a persistent, deliberate, and unwarranted erosion of basic rights ... Most of those directly affected have been non-U.S. citizens ... the Department of Justice has subjected them to arbitrary detention, violated due process in legal proceedings against them, and run roughshod over the presumption of innocence.” 3. Human Rights Watch, “United States: Reports of Torture of Al ‑ Qaeda Suspects”, 26 December 2002 241. This report referred to the Washington Post ’ s article: “U.S. Decries Abuse but Defends Interrogations” which described “how persons held in the CIA interrogation centre at Bagram air base in Afghanistan were being subject to ‘ stress and duress ’ techniques, including ‘ standing or kneeling for hours ’ and being ‘ held in awkward, painful positions ’. It further stated: “The Convention against Torture, which the United States has ratified, specifically prohibits torture and mistreatment, as well as sending detainees to countries where such practices are likely to occur.” 4. International Helsinki Federation for Human Rights, “Anti ‑ terrorism Measures, Security and Human Rights: Developments in Europe, Central Asia and North America in the Aftermath of September 11”, Report, April 2003 242. The relevant passage of this report read as follows: “Many ‘ special interest ’ detainees have been held in solitary confinement or housed with convicted prisoners, with restrictions on communications with family, friends and lawyers, and have had inadequate access to facilities for exercise and for religious observance, including facilities to comply with dietary requirements. Some told human rights groups they were denied medical treatment and beaten by guards and inmates.” 5. Amnesty International Report 2003 – United States of America, 28 May 2003 243. This report discussed the transfer of detainees to Guantánamo, Cuba in 2002, the conditions of their transfer (“prisoners were handcuffed, shackled, made to wear mittens, surgical masks and ear muffs, and were effectively blindfolded by the use of taped-over ski goggles”) and the conditions of detention (“they were held without charge or trial or access to courts, lawyers or relatives”). It further stated: “A number of suspected members of al-Qaeda reported to have been taken into US custody continued to be held in undisclosed locations. The US government failed to provide clarification on the whereabouts and legal status of those detained, or to provide them with their rights under international law, including the right to inform their families of their place of detention and the right of access to outside representatives. An unknown number of detainees originally in US custody were allegedly transferred to third countries, a situation which raised concern that the suspects might face torture during interrogation.” 6. Amnesty International, “Unlawful detention of six men from Bosnia-Herzegovina in Guantánamo Bay”, 29 May 2003 244. Amnesty International reported on the transfer of six Algerian men, by Bosnian Federation police, from Sarajevo Prison into US custody in Camp X-Ray, located in Guantánamo Bay, Cuba. It expressed its concerns that they had been arbitrarily detained in violation of their rights under the International Covenant on Civil and Political Rights. It also referred to the decision of the Human Rights Chamber of Bosnia and Herzegovina in which the latter had found that the transfer had been in violation of Article 5 of the Convention, Article 1 of Protocol No. 7 and Article 1 of Protocol No. 6. 7. Amnesty International, “United States of America, The threat of a bad example: Undermining international standards as ‘ war on terror ’ detentions continue”, 18 August 2003 245. The relevant passage of this report read as follows: “Detainees have been held incommunicado in US bases in Afghanistan. Allegations of ill-treatment have emerged. Others have been held incommunicado in US custody in undisclosed locations elsewhere in the world, and the US has also instigated or involved itself in ‘ irregular renditions ’, US parlance for informal transfers of detainees between the USA and other countries which bypass extradition or other human rights protections.” 8. Amnesty International, “Incommunicado detention/Fear of ill ‑ treatment”, 20 August 2003 246. The relevant passage of this report read as follows: “Amnesty International is concerned that the detention of suspects in undisclosed locations without access to legal representation or to family members and the ‘ rendering ’ of suspects between countries without any formal human rights protections is in violation of the right to a fair trial, places them at risk of ill-treatment and undermines the rule of law.” 9. International Committee of the Red Cross, United States: ICRC President urges progress on detention-related issues, news release 04/03, 16 January 2004 247. The ICRC expressed its position as follows: “Beyond Guantánamo, the ICRC is increasingly concerned about the fate of an unknown number of people captured as part of the so-called global war on terror and held in undisclosed locations. Mr Kellenberger echoed previous official requests from the ICRC for information on these detainees and for eventual access to them, as an important humanitarian priority and as a logical continuation of the organization ’ s current detention work in Guantánamo and Afghanistan.” 10. Human Rights Watch - Statement on US Secret Detention Facilities of 6 November 2005 248. On 6 November 2005 Human Rights Watch issued a “Statement on US Secret Detention Facilities in Europe” (“the 2005 HRW Statement”), which indicated Romania ’ s and Poland ’ s complicity in the CIA rendition programme. It was given 2 days after the Washington Post had published Dana Priest ’ s article revealing information of secret detention facilities designated for suspected terrorists run by the CIA outside the US, including “Eastern European countries” (see also paragraph 253 below). 249. The statement read, in so far as relevant, as follows: “Human Rights Watch has conducted independent research on the existence of secret detention locations that corroborates the Washington Post ’ s allegations that there were detention facilities in Eastern Europe. Specifically, we have collected information that CIA airplanes travelling from Afghanistan in 2003 and 2004 made direct flights to remote airfields in Poland and Romania. Human Rights Watch has viewed flight records showing that a Boeing 737, registration number N313P – a plane that the CIA used to move several prisoners to and from Europe, Afghanistan, and the Middle East in 2003 and 2004 – landed in Poland and Romania on direct flights from Afghanistan on two occasions in 2003 and 2004. Human Rights Watch has independently confirmed several parts of the flight records, and supplemented the records with independent research. According to the records, the N313P plane flew from Kabul to northeastern Poland on September 22, 2003, specifically, to Szymany airport, near the Polish town of Szczytno, in Warmia-Mazuria province. Human Rights Watch has obtained information that several detainees who had been held secretly in Afghanistan in 2003 were transferred out of the country in September and October 2003. The Polish intelligence service maintains a large training facility and grounds near the Szymany airport. ... On Friday, the Associated Press quoted Szymany airport officials in Poland confirming that a Boeing passenger plane landed at the airport at around midnight on the night of September 22, 2003. The officials stated that the plane spent an hour on the ground and took aboard five passengers with U.S. passports. ... Further investigation is needed to determine the possible involvement of Poland and Romania in the extremely serious activities described in The Washington Post article. Arbitrary incommunicado detention is illegal under international law. It often acts as a foundation for torture and mistreatment of detainees. U.S. government officials, speaking anonymously to journalists in the past, have admitted that some secretly held detainees have been subjected to torture and other mistreatment, including waterboarding (immersing or smothering a detainee with water until he believes he is about to drown). Countries that allow secret detention programs to operate on their territory are complicit in the human rights abuses committed against detainees. Human Rights Watch knows the names of 23 high-level suspects being held secretly by U.S. personnel at undisclosed locations. An unknown number of other detainees may be held at the request of the U.S. government in locations in the Middle East and Asia. U.S. intelligence officials, speaking anonymously to journalists, have stated that approximately 100 persons are being held in secret detention abroad by the United States. Human Rights Watch emphasizes that there is no doubt that secret detention facilities operated by the United States exist. The Bush Administration has cited, in speeches and in public documents, arrests of several terrorist suspects now held in unknown locations. Some of the detainees cited by the administration include: Abu Zubaydah, a Palestinian arrested in Pakistan in March 2002; ... Abd al-Rahim al ‑ Nashiri (also known as Abu Bilal al-Makki), arrested in United Arab Emirates in November 2002 .... Human Rights Watch urges the United Nations and relevant European Union bodies to launch investigations to determine which countries have been or are being used by the United States for transiting and detaining incommunicado prisoners. The U.S. Congress should also convene hearings on the allegations and demand that the Bush administration account for secret detainees, explain the legal basis for their continued detention, and make arrangements to screen detainees to determine their legal status under domestic and international law. We welcome the decision by the Legal Affairs Committee of the Parliamentary Assembly of the Council of Europe to examine the existence of U.S.-run detention centers in Council of Europe member states. We also urge the European Union, including the EU Counter-Terrorism Coordinator, to further investigate allegations and publish its findings.” 11. Human Rights Watch – List of “ Ghost Prisoners ” Possibly in CIA Custody” of 30 November 2005 250. On 30 November 2005 Human Rights Watch published a “List of ‘ Ghost Prisoners ’ Possibly in CIA Custody” (“the 2005 HRW List”), which included the applicant. The document reads, in so far as relevant, as follows: “The following is a list of persons believed to be in U.S. custody as ‘ ghost detainees ’ – detainees who are not given any legal rights or access to counsel, and who are likely not reported to or seen by the International Committee of the Red Cross. The list is compiled from media reports, public statements by government officials, and from other information obtained by Human Rights Watch. Human Rights Watch does not consider this list to be complete: there are likely other “ghost detainees” held by the United States. Under international law, enforced disappearances occur when persons are deprived of their liberty, and the detaining authority refuses to disclose their fate or whereabouts, or refuses to acknowledge their detention, which places the detainees outside the protection of the law. International treaties ratified by the United States prohibit incommunicado detention of persons in secret locations. Many of the detainees listed below are suspected of involvement in serious crimes, including the September 11, 2001 attacks; the 1998 U.S. Embassy bombings in Kenya and Tanzania; and the 2002 bombing at two nightclubs in Bali, Indonesia. ... Yet none on this list has been arraigned or criminally charged, and government officials, speaking anonymously to journalists, have suggested that some detainees have been tortured or seriously mistreated in custody. The current location of these prisoners is unknown. List, as of December 1, 2005: ... 4. Abu Zubaydah (also known as Zain al-Abidin Muhammad Husain). Reportedly arrested in March 2002, Faisalabad, Pakistan. Palestinian (born in Saudi Arabia), suspected senior al-Qaeda operational planner. Listed as captured in ‘ George W. Bush: Record of Achievement. Waging and Winning the War on Terror ’, available on the White House website. Previously listed as ‘ disappeared ’ by Human Rights Watch. ... 9. Abd al-Rahim al-Nashiri (or Abdulrahim Mohammad Abda al-Nasheri, aka Abu Bilal al-Makki or Mullah Ahmad Belal). Reportedly arrested in November 2002, United Arab Emirates. Saudi or Yemeni, suspected al-Qaeda chief of operations in the Persian Gulf, and suspected planner of the USS Cole bombing, and attack on the French oil tanker, Limburg. Listed in ‘ George W. Bush: Record of Achievement, Waging and Winning the War on Terror ’, available on the White House website. Previously listed as ‘ disappeared ’ by Human Rights Watch. ... ... 11. Mustafa al-Hawsawi (aka al-Hisawi) Reportedly arrested on March 1, 2003 (together with Khaled Sheikh Mohammad), Pakistan. Saudi, suspected al-Qaeda financier. Previously listed as “disappeared” by Human Rights Watch. 12. Khaled Sheikh Mohammed Reportedly arrested on March 1, 2003, Rawalpindi, Pakistan. Kuwaiti (Pakistani parents), suspected al-Qaeda, alleged to have “masterminded” Sept. 11 attacks, killing of Daniel Pearl, and USS Cole attack in 2000. Listed in “George W. Bush: Record of Achievement, Waging and Winning the War on Terror,” available on the White House website. Previously listed as “disappeared” by Human Rights Watch. ... ” VIII. SELECTED MEDIA REPORTS AND ARTICLES A. International media 1. Reports published in 2002 251. On 11 March 2002 The Washington Post published an article by R. Chandrasekaran and P. Finn entitled “US Behind Secret Transfer of Terror Suspects” which read, in so far as relevant, as follows: “Since Sept. 11, the U.S. government has secretly transported dozens of people suspected of links to terrorists to countries other than the United States, bypassing extradition procedures and legal formalities, according to Western diplomats and intelligence sources. The suspects have been taken to countries, including Egypt and Jordan, whose intelligence services have close ties to the CIA and where they can be subjected to interrogation tactics Including torture and threats to families - that are illegal in the United States, the sources said. In some cases, U.S. intelligence agents remain closely involved in the interrogation, the sources said. After September 11, these sorts of movements have been occurring all the time ’, a US diplomat told the Washington Post. ‘ It allows us to get information from terrorists in a way we can ’ t do on US soil ’. ... U.S. involvement in seizing terrorism suspects in third countries and shipping them with few or no legal proceedings to the United States or other countries - known as ‘ rendition ’ - is not new. In recent years, U.S. agents, working with Egyptian intelligence and local authorities in Africa, Central Asia and the Balkans, have sent dozens of suspected Islamic extremists to Cairo or taken them to the United States, according to U.S. officials, Egyptian lawyers and human rights groups. ... ” 252. On 12 March 2002 The Guardian published an article written by D. Campbell, entitled “US sends suspects to face torture” which was to an extent based on the above article in the Washington Post. It read, in so far as relevant, as follows: “The US has been secretly sending prisoners suspected of al-Qaida connections to countries where torture during interrogation is legal, according to US diplomatic and intelligence sources. Prisoners moved to such countries as Egypt and Jordan can be subjected to torture and threats to their families to extract information sought by the US in the wake of the September 11 attacks. The normal extradition procedures have been bypassed in the transportation of dozens of prisoners suspected of terrorist connections, according to a report in the Washington Post. The suspects have been taken to countries where the CIA has close ties with the local intelligence services and where torture is permitted. According to the report, US intelligence agents have been involved in a number of interrogations. A CIA spokesman yesterday said the agency had no comment on the allegations. A state department spokesman said the US had been ‘ working very closely with other countries ’ – it ’ s a global fight against terrorism ’. ... The seizing of suspects and taking them to a third country without due process of law is known as ‘ rendition ’. The reason for sending a suspect to a third country rather than to the US, according to the diplomats, is an attempt to avoid highly publicised cases that could lead to a further backlash from Islamist extremists. ... The US has been criticised by some of its European allies over the detention of prisoners at Camp X-Ray in Guantánamo Bay, Cuba. After the Pentagon released pictures of blindfolded prisoners kneeling on the ground, the defence secretary, Donald Rumsfeld, was forced to defend the conditions in which they were being held. Unsuccessful attempts have been made by civil rights lawyers based in Los Angeles to have the Camp X-Ray prisoners either charged in US courts or treated as prisoners of war. The US administration has resisted such moves, arguing that those detained, both Taliban fighters and members of al-Qaida, were not entitled to be regarded as prisoners of war because they were terrorists rather than soldiers and were not part of a recognised, uniformed army.” 253. On 2 April 2002 ABC News reported: “US officials have been discussing whether Zubaydah should be sent to countries, including Egypt or Jordan, where much more aggressive interrogation techniques are permitted. But such a move would directly raise a question of torture ... Officials have also discussed sending Zubaydah to Guantànamo Bay or to a military ship at sea. Sources say it ’ s imperative to keep him isolated from other detainees as part of psychological warfare, and even more aggressive tools may be used.” 254. Two Associated Press reports of 2 April 2002 stated: “Zubaydah is in US custody, but it ’ s unclear whether he remains in Pakistan, is among 20 al Qaeda suspects to be sent to the US naval station at Guantànamo Bay, Cuba, or will be transported to a separate location.” and: “US officials would not say where he was being held. But they did say he was not expected in the United States any time soon. He could eventually be held in Afghanistan, aboard a Navy ship, at the US base in Guantànamo Bay, Cuba, or transferred to a third country.” 255. On 26 December 2002 The Washington Post published a detailed article entitled “Stress and Duress Tactics Used on Terrorism Suspects Held in Secret Overseas Facilities”. The article referred explicitly to the practice of rendition and summarised the situation as follows: “a brass-knuckled quest for information, often in concert with allies of dubious human rights reputation; in which the traditional lines between right and wrong, legal and inhumane, are evolving and blurred. ... ‘ If you don ’ t violate someone ’ s human rights some of the time; you probably aren ’ t doing your job, ’ said one official who has supervised the capture and transfer of accused terrorists.” The article also noted that “there were a number of secret detention centers overseas where US due process does not apply ... where the CIA undertakes or manages the interrogation of suspected terrorists ... off-limits to outsiders and often even to other government agencies. In addition to Bagram and Diego Garcia, the CIA has other detention centres overseas and often uses the facilities of foreign intelligence services”. The Washington Post also gave details on the rendition process: “The takedown teams often ‘ package ’ prisoners for transport, fitting them with hoods and gags, and binding them to stretchers with duct tape.” The article received worldwide exposure. In the first weeks of 2003 it was, among other things, the subject of an editorial in the Economist and a statement by the World Organisation against Torture. 2. Reports published in 2005 256. On 2 November 2005 The Washington Post reported that the United States had used secret detention facilities in Eastern Europe and elsewhere to hold illegally persons suspected of terrorism. The article, entitled “CIA Holds Terror Suspects in Secret Prisons” cited sources from the US Government, notably the CIA, but no specific locations in Eastern Europe were identified. It was written by Dana Priest, an American journalist. She referred to the countries involved as “Eastern-European countries”. It read, in so far as relevant, as follows: “The CIA has been hiding and interrogating some of its most important al Qaeda captives at a Soviet-era compound in Eastern Europe, according to U.S. and foreign officials familiar with the arrangement. The secret facility is part of a covert prison system set up by the CIA nearly four years ago that at various times has included sites in eight countries, including Thailand, Afghanistan and several democracies in Eastern Europe, as well as a small center at the Guantánamo Bay prison in Cuba, according to current and former intelligence officials and diplomats from three continents. The hidden global internment network is a central element in the CIA ’ s unconventional war on terrorism. It depends on the cooperation of foreign intelligence services, and on keeping even basic information about the system secret from the public, foreign officials and nearly all members of Congress charged with overseeing the CIA ’ s covert actions. The existence and locations of the facilities – referred to as ‘ black sites ’ in classified White House, CIA, Justice Department and congressional documents – are known to only a handful of officials in the United States and, usually, only to the president and a few top intelligence officers in each host country. ... Although the CIA will not acknowledge details of its system, intelligence officials defend the agency ’ s approach, arguing that the successful defense of the country requires that the agency be empowered to hold and interrogate suspected terrorists for as long as necessary and without restrictions imposed by the U.S. legal system or even by the military tribunals established for prisoners held at Guantánamo Bay. The Washington Post is not publishing the names of the Eastern European countries involved in the covert program, at the request of senior U.S. officials. They argued that the disclosure might disrupt counterterrorism efforts in those countries and elsewhere and could make them targets of possible terrorist retaliation. ... It is illegal for the government to hold prisoners in such isolation in secret prisons in the United States, which is why the CIA placed them overseas, according to several former and current intelligence officials and other U.S. government officials. Legal experts and intelligence officials said that the CIA ’ s internment practices also would be considered illegal under the laws of several host countries, where detainees have rights to have a lawyer or to mount a defense against allegations of wrongdoing. Host countries have signed the U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, as has the United States. Yet CIA interrogators in the overseas sites are permitted to use the CIA ’ s approved “Enhanced Interrogation Techniques,” some of which are prohibited by the U.N. convention and by U.S. military law. They include tactics such as ‘ waterboarding ’, in which a prisoner is made to believe he or she is drowning. ... The contours of the CIA ’ s detention program have emerged in bits and pieces over the past two years. Parliaments in Canada, Italy, France, Sweden and the Netherlands have opened inquiries into alleged CIA operations that secretly captured their citizens or legal residents and transferred them to the agency ’ s prisons. More than 100 suspected terrorists have been sent by the CIA into the covert system, according to current and former U.S. intelligence officials and foreign sources. This figure, a rough estimate based on information from sources who said their knowledge of the numbers was incomplete, does not include prisoners picked up in Iraq. The detainees break down roughly into two classes, the sources said. About 30 are considered major terrorism suspects and have been held under the highest level of secrecy at black sites financed by the CIA and managed by agency personnel, including those in Eastern Europe and elsewhere, according to current and former intelligence officers and two other U.S. government officials. Two locations in this category – in Thailand and on the grounds of the military prison at Guantánamo Bay – were closed in 2003 and 2004, respectively. A second tier – which these sources believe includes more than 70 detainees – is a group considered less important, with less direct involvement in terrorism and having limited intelligence value. These prisoners, some of whom were originally taken to black sites, are delivered to intelligence services in Egypt, Jordan, Morocco, Afghanistan and other countries, a process sometimes known as “rendition.” While the first-tier black sites are run by CIA officers, the jails in these countries are operated by the host nations, with CIA financial assistance and, sometimes, direction. ... The top 30 al Qaeda prisoners exist in complete isolation from the outside world. Kept in dark, sometimes underground cells, they have no recognized legal rights, and no one outside the CIA is allowed to talk with or even see them, or to otherwise verify their well-being, said current and former and U.S. and foreign government and intelligence officials. ... The Eastern European countries that the CIA has persuaded to hide al Qaeda captives are democracies that have embraced the rule of law and individual rights after decades of Soviet domination. Each has been trying to cleanse its intelligence services of operatives who have worked on behalf of others – mainly Russia and organized crime. ... By mid-2002, the CIA had worked out secret black-site deals with two countries, including Thailand and one Eastern European nation, current and former officials said. An estimated $100 million was tucked inside the classified annex of the first supplemental Afghanistan appropriation. ...” 257. On 5 December 2005, ABC News published a report, by Brian Ross and Richard Esposito, entitled “Sources Tell ABC News Top Al Qaeda Figures Held in Secret CIA Prisons – 10 Out of 11 High-Value Terror Leaders Subjected to ‘ Enhanced Interrogation Techniques ’ ” and listing the names of top al-Qaeda terrorist suspects held in Poland and Romania, including the applicant. This report was available on the Internet for only a very short time; it was withdrawn from ABC News ’ webpage shortly thereafter following the intervention of lawyers on behalf of the network ’ s owners. At present, the content is again publicly available and reads, in so far as relevant, as follows: “Two CIA secret prisons were operating in Eastern Europe until last month when they were shut down following Human Rights Watch reports of their existence in Poland and Romania. Current and former CIA officers speaking to ABC News on the condition of confidentiality say the United States scrambled to get all the suspects off European soil before Secretary of State Condoleezza Rice arrived there today. The officers say 11 top al Qaeda suspects have now been moved to a new CIA facility in the North African desert. CIA officials asked ABC News not to name the specific countries where the prisons were located, citing security concerns. The CIA declines to comment, but current and former intelligence officials tell ABC News that 11 top al Qaeda figures were all held at one point on a former Soviet air base in one Eastern European country. Several of them were later moved to a second Eastern European country. All but one of these 11 high-value al Qaeda prisoners were subjected to the harshest interrogation techniques in the CIA ’ s secret arsenal, the so-called ‘ enhanced interrogation techniques ’ authorized for use by about 14 CIA officers and first reported by ABC News on Nov. 18. Rice today avoided directly answering the question of secret prisons in remarks made on her departure for Europe, where the issue of secret prisons and secret flights has caused a furor. Without mentioning any country by name, Rice acknowledged special handling for certain terrorists. ‘ The captured terrorists of the 21st century do not fit easily into traditional systems of criminal or military justice, which were designed for different needs. We have had to adapt ’, Rice said. The CIA has used a small fleet of private jets to move top al Qaeda suspects from Afghanistan and the Middle East to Eastern Europe, where Human Rights Watch has identified Poland and Romania as the countries that housed secret sites. But Polish Defense Minister Radosław Sikorski told ABC Chief Investigative Correspondent Brian Ross today: ‘ My president has said there is no truth in these reports. ’ Ross asked: ‘ Do you know otherwise, sir, are you aware of these sites being shut down in the last few weeks, operating on a base under your direct control? ’ Sikorski answered, ‘ I think this is as much as I can tell you about this ’. In Romania, where the secret prison was possibly at a military base visited last year by Defense Secretary Donald Rumsfeld, the new Romanian prime minister said today there is no evidence of a CIA site but that he will investigate. Sources tell ABC that the CIA ’ s secret prisons have existed since March 2002 when one was established in Thailand to house the first important al Qaeda target captured. Sources tell ABC that the approval for another secret prison was granted last year by a North African nation. Sources tell ABC News that the CIA has a related system of secretly returning other prisoners to their home country when they have outlived their usefulness to the United States. These same sources also tell ABC News that U.S. intelligence also ships some ‘ unlawful combatants ’ to countries that use interrogation techniques harsher than any authorized for use by U.S. intelligence officers. They say that Jordan, Syria, Morocco and Egypt were among the nations used in order to extract confessions quickly using techniques harsher than those authorized for use by U.S. intelligence officers. These prisoners were not necessarily citizens of those nations. According to sources directly involved in setting up the CIA secret prison system, it began with the capture of Abu [Zubaydah] in Pakistan. After treatment there for gunshot wounds, he was whisked by the CIA to Thailand where he was housed in a small, disused warehouse on an active airbase. There, his cell was kept under 24-hour closed circuit TV surveillance and his life-threatening wounds were tended to by a CIA doctor specially sent from Langley headquarters to assure Abu Zubaydah was given proper care, sources said. Once healthy, he was slapped, grabbed, made to stand long hours in a cold cell, and finally handcuffed and strapped feet up to a water board until after 0.31 seconds he begged for mercy and began to cooperate. ... ” 3. ABC News reports of 2009 258. On 20 August 2009 ABC News reported that up to the end of 2005 a secret CIA prison had been operating in Lithuania for the purposes of detention of high-value al-Qaeda terrorists. In particular, it was reported that according to “former CIA officials directly involved or briefed” on the CIA programme, “Lithuanian officials provided the CIA with a building on the outskirts of Vilnius, the country ’ s capital, where as many as eight suspects were held for more than a year.” The published report, by Matthew Cole, was entitled “Lithuania Hosted Secret CIA Prison To Get ‘ Our Ear ’ ” reads, in so far as relevant, as follows: “A third European country has been identified to ABC News as providing the CIA with facilities for a secret prison for high-value al Qaeda suspects: Lithuania, the former Soviet state. Former CIA officials directly involved or briefed on the highly classified program tell ABC News that Lithuanian officials provided the CIA with a building on the outskirts of Vilnius, the country ’ s capital, where as many as eight suspects were held for more than a year, until late 2005 when they were moved because of public disclosures about the program. Flight logs viewed by ABC News confirm that CIA planes made repeated flights into Lithuania during that period. The CIA told ABC News that reporting the location of the now-closed prison was ‘ irresponsible ’. ‘ The CIA does not publicly discuss where facilities associated with its past detention program may or may not have been located ’, said CIA spokesman Paul Gimigliano. ‘ We simply do not comment on those types of claims, which have appeared in the press from time to time over the years. The dangers of airing such allegations are plain. These kinds of assertions could, at least potentially, expose millions of people to direct threat. That is irresponsible ’. Former CIA officials tell ABC News that the prison in Lithuania was one of eight facilities the CIA set-up after 9/11 to detain and interrogate top al Qaeda operatives captured around the world. Thailand, Romania, Poland, Morocco, and Afghanistan have previously been identified as countries that housed secret prisons for the CIA. According to a former intelligence official involved in the program, the former Soviet Bloc country agreed to host a prison because it wanted better relations with the U.S. Asked whether the Bush administration or the CIA offered incentives in return for allowing the prison, the official said, ‘ We didn ’ t have to ’. The official said, ‘ They were happy to have our ear ’. Through their embassy in Washington, the Lithuanian government denied hosting a secret CIA facility. ‘ The Lithuanian Government denies all rumors and interpretations about alleged secret prison that supposedly functioned on Lithuanian soil and possibly was used by [CIA] ’, said Tomas Gulbinas, an embassy spokesman. CIA Secret Prisons According to two top government officials at the time, revelations about the existence of prisons in Eastern Europe in late 2005 by the Washington Post and ABC News led the CIA to close its facilities in Lithuania and Romania and move the al ‑ Qaeda prisoners out of Europe. The so-called High Value Detainees (HVD) were moved into ‘ war zone ’ facilities, according to one of the former CIA officials, meaning they were moved to Iraq and Afghanistan. Within nine months, President Bush announced the existence of the program and ordered the transfer of 14 of the detainees, including Khaled Sheikh Mohammed, Ramzi bin al Shihb and Abu Zubaydah, to Guantánamo, where they remain in CIA custody. The CIA high value detainee (HVD) program began after the March 2002 capture of Abu Zubaydah. Within days, the CIA arranged for Zubaydah to be flown to Thailand. Later, in mid-2003 after Thai government and intelligence officials became nervous about hosting a secret prison for Zubaydah and a second top al Qaeda detainee, according to a former CIA officer involved in the program. One was transferred to a facility housed on a Polish intelligence base in December 2002, said a former official involved with transferring detainees. The facility was known as Ruby Base, according to two former CIA officials familiar with the location. One of the former CIA officers involved in the secret prison program allowed ABC News to view flight logs that show aircraft used to move detainees to and from the secret prisons in Lithuania, Thailand, Afghanistan, Poland, Romania, Morocco and Guantánamo Bay. The purpose of the flights, said the officer, was to move terrorist suspects. The official told ABC News that the CIA arranged for false flight plans to be submitted to European aviation authorities. Planes flying into and out of Lithuania, for example, were ordered to submit paperwork that said they would be landing in nearby countries, despite actually landing in Vilnius, he said. ‘ Finland and Poland were used most frequently ’ as false destinations, the former CIA officer told ABC News. A similar system was used to land planes in Romania and Poland. Interrogation and Detention Program Lithuania, Poland, and Romania have all ratified the U.N. Convention Against Torture as well as the European Convention on Human Rights. All three countries ’ legal systems prohibit torture and extrajudicial detention. Polish authorities are currently conducting an investigation into whether any Polish law was broken by government officials there in hosting one of the secret prisons, according to a published report in the German magazine Der Spiegel. ‘ There are important legal issues at stake ’, said human rights researcher John Sifton. ‘ As with Poland and Romania, CIA personnel involved in any secret detentions and interrogations in Lithuania were not only committing violations of U.S. federal law and international law, they were also breaking Lithuanian laws relating to lawless detention, assault, torture, and possibly war crimes. Lithuanian officials who worked with the CIA were breaking applicable Lithuanian laws as well ’. Washington has been sharply divided over whether investigations into the interrogation and detention program should be opened. The CIA has been ordered by a federal judge to declassify and release much of the agency ’ s inspector general report about the first years of the program by next week. Attorney General Eric Holder has said that he is weighing whether he should appoint a special prosecutor to investigate alleged abuses in the program after reading the IG report. At issue are instances of abuse that went beyond the guidelines set up by the Office of Legal Counsel (OLC), which included waterboarding and sleep deprivation of up to 11 days, according to people aware of Holder ’ s thinking. President Obama has called the practices ‘ torture and abolished the program within a few days of taking office this year. But the president has also said that his administration intended to ‘ look forward ’ not backward at Bush-era policies of interrogation and detention. One current intelligence official involved in declassifying the IG report told ABC News that the unredacted portions will reveal how and when CIA interrogators used methods and tactics that were not permitted by the OLC. ‘ The focus will be on the cases where rules were broken ’, the official said. ‘ But remember that all instances were referred to the Justice Department and only one resulted in a prosecution ’, said the official, referring to the conviction of CIA contractor David Passaro, who beat an Afghan detainee to death in 2003.” 259. On 18 November 2009 ABC News published another report, by Matthew Cole and Brian Ross, entitled “CIA Secret “Torture” Prison Found at Fancy Horseback Riding Academy”. It reads, in so far as relevant, as follows: “The CIA built one of its secret European prisons inside an exclusive riding academy outside Vilnius, Lithuania, a current Lithuanian government official and a former U.S. intelligence official told ABC News this week. Where affluent Lithuanians once rode show horses and sipped coffee at a café, the CIA installed a concrete structure where it could use harsh tactics to interrogate up to eight suspected al-Qaeda terrorists at a time. ‘ The activities in that prison were illegal ’, said human rights researcher John Sifton. ‘ They included various forms of torture, including sleep deprivation, forced standing, painful stress positions ’. Lithuanian officials provided ABC News with the documents of what they called a CIA front company, Elite, LLC, which purchased the property and built the “black site” in 2004. Lithuania agreed to allow the CIA prison after President George W. Bush visited the country in 2002 and pledged support for Lithuania ’ s efforts to join NATO. ‘ The new members of NATO were so grateful for the U.S. role in getting them into that organization that they would do anything the U.S. asked for during that period ’, said former White House counterterrorism czar Richard Clarke, now an ABC News consultant. ‘ They were eager to please and eager to be cooperative on security and on intelligence matters ’. Lithuanian president Dalia Grybauskaitė declined ABC ’ s request for an interview. ABC News first reported that Lithuania was one of three eastern European countries, along with Poland and Romania, where the CIA secretly interrogated suspected high-value al-Qaeda terrorists, but until now the precise site had not been confirmed. Until March 2004, the site was a riding academy and café owned by a local family. The facility is in the town of Antaviliai, in the forest 20 kilometers northeast of the city center of Vilnius, near an exclusive suburb where many government officials live. A ‘ Building Within A Building ’ In March 2004, the family sold the property to Elite, LLC, a now-defunct company registered in Delaware and Panama and Washington, D.C. That same month, Lithuania marked its formal admission to NATO. The CIA constructed the prison over the next several months, apparently flying in prefabricated elements from outside Lithuania. The prison opened in Sept. 2004. According to sources who saw the facility, the riding academy originally consisted of an indoor riding area with a red metallic roof, a stable and a cafe. The CIA built a thick concrete wall inside the riding area. Behind the wall, it built what one Lithuanian source called a ‘ building within a building ’. On a series of thick concrete pads, it installed what a source called ‘ prefabricated pods ’ to house prisoners, each separated from the other by five or six feet. Each pod included a shower, a bed and a toilet. Separate cells were constructed for interrogations. The CIA converted much of the rest of the building into garage space. Intelligence officers working at the prison were housed next door in the converted stable, raising the roof to add space. Electrical power for both structures was provided by a 2003 Caterpillar autonomous generator. All the electrical outlets in the renovated structure were 110 volts, meaning they were designed for American appliances. European outlets and appliances typically use 220 volts. The prison pods inside the barn were not visible to locals. They describe seeing large amounts of earth being excavated during the summer of 2004. Locals who saw the activity at the prison and approached to ask for work were turned away by English-speaking guards. The guards were replaced by new guards every 90 days. Former CIA officials directly involved or briefed on the highly classified secret prison program tell ABC News that as many as eight suspects were held for more than a year in the Vilnius prison. Flight logs viewed by ABC News confirm that CIA planes made repeated flights into Lithuania during that period. In November 2005, after public disclosures about the program, the prison was closed, as was another ‘ black site ’ in Romania. Lithuanian Prison One of Many Around Europe, Officials Said The CIA moved the so-called High Value Detainees (HVD) out of Europe to ‘ war zone ’ facilities, according to one of the former CIA officials, meaning they were moved to the Middle East. Within nine months, President Bush announced the existence of the program and ordered the transfer of 14 of the detainees, including Khaled Sheikh Muhammad, Ramzi bin al Shihb and Abu Zubaydah, to Guantánamo. In August 2009, after ABC News reported the existence of the secret prison outside Vilnius, Lithuanian president Grybauskaitė called for an investigation. If this is true ’, Grybauskaitė said, ‘ Lithuania has to clean up, accept responsibility, apologize, and promise it will never happen again ’. At the time, a Lithuanian government official denied that his country had hosted a secret CIA facility. The CIA told ABC News that reporting the existence of the Lithuanian prison was ‘ irresponsible ’ and declined to discuss the location of the prison. On Tuesday, the CIA again declined to talk about the prison. ‘ The CIA ’ s terrorist interrogation program is over ’, said CIA spokesman Paul Gimigliano. ‘ This agency does not discuss publicly where detention facilities may or may not have been ’. Former CIA officials told ABC News that the prison in Lithuania was one of eight facilities the CIA set-up after 9/11 to detain and interrogate top al-Qaeda operatives captured around the world. Thailand, Romania, Poland, Morocco, and Afghanistan have also been identified as countries that housed secret prisons for the CIA. President Barack Obama ordered all the sites closed shortly after taking office in January. The Lithuanian prison was the last ‘ black ’ site opened in Europe, after the CIA ’ s secret prison in Poland was closed down in late 2003 or early 2004. ‘ It obviously took a lot of effort to keep [the prison] secret ’, said John Sifton, whose firm One World Research investigates human rights abuses. “There ’ s a reason this stuff gets kept secret ’. ‘ It ’ s an embarrassment, and a crime ’ .” 4. Other Reports (2009- 2011) 260. On 19 November 2009 The Washington Post published a report by Craig Whitlock, entitled “Lithuania investigates possible ‘ black site ’ ”. It read, is so far as relevant: “ANTAVILIAI, LITHUANIA -- Residents of this village were mystified five years ago when tight-lipped American construction workers suddenly appeared at a mothballed riding stable here and built a large, two-story building without windows, ringed by a metal fence and security cameras. Today, a Lithuanian parliamentary committee is investigating whether the CIA operated a secret prison for terrorism suspects on the plot of land at the edge of a thick forest for more than a year, from 2004 until late 2005. Lithuanian land registry documents reviewed by The Washington Post show the property was bought in March 2004 by Elite LLC, an unincorporated U.S. firm registered in the District. Records in Lithuania and Washington do not reveal the names of individual officers for Elite but identify its sole shareholder as Star Finance Group and Holdings Inc., a Panamanian corporation. There is no record of Elite owning other property in Lithuania. The company, which has since had its registration revoked by D.C. authorities, in turn sold the property to the Lithuanian government in 2007, two years after the existence of the CIA ’ s overseas network of secret prisons known as black sites -- including some in Eastern Europe -- was first revealed by The Washington Post. At the time, The Post withheld the names of Eastern European countries involved in the covert program at the request of White House officials, who argued that disclosure could subject those countries to retaliation from al-Qaeda. The Lithuanian government has not publicly confirmed whether the property was one of the CIA ’ s black sites. The site in Antaviliai, about 15 miles outside the capital, Vilnius, is now used by Lithuania ’ s State Security Department as a training center. Department officials have declined to comment on the circumstances under which it acquired the property or whether it was used by the CIA. A CIA spokesman also declined to comment. Domas Grigaliūnas, a former counterintelligence officer with the Lithuanian military, said it was widely known among the Lithuanian secret services that U.S. intelligence partners had built the site, although its original purpose was kept highly classified. ’ ‘ It just popped up out of nowhere ’, he said in an interview. ‘ Everybody knew this was handed to us by the Americans ’. Grigaliūnas said he was asked in 2004 by the deputy director of Lithuanian military intelligence to develop plans to help a ‘ foreign partner ’ that was interested in bringing individuals to Lithuania and concealing their whereabouts as part of a covert operation. He said he made some recommendations but was never told the identity of the foreign partner or whether the operation was carried out. Since then, however, he said he has become convinced that the program involved the CIA ’ s detention centers for terrorism suspects. ‘ I have no documents to prove it, and I never worked in any prisons, but I believe they existed here ’, he said in an interview. Villagers who live in a crumbling apartment complex about 100 yards from the site recalled how English-speaking construction workers descended on a small, shuttered horse-riding academy there in 2004. They said the workers refused to answer questions about what they were doing but brought shipping containers filled with building materials. The workers also excavated large amounts of soil; with all the digging, residents said they assumed that part of the new facility was underground. ‘ If you got close, they would tell us, in English, to go away ’, said a retired man who lives nearby and spoke on the condition of anonymity, citing fears of retribution. ‘ We were really wondering what they were up to. We even wondered if it was a Mafia drug operation or something ’. Members of the Lithuanian Parliament ’ s National Security and Defense Committee visited the site recently as part of their investigation into whether the CIA detained terrorism suspects on Lithuanian territory. The probe was authorized last month by the Parliament after ABC News reported in August that two CIA-chartered flights had brought al-Qaeda prisoners from Afghanistan to Vilnius in 2004 and 2005. Lithuanian government officials denied the ABC News report at the time and said there was no documentation that the flights ever landed in their country. But the Parliament decided to take another look after Lithuania ’ s newly elected president, Dalia Grybauskaitė, said in October that she had ‘ indirect suspicions ’ that reports of the CIA prison were accurate and urged a more comprehensive investigation. Arvydas Anušauskas, chairman of the National Security and Defense Committee, declined to comment on its findings. In response to written questions submitted by The Post, he said the committee would interview ‘ all the persons who might have known or could have known the information in question ’. ‘ The committee has all rights and tools to ultimately clarify the situation and to either confirm or deny any allegations of the transportation of detainees by the Central Intelligence Agency of the United States and their detention on the territory of the Republic of Lithuania ’, he said. Lithuanian officials have also been pressed to investigate by the Council of Europe, an official human rights watchdog, which has conducted its own probe of CIA operations on the continent. Council officials said they had received confidential records confirming that CIA-chartered planes had flown from Afghanistan to Vilnius in 2004 and 2005. Thomas Hammarberg, the council ’ s commissioner for human rights, said in a telephone interview that flight logs had been doctored to indicate that the planes had touched down in neighboring countries, including Finland and Poland. Hammarberg visited Vilnius last month and said he personally urged Lithuanian officials to take the issue more seriously. ‘ I told them it is quite likely that further information might leak from the United States, so they should hurry up and do their own investigation now ’, he said.” 261. On 22 December 2009 Agence France Press published a report by Marielle Vitureau, entitled “Lithuania May Have Hosted Two US ‘ War on Terror ’ Jails”. It reads in so far as relevant, as follows: “Vilnius - Staunch US ally Lithuania may have hosted two ‘ war on terror ’ lock-ups used by American agents to interrogate suspected Al-Qaeda members, the head of an inquiry commission said Tuesday. “ ‘ The sites existed ’, Arvydas Anušauskas told reporters as he presented the findings of a probe launched last month by Lithuanian lawmakers. ‘ And planes landed ’. But Anušauskas noted it was not possible to say if any suspects were actually brought to the Baltic state. ‘ Regarding the ‘ cargo ’, I can ’ t confirm anything, because Lithuanian authorities could not carry out the usual checks, so what was being transported was unknown ’, he explained. Ex-president Valdas Adamkus, who was in power for much of the period that the sites are believed to have operated, rejected the findings. ‘ I am certain this never happened and nobody proved me wrong ’, Adamkus told the Baltic News Service. Lithuania ’ s parliament called for an investigation after the US television channel ABC alleged that the ex-Soviet republic had hosted a CIA ‘ black site ’, or secret facility, for a handful of captives. ABC cited unnamed former intelligence officials. The move, it was told, was a trade-off for Washington ’ s unbending support for Lithuania ’ s 2004 NATO admission. Ex-communist US allies Romania and Poland have faced similar claims in the past. ‘ We have identified the sites. The first project was developed from 2002. In response to the wishes of our partners and the conditions that were imposed, the site was meant to host one person. The second site was created in 2004 ’, Anušauskas said. The second site is believed to have been a converted riding school in the hamlet of Antaviliai, some 20 kilometres (13 miles) from Vilnius. It was purchased in March 2004 by a US-registered firm Elite LLC - purportedly a CIA front. According to information obtained by AFP, the US embassy in Vilnius was involved in acquiring the site for two million litas (579,000 euros, 829,000 dollars). ‘ The lay-out of the buildings, their secret nature, the fence around the site, plus the only sporadic visits by VSD operatives [i.e. the SSD], enabled our partners to carry out activities without VSD control and to use the place however they liked ’, said Anušauskas, using the acronym for Lithuanian intelligence. Lithuania ’ s land register shows that the Lithuanian state bought the property in January 2007. It reportedly has since served as a VSD training centre. Prime Minister Andrius Kubilius, in government since winning an election in October 2008, slammed the VSD. ‘ The biggest concern comes from the fact that a few agents, without consulting the head of state, took a decision that breached the law ’, he told reporters, adding that ‘ the VSD became a state within a state ’. Defence Minister Rasa Juknevičienė said she had previously thought the claims were ‘ nonsense ’. ‘ I could not say this today ’, she told reporters. The probe found that five CIA-linked aircraft landed on Lithuanian soil from 2003 to 2006. Two touched down in Vilnius on February 3, 2003, and October 6, 2005. In the second case, border guards were barred from checking the plane, Anušauskas said. Three other aircraft landed at Palanga, on the Baltic coast, around 330 kilometres from Vilnius, on January 2 and February 18, 2005, and March 25, 2006. Anušauskas said the probe concluded that Lithuania ’ s heads of state were ‘ not informed, or only informed superficially ’ about the sites. Adamkus was in power from 1998 to 2003 and again from 2004 to 2009. In between, Rolandas Paksas served a year in office before being impeached in a graft case. Earlier this month, Paksas said that in 2003 he declined a VSD request to transfer suspects to Lithuania. The VSD boss at the time, Mečys Laurinkus, said this month that the request had been hypothetical.” 262. On 8 December 2011 The Independent published an article written by A. Goldman and M. Apuzzo, entitled “Inside Romania ’ s secret CIA prison”. While the article concerned the alleged CIA “black site” in Bucharest, it also referred in passing to a secret detention facility in Lithuania. The relevant parts read: “The Romanian prison was part of a network of so-called black sites that the CIA operated and controlled overseas in Thailand, Lithuania and Poland. All the prisons were closed by May 2006, and the CIA ’ s detention and interrogation programme ended in 2009. Unlike the CIA ’ s facility in Lithuania ’ s countryside or the one hidden in a Polish military installation, the CIA ’ s prison in Romania was not in a remote location. It was hidden in plain sight, a couple blocks off a major boulevard on a street lined with trees and homes, along busy train tracks. ... The Romanian and Lithuanian sites were eventually closed in the first half of 2006 before CIA Director Porter Goss left the job. Some of the detainees were taken to Kabul, where the CIA could legally hold them before they were sent to Guantánamo. Others were sent back to their native countries.” B. Lithuanian media 263. The applicant produced copies of a number of articles in the Lithuanian press published from 2003 onwards, referring to capture and transfer of detainees to Guantánamo and the conditions of their detention. The summary of the media coverage produced by the applicant in English reads as follows: “(i) On 18 June 2004, the Baltic News Service reported on secret CIA detention, noting that U.S. Secretary of Defence Donald Rumsfeld had acknowledged the secret detention of individuals by the CIA in order to avoid scrutiny by the ICRC. On 26 July 2004, Delfi.lt, the leading Lithuanian online news site, published a lengthy discussion of the “question of means” in the “war on terrorism.” The report described the dilemma facing European states supporting the U.S. fight against terrorism in the light of the abusive United States detention and interrogation policies in Afghanistan, Guantánamo and Iraq. In October 2004, a major daily, Lietuvos Rytas, described the ongoing scandal of prisoner torture by United States officials in Afghanistan. In March 2005, Lietuvos Rytas reported that United States allies were “irritated” by the detention and torture tactics used by the USA. (ii) On 17 December 2004, the Baltic News Service reported on the secret CIA prison established at Guantánamo Bay and the incommunicado detention of detainees there. (iii) On 7 March 2005, the major Lithuanian news agency ELTA reported on the classified Top Secret executive order issued by United States President George Bush in the first days after 11 September 2001 that gave broad authority for the CIA to conduct secret renditions, detention and interrogation. Referring to the “programme of prisoner rendition”, ELTA described some of the abusive conditions under which detainees were held and interrogated. (iv) The following week ELTA reported that European officials would investigate whether the CIA agents had violated the law while carrying out rendition operations in Europe involving transfer of persons to countries where they could face torture. According to ELTA, “the CIA usually organises these operations with the consent of local surveillance organisations; the governments of Italy, Germany and Sweden are investigating whether these actions infringe local laws and human rights.” This was followed on 25 October 2005 by the Baltic News Service reporting that the United States government was seeking to exempt CIA employees from the application of the prohibition of cruel and humiliating treatment. (v) On 2 November 2005 ELTA reported on allegations of secret detention facilities in neighbouring Poland and Romania, noting that both denied the existence of CIA secret prisons on their territory but that the Council of Europe was investigating the claims. (vi) In November 2005 reports began to emerge in Lithuania that aircraft associated with the CIA rendition programme, including N313P and N379P, had used Lithuanian airspace. Lithuanian newspapers published numerous reports in November 2005 detailing the nature of the allegations of a CIA network of secret prisons.” IX. INTERNATIONAL INQUIRIES RELATING TO THE CIA SECRET DETENTION AND RENDITION OF SUSPECTED TERRORISTS IN EUROPE, INCLUDING LITHUANIA A. Council of Europe 1. Procedure under Article 52 of the Convention 264. In November 2005, the Secretary General of the Council of Europe, Mr Terry Davis, acting under Article 52 of the Convention and in connection with reports of European collusion in secret rendition flights, sent a questionnaire to – at that time 45 – States Parties to the Convention, including Lithuania. The States were asked to explain how their internal law ensured the effective implementation of the Convention on four issues: 1) adequate controls over acts by foreign agents in their jurisdiction; 2) adequate safeguards to prevent, as regards any person in their jurisdiction, unacknowledged deprivation of liberty, including transport, with or without the involvement of foreign agents; 3) adequate responses (including effective investigations) to any alleged infringements of ECHR rights, notably in the context of deprivation of liberty, resulting from conduct of foreign agents; 4) whether since 1 January 2002 any public official had been involved, by action or omission, in such deprivation of liberty or transport of detainees; whether any official investigation was under way or had been completed. 265. Lithuania ’ s reply was prepared by the Ministry of Foreign Affairs on the basis of information provided by the relevant State institutions. The reply was approved at a consultation meeting of the Lithuanian Government and was discussed at a meeting of the Seimas Foreign Affairs Committee when it considered the issue of the activities of the United States secret services in Europe allegedly carried out in violation of human rights. No competent State institution, either in the course of preparation of the replies by the Ministry of Foreign Affairs or during consideration of the issue by the Seimas Foreign Affairs Committee, provided evidence confirming that the CIA or other United States secret services had been engaged in the illegal confinement of suspected terrorists on Lithuanian territory. Nor was there any information confirming that Lithuania ’ s airports had been used for covert transportation of suspected terrorists. 266. In February 2006 the Lithuanian Government provided the Secretary General with answers to the questions posed. The response was a brief summary of the legal framework governing the functioning of foreign agents in Lithuania and the theoretical possibility of claiming damages for unlawful actions by State officials. 267. In a letter of 7 March 2006 the Secretary General noted that the explanations provided by the Lithuanian Government did not address all the questions in a sufficiently detailed way. He asked for supplementary explanations on 1) control mechanisms regarding transiting aircraft which might be used for rendition purposes by foreign agencies, and to what extent the Lithuanian authorities could exercise jurisdiction over such aircraft; 2) whether since 1 January 2002 any Lithuanian officials had been involved in secret rendition, and whether any investigations had been conducted in that connection. Lithuania replied on 7 April 2006. 268. On 14 June 2006 the Secretary General issued the Supplementary report under Article 52 ECHR on the question of secret detention and transport of detainees suspected of terrorist acts, notably by or at the instigation of foreign agencies (SG/Inf92006)13). It contained the results of an analysis of the replies received in response to the second series of letters sent by the Secretary General. Lithuania ’ s replies as regards control mechanisms concerning transiting aircraft which might be used for rendition purposes by foreign agencies, and to what extent the Lithuanian authorities could exercise jurisdiction over such aircraft were included in the report. The relevant sections read as follows: “3. Control mechanisms regarding transiting aircraft ... 3.2. State aircraft 51. Several States explain in detail their national legislation stipulating clearance requirements for foreign State aircraft (Denmark, Croatia, Georgia, Latvia, Lithuania and Portugal). From the replies given, it appears that foreign governments are generally not required to provide information on the identity and status of persons on board. Once an authorisation is granted, the State aircraft benefits from immunity and is not subject to controls. ... No country mentions the use of specific procedures or clauses designed to ensure effective guarantees against serious human rights violations. 52. Latvia (in 2005) and Lithuania (in 2004) enacted comprehensive regulations prescribing the procedure of granting permits for foreign State aircraft. Requests for permission must be made in advance. They must indicate, among other things, the number of passengers (but not their identity, except for VIPs), the purpose of the flight, the flight route and the airports used. ... 53. Estonia, Georgia, Lithuania and Slovenia indicate that any transport of detained persons through their respective territories requires prior consent by the Ministry of Justice or the Prosecutor General ’ s Office. However, according to the replies of Lithuania and Slovenia, such consent would not be required for transportation by air without a scheduled landing. 54. In contrast to the replies to my first letter (see paragraph 55 of SG/Inf(2006)5), several countries now refer to “general” or “blanket” overflight clearances or rights. Referring to NATO regulations, Latvia and Lithuania declare that NATO has the right to carry out the control and defence of their respective airspace. Military aircraft of NATO member States are accordingly exempt from existing control mechanisms. ... Such arrangements appear to be based on mutual trust. No information is provided about possible safeguards against abuse. 55. Lithuania indicates that it granted permanent permissions (valid each time for one year) to use its airspace to US State aircraft from 2001 to 2006. ... ” As regards the question whether, since 1 January 2002 (or since the date of entry into force of the Convention if it had occurred later) any public official had been involved in any manner – by action or omission – in the unacknowledged deprivation of liberty of any individual or transport of any individual so deprived of their liberty, including where such deprivation of liberty may have occurred by or at the instigation of any foreign agency, Lithuania responded in the negative. 2. Parliamentary Assembly ’ s inquiry - the Marty Inquiry 269. On 1 November 2005 the PACE launched an investigation into allegations of secret detention facilities being run by the CIA in many member states, for which Swiss Senator Dick Marty was appointed rapporteur. On 15 December 2005 the Parliamentary Assembly requested an opinion from the Venice Commission on the legality of secret detention in the light of the member states ’ international legal obligations, particularly under the European Convention on Human Rights. (a) The 2006 Marty Report 270. On 7 June 2006 Senator Dick Marty presented to the PACE his first report prepared in the framework of the investigation launched on 1 November 2005 (see paragraph 266 above), revealing what he called a global “spider ’ s web” of CIA detentions and transfers and alleged collusion in this system by 14 Council of Europe member states. The document, as published by the PACE, was entitled “Alleged secret detentions and unlawful inter-state transfers of detainees involving Council of Europe member states” (Doc. 10957) and commonly referred to as “the 2006 Marty Report”. The report explained in detail the CIA methodology of the CIA extraordinary rendition operations and the so-called “global spider ’ s web” of routes taken by the CIA planes executing rendition missions. The report did not refer to Lithuania. 271. Chapter 1.8, in paragraph 22 stated: “22. There is no formal evidence at this stage of the existence of secret CIA detention centres in Poland, Romania or other Council of Europe member states, even though serious indications continue to exist and grow stronger. Nevertheless, it is clear that an unspecified number of persons, deemed to be members or accomplices of terrorist movements, were arbitrarily and unlawfully arrested and/or detained and transported under the supervision of services acting in the name, or on behalf, of the American authorities. These incidents took place in airports and in European airspace, and were made possible either by seriously negligent monitoring or by the more or less active participation of one or more government departments of Council of Europe member states.” 272. Chapter 6, entitled “Attitude of governments”, stated, among other things, the following: “230. It has to be said that most governments did not seem particularly eager to establish the alleged facts. The body of information gathered makes it unlikely that European states were completely unaware of what, in the context of the fight against international terrorism, was happening at some of their airports, in their airspace or at American bases located on their territory. Insofar as they did not know, they did not want to know. It is inconceivable that certain operations conducted by American services could have taken place without the active participation, or at least the collusion, of national intelligence services. If this were the case, one would be justified in seriously questioning the effectiveness, and therefore the legitimacy, of such services. The main concern of some governments was clearly to avoid disturbing their relationships with the United States, a crucial partner and ally. Other governments apparently work on the assumption that any information learned via their intelligence services is not supposed to be known.” 273. Chapter 11 contained conclusions. It stated, inter alia, the following: “280. Our analysis of the CIA rendition ’ programme has revealed a network that resembles a ‘ spider ’ s web ’ spun across the globe. The analysis is based on official information provided by national and international air traffic control authorities, as well as other information including from sources inside intelligence agencies, in particular the American. This ‘ web ’, shown in the graphic, is composed of several landing points, which we have subdivided into different categories, and which are linked up among themselves by civilian planes used by the CIA or military aircraft. ... 282. In two European countries only (Romania and Poland), there are two other landing points that remain to be explained. Whilst these do not fall into any of the categories described above, several indications lead us to believe that they are likely to form part of the ‘ rendition circuits ’. These landings therefore do not form part of the 98% of CIA flights that are used solely for logistical purposes, but rather belong to the 2% of flights that concern us the most. These corroborated facts strengthen the presumption – already based on other elements – that these landings are detainee drop-off points that are near to secret detention centres. ... 287. Whilst hard evidence, at least according to the strict meaning of the word, is still not forthcoming, a number of coherent and converging elements indicate that secret detention centres have indeed existed and unlawful inter-state transfers have taken place in Europe. I do not set myself up to act as a criminal court, because this would require evidence beyond reasonable doubt. My assessment rather reflects a conviction based upon careful examination of balance of probabilities, as well as upon logical deductions from clearly established facts. It is not intended to pronounce that the authorities of these countries are ‘ guilty ’ for having tolerated secret detention sites, but rather it is to hold them ‘ responsible ’ for failing to comply with the positive obligation to diligently investigate any serious allegation of fundamental rights violations. 288. In this sense, it must be stated that to date, the following member States could be held responsible, to varying degrees, which are not always settled definitively, for violations of the rights of specific persons identified below (respecting the chronological order as far as possible): - Sweden, in the cases of Ahmed Agiza and Mohamed Alzery; - Bosnia-Herzegovina, in the cases of Lakhdar Boumediene, Mohamed Nechle, Hadj Boudella, Belkacem Bensayah, Mustafa Ait Idir and Saber Lahmar (the ‘ Algerian six ’ ); - The United Kingdom in the cases of Bisher Al-Rawi, Jamil El-Banna and Binyam Mohamed; - Italy, in the cases of Abu Omar and Maher Arar; - “The former Yugoslav Republic of Macedonia”, in the case of Khaled El-Masri; - Germany, in the cases of Abu Omar, of the “Algerian six”, and Khaled El-Masri; - Turkey, in the case of the “Algerian six”. 289. Some of these above mentioned states, and others, could be held responsible for collusion – active or passive (in the sense of having tolerated or having been negligent in fulfilling the duty to supervise) - involving secret detention and unlawful inter-state transfers of a non-specified number of persons whose identity so far remains unknown: - Poland and Romania, concerning the running of secret detention centres; - Germany, Turkey, Spain and Cyprus for being ‘ staging points ’ for flights involving the unlawful transfer of detainees.” (b) The 2007 Marty Report 274. On 11 June 2007 the PACE (Committee on Legal Affairs and Human Rights) adopted the second report prepared by Senator Marty (“the 2007 Marty Report”) (doc. 11302.rev.), revealing that high-value detainees had been held in Romania and in Poland in secret CIA detention centres during the period from 2002 to 2005. The report did not rule out the possibility that the CIA secret detention facilities might also have existed in other Council of Europe member states. The report relied, inter alia, on the cross-referenced testimonies of over thirty serving and former members of intelligence services in the US and Europe, and on a new analysis of computer “data strings” from the international flight planning system. Lithuania was not mentioned in the document. However, the PACE urged the States to conduct national investigations of the alleged implementation of the covert CIA programme of detention and interrogation of suspected terrorists, and proposed that the democratic control and supervision of secret services be strengthened. 275. The introductory remarks referring to the establishment of facts and evidence gathered, read, in so far as relevant: “7. There is now enough evidence to state that secret detention facilities run by the CIA did exist in Europe from 2003 to 2005, in particular in Poland and Romania. These two countries were already named in connection with secret detentions by Human Rights Watch in November 2005. At the explicit request of the American government, The Washington Post simply referred generically to ‘ eastern European democracies ’, although it was aware of the countries actually concerned. It should be noted that ABC did also name Poland and Romania in an item on its website, but their names were removed very quickly in circumstances which were explained in our previous report. We have also had clear and detailed confirmation from our own sources, in both the American intelligence services and the countries concerned, that the two countries did host secret detention centres under a special CIA programme established by the American administration in the aftermath of 11 September 2001 to “kill, capture and detain” terrorist suspects deemed to be of ‘ high value ’. Our findings are further corroborated by flight data of which Poland, in particular, claims to be unaware and which we have been able to verify using various other documentary sources. 8. The secret detention facilities in Europe were run directly and exclusively by the CIA. To our knowledge, the local staff had no meaningful contact with the prisoners and performed purely logistical duties such as securing the outer perimeter. The local authorities were not supposed to be aware of the exact number or the identities of the prisoners who passed through the facilities – this was information they did not ‘ need to know. ’ While it is likely that very few people in the countries concerned, including in the governments themselves, knew of the existence of the centres, we have sufficient grounds to declare that the highest state authorities were aware of the CIA ’ s illegal activities on their territories. ... 10. In most cases, the acts took place with the requisite permissions, protections or active assistance of government agencies. We believe that the framework for such assistance was developed around NATO authorisations agreed on 4 October 2001, some of which are public and some of which remain secret. According to several concurring sources, these authorisations served as a platform for bilateral agreements, which – of course – also remain secret. 11. In our view, the countries implicated in these programmes have failed in their duty to establish the truth: the evidence of the existence of violations of fundamental human rights is concrete, reliable and corroborative. At the very least, it is such as to require the authorities concerned at last to order proper independent and thorough inquiries and stop obstructing the efforts under way in judicial and parliamentary bodies to establish the truth. International organisations, in particular the Council of Europe, the European Union and NATO, must give serious consideration to ways of avoiding similar abuses in future and ensuring compliance with the formal and binding commitments which states have entered into in terms of the protection of human rights and human dignity. 12. Without investigative powers or the necessary resources, our investigations were based solely on astute use of existing materials – for instance, the analysis of thousands of international flight records – and a network of sources established in numerous countries. With very modest means, we had to do real “intelligence” work. We were able to establish contacts with people who had worked or still worked for the relevant authorities, in particular intelligence agencies. We have never based our conclusions on single statements and we have only used information that is confirmed by other, totally independent sources. Where possible we have cross-checked our information both in the European countries concerned and on the other side of the Atlantic or through objective documents or data. Clearly, our individual sources were only willing to talk to us on the condition of absolute anonymity. At the start of our investigations, the Committee on Legal Affairs and Human Rights authorised us to guarantee our contacts strict confidentiality where necessary. ... The individuals concerned are not prepared at present to testify in public, but some of them may be in the future if the circumstances were to change. ...” 276. In paragraph 30 of the report it is stressed that “the HVD programme ha[d] depended on extraordinary authorisations – unprecedented in nature and scope – at both national and international levels. In paragraphs 75 and 83 it was added that: “75. The need for unprecedented permissions, according to our sources, arose directly from the CIA ’ s resolve to lay greater emphasis on the paramilitary activities of its Counterterrorism Center in the pursuit of high-value targets, or HVTs. The US Government therefore had to seek means of forging intergovernmental partnerships with well-developed military components, rather than simply relying upon the existing liaison networks through which CIA agents had been working for decades. ... 83. Based upon my investigations, confirmed by multiple sources in the governmental and intelligence sectors of several countries, I consider that I can assert that the means to cater to the CIA ’ s key operational needs on a multilateral level were developed under the framework of the North Atlantic Treaty Organisation (NATO). ...” 277. In paragraphs 112-122 the 2007 Marty Report referred to bilateral agreements between the US and certain countries to host “black sites” for high value detainees. This part of the document read, in so far as relevant, as follows: “112. Despite the importance of the multilateral NATO framework in creating the broad authorisation for US counter-terrorism operations, it is important to emphasise that the key arrangements for CIA clandestine operations in Europe were secured on a bilateral level. ... 115. The bilaterals at the top of this range are classified, highly guarded mandates for ‘ deep ’ forms of cooperation that afford – for example – ‘ infrastructure ’, ‘ material support and / or ‘ operational security ’ to the CIA ’ s covert programmes. This high-end category has been described to us as the intelligence sector equivalent of ‘ host nation ’ defence agreements – whereby one country is conducting operations it perceives as being vital to its own national security on another country ’ s territory. 116. The classified ‘ host nation ’ arrangements made to accommodate CIA ‘ black sites ’ in Council of Europe member states fall into the last of these categories. 117. The CIA brokered ‘ operating agreements ’ with the Governments of Poland and Romania to hold its High-Value Detainees (HVDs) in secret detention facilities on their respective territories. Poland and Romania agreed to provide the premises in which these facilities were established, the highest degrees of physical security and secrecy, and steadfast guarantees of non-interference. 118. We have not seen the text of any specific agreement that refers to the holding of High-Value Detainees in Poland or Romania. Indeed it is practically impossible to lay eyes on the classified documents in question or read the precise agreed language because of the rigours of the security-of-information regime, itself kept secret, by which these materials are protected. 119. However, we have spoken about the High-Value Detainee programme with multiple well-placed sources in the governments and intelligence services of several countries, including the United States, Poland and Romania. Several of these persons occupied positions of direct involvement in and/or influence over the negotiations that led to these bilateral arrangements being agreed upon. Several of them have knowledge at different levels of the operations of the HVD programme in Europe. 120. These persons spoke to us upon strict assurances of confidentiality, extended to them under the terms of the special authorisation I received from my Committee last year. For this reason, in the interests of protecting my sources and preserving the integrity of my investigations, I will not divulge individual names. Yet I can state unambiguously that their testimonies - insofar as they corroborate and validate one another – count as credible, plausible and authoritative.” (c) The 2011 Marty Report 278. On 16 September 2011 the PACE (Committee on Legal Affairs and Human Rights) adopted the third report prepared by Senator Marty, entitled “Abuse of state secrecy and national security: obstacles to parliamentary and judicial scrutiny of human rights violations” (“the 2011 Marty Report”), which described the effects of, and progress in, national inquiries into CIA secret detention facilities in some of the Council of Europe ’ s member states. 279. The summary of the report read: “Secret services and intelligence agencies must be held accountable for human rights violations such as torture, abduction or renditions and not shielded from scrutiny by unjustified resort to the doctrine of ‘ state secrets ’, according to the Committee on Legal Affairs and Human Rights. The committee evaluates judicial or parliamentary inquiries launched after two major Assembly reports five years ago named European governments which had hosted CIA secret prisons or colluded in rendition and torture (including Poland, Romania, Lithuania, Germany, Italy, the United Kingdom and the former Yugoslav Republic of Macedonia). Prosecutors in Lithuania, Poland, Portugal and Spain are urged to persevere in seeking to establish the truth and authorities in the United States are called on to co ‑ operate with them. The committee considers that it is possible to put in place judicial and parliamentary procedures which protect ‘ legitimate ’ state secrets, while still holding state agents accountable for murder, torture, abduction or other human rights violations.” 280. Paragraphs 14-15 and 37-39 related to Lithuania. They read as follows: “14. In Lithuania, the prosecuting authorities launched a criminal investigation following the revelations of the parliamentary inquiry concerning the existence of two ‘ black sites ’ in the country. The investigation drew in particular on information published in February 2010 in the United Nations joint study on secret detention, which was based on analysis of flight plans and ‘ data strings ’, analogous data to those already used by us to discover the existence of ‘ black sites ’ in Poland and Romania. The British NGO Reprieve also gave the Lithuanian [Prosecutor General] some important elements in its letter of 21 September 2010. Reprieve presented information according to which a “high-value detainee” known as Abu Zubaydah had been detained secretly in Lithuania between 2004 and 2006, in the course of a journey which had allegedly taken him from Thailand to Szymany in Poland, then to Guantánamo Bay and Morocco. After his spell in Lithuania between spring 2004 and September 2006, he was allegedly returned to Guantánamo Bay. But the Lithuanian prosecuting authorities eventually suspended their investigation without any result - despite protests by Amnesty International. Amnesty International considers that numerous ‘ obvious ’ leads had not been followed up by the prosecutors, who in their view also accepted too easily the limits imposed on their investigation by the invocation of state secrecy. The prosecutor ’ s office, for its part, justifies its decision to suspend the investigation by the statute of limitations for a possible abuse of authority and by the refusal of the American authorities to provide the information requested. We consider that the lack of co-operation of the American authorities, as noted before in relation to the German, Italian and Polish authorities, raises a serious problem indeed. This situation is also due to the attitude of those European governments, which abandoned all control over the use of their own infrastructures they unconditionally put at the disposal of the American administration, in the wake of the acceptation of the implementation of Article 5 of the NATO treaty and of the operative measures accepted by the members of the alliance. In this way, the European governments effectively placed themselves in a position of reliance or even dependence on the good will of the American authorities. 15. The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), in its report on the visit to Lithuania from 14-18 June 2010, published with the agreement of the Lithuanian authorities on 19 May 2011, provided an initial evaluation of the criminal investigation concerning the secret prisons, raising critical questions as to the promptness of the investigation, the comprehensiveness of its scope and its thoroughness. Most importantly, for this report, the CPT pointed out that it “did not receive the specific information it requested, either during the above-mentioned meeting or from the Lithuanian authorities ’ response of 10 September 2010. ... It is affirmed that more specific information cannot be provided as the major part of the data gathered during the investigation constitutes a state or service secret.” The CPT has an impeccable track record, over 20 years, of keeping the confidentiality of information received in the pursuit of its delicate mission. It publishes only the final report, and only upon the request of the national authorities. It is therefore unacceptable, in my view, that even the CPT did not get access to the information required in order to determine, in accordance with its mandate, whether the investigation by the Lithuanian prosecutor ’ s office into the serious torture allegations in question was performed with due diligence, as required both by the European Convention against Torture and Inhuman and Degrading Treatment and the European Convention on Human Rights. ... 37. In Lithuania, the Seimas finally undertook a fairly serious inquiry, following some initial hesitations. Indeed, when ABC News caused an outcry by mentioning anonymous sources linked with the CIA which claimed that Lithuania had provided a site outside Vilnius where ‘ high-value detainees ’ were held up to the end of 2005, the chairperson of the parliamentary [Committee on National Security and Defence], Mr Arvydas Anušauskas, initiated a preliminary inquiry. The fairly swift conclusion presented at a joint meeting of that committee with the committee on external relations was that there was not enough evidence to justify the opening of a formal parliamentary inquiry. But on the occasion of the visit of the Council of Europe Commissioner for Human Rights, Thomas Hammarberg, in October 2009, the Commissioner and the President of Lithuania, Ms Grybauskaitė, publicly expressed scepticism about the preliminary inquiry. On 5 November 2009, the Lithuanian Parliament finally instructed the [Committee on National Security and Defence] to undertake a full parliamentary inquiry, which yielded its results as early as 22 December that year. Despite the short time allowed, the findings were quite substantial: Lithuanian agents had participated in the American programme of transfer of prisoners and secret prisons; it was possible to trace at least six landings of aircraft used in this programme. The CIA asked the Lithuanian secret service (SSD) for assistance in preparing places of detention for persons suspected of activities linked with terrorism, and two locations are said to have actually been prepared for this purpose: the first had apparently never been used while the investigation was unable to establish whether people had actually been held prisoner at the second (at Antaviliai on the outskirts of Vilnius). But it reportedly emerged that the CIA agents had been able to use it as they pleased without the slightest oversight by the SSD at certain periods. Finally the investigation was also unable to establish whether the state ’ s top leaders were informed of this co-operation. The investigation caused a spate of resignations including those of the SSD chief Povilas Malakauskas and Foreign Affairs Minister Vygaudas Ušackas. The main recommendation of the parliamentarians ’ report was to open the judicial investigation mentioned above, currently impeded by complete lack of co-operation from the US authorities. 38. During the parliamentary inquiry, members of the commission were able to visit the two sites in question but the authorities did not allow access for media and civil society representatives. 39. However, the CPT was able to tour the two sites during a visit to Lithuania between 14 and 18 June 2010. The report on the visit was published with the consent of the Lithuanian authorities on 19 May 2011. The CPT concluded that “the premises did not contain anything that was highly suggestive of a context of detention; at the same time, both of the facilities could be adapted for detention purposes with relatively little effort.” B. European Parliament 1. The Fava Inquiry 281. On 18 January 2006 the European Parliament set up a Temporary Committee on the alleged use of European countries by the CIA for the transportation and illegal detention of prisoners (“TDIP”) and appointed Mr Giovanni Claudio Fava as rapporteur with a mandate to investigate the alleged existence of CIA prisons in Europe. The Fava Inquiry held 130 meetings and sent delegations to the former Yugoslav Republic of Macedonia, the United States, Germany, the United Kingdom, Romania, Poland and Portugal. It identified at least 1,245 flights operated by the CIA in European airspace between the end of 2001 and 2005. 282. In the course of its work, the TDIP analysed specific cases of extraordinary rendition. According to the Fava Report, these cases “involved the illegal transport of a prisoner by the secret services, or other specialist services, of a third country (including, but not exclusively, the CIA and other American security services) to various locations, outside any judicial oversight, where the prisoners have neither fundamental rights nor those guaranteed by various international conventions, such as all habeas corpus procedures, the right of the defence to be assisted by a lawyer, the right to due process within a reasonable time, etc.” The TDIP studied in detail the following cases of extraordinary rendition: Abu Omar (Hassan Mustafa Osama Nasr); Khaled El-Masri; Maher Arar; Mohammed El-Zari; Ahmed Agiza; the ‘ Six Algerians ’ from Bosnia-Herzegovina; Murat Kurnaz; Mohammed Zammar; Abou Elkassim Britel; Binyam Mohammed; Bisher Al-Rawi; Jamil El-Banna; and Martin Mubanga. The TDIP met the victims themselves, their lawyers, the heads of national judicial or parliamentary bodies responsible for specific cases of extraordinary rendition, representatives of European and international organisations or institutions, journalists who followed these cases, representatives of non-governmental organisations, experts in this area either during committee meetings or during official delegation visits. 283. On 30 January 2007 the final report of the Fava Inquiry was published. As far as Lithuania was concerned, the report noted that : (1) Lithuania provided no written response to the committee ’ s invitation to cooperate; (2) official representatives of Lithuania did not receive any request for meetings with the investigators of the TDIP Committee; 3) Lithuania did not provide the investigators with anything useful. The Working Document No. 8 on the companies linked to the CIA, aircraft used by the CIA and the European countries in which CIA aircraft have made stopovers prepared during the work of TDIP and attached to the Fava Report, contained an analysis of CIA flights having stopped over in the European Union countries. It stated that one CIA-operated aircraft, registered N8213G, made one stopover in Lithuania. It appears from the materials of the Seimas inquiry that the flight in question took place on 4 February 2003 made a stopover in Vilnius airport en route to Warsaw, Poland (see paragraph 173 above). The relevant section of the Working Document No. 8 read, in so far as relevant, as follows: “Total number of stopovers of CIA aircraft in Lithuanian airports: 1 Total number of Lithuanian airports involved 1 airport involved List of Lithuanian airports Vilnius (1). Total number of CIA aircraft having stopped over in Lithuania 1 different CIA aircraft. List of CIA aircraft (Registration Numbers) having stopped over in Lithuania: N8213G. Total number of stopovers in Lithuania for each CIA aircraft and relevant details of specific aircraft: N8213G: 1 stopover in Lithuania” 284. The Fava Report was approved by the European Parliament with 382 votes in favour, 256 against with 74 abstentions on 14 February 2007. 2. The 2007 European Parliament Resolution 285. On 14 February 2007, following the examination of the Fava Report, the European Parliament adopted the Resolution on the alleged use of European countries by the CIA for the transportation and illegal detention of prisoners (2006/22009INI) (“the 2007 EP Resolution”). It did not refer to Lithuania. In its general part the resolution referred, among other things, to an “informal transatlantic meeting” that had taken place on 7 December 2005 and involved foreign ministers of the of European Union (“EU”) and North Atlantic Treaty Organisation (“NATO”) and US Secretary of State Condoleezza Rice. The relevant section read as follows: “ The European Parliament, ... L. whereas the Temporary Committee has obtained, from a confidential source, records of the informal transatlantic meeting of European Union (EU) and North Atlantic Treaty Organisation (NATO) foreign ministers, including US Secretary of State Condoleezza Rice, of 7 December 2005, confirming that Member States had knowledge of the programme of extraordinary rendition, while all official interlocutors of the Temporary Committee provided inaccurate information on this matter,” 286. The passages regarding the EU member states read, in so far as relevant: “9. Deplores the fact that the governments of European countries did not feel the need to ask the US Government for clarifications regarding the existence of secret prisons outside US territory; ... 13. Denounces the lack of cooperation of many Member States, and of the Council of the European Union towards the Temporary Committee; stresses that the behaviour of Member States, and in particular the Council and its Presidencies, has fallen far below the standard that Parliament is entitled to expect; ... 39. Condemns extraordinary rendition as an illegal instrument used by the United States in the fight against terrorism; condemns, further, the condoning and concealing of the practice, on several occasions, by the secret services and governmental authorities of certain European countries; ... 43. Regrets that European countries have been relinquishing their control over their airspace and airports by turning a blind eye or admitting flights operated by the CIA which, on some occasions, were being used for extraordinary rendition or the illegal transportation of detainees, and recalls their positive obligations arising out of the case law of the European Court of Human Rights, as reiterated by the European Commission for Democracy through Law (Venice Commission); 44. Is concerned, in particular, that the blanket overflight and stopover clearances granted to CIA-operated aircraft may have been based, inter alia, on the NATO agreement on the implementation of Article 5 of the North Atlantic Treaty, adopted on 4 October 2001; ... 48. Confirms, in view of the additional information received during the second part of the proceedings of the Temporary Committee, that it is unlikely that certain European governments were unaware of the extraordinary rendition activities taking place in their territory; ...” 3. The Flautre Report and the 2012 European Parliament Resolution 287. On 11 September 2012 the European Parliament adopted a report prepared by Hélène Flautre within the Committee on Civil Liberties, Justice and Home Affairs (“LIBE Committee”) – “the Flautre Report”, highlighting new evidence of secret detention centres and extraordinary renditions by the CIA in European Union member states. The report, which came five years after the Fava Inquiry, highlighted new abuses – notably in Romania, Poland and Lithuania, but also in the United Kingdom and other countries – and made recommendations to ensure proper accountability. The report included the Committee on Foreign Affairs ’ opinion and recommendations. 288. In the course of its work, on 27 March 2012, LIBE Committee held a hearing on “What is new on the alleged CIA illegal detention and transfers of prisoners in Europe”. At that hearing Mr Crofton Black from the Bureau of Investigative Journalism was heard as an expert. 289. In April 2012 the LIBE delegation visited Lithuania. The applicant submitted an extract from a publication (in French) authored by Helene Flautre and Bertrand Verfaille entitled “ Le programme secret de la CIA et le Parlement Européen – histoire d ’ un forfait, histoire d ’ un sursaut ” describing the visit of the LIBE delegation to Lithuania. The LIBE delegation visited the premises of Project No. 2, which were given the following description [4] : “[French – orginal] Hélène Flautre décrit une sorte de « bâtiment dans le bâtiment », selon un principe de double coque, des salles plus basses de plafond que d ’ autres, des marches qui pourraient correspondre à celle que d ’ anciens prisonniers de la CIA se souviennent d ’ avoir empruntées, alors que leurs yeux étaient bandés. Le bâtiment est équipé d ’ un énorme appareil de conditionnement d ’ air et d ’ un système de pompage d ’ eau, dont on ne comprend pas bien l ’ utilité. ... [English translation] Hélène Flautre described a kind of ‘ building within the building ’, a double-shell structure, some rooms with lower ceilings than the others and steps which could correspond to those which former prisoners remember taking when blindfolded. The building has an enormous air-conditioning system and a water-pumping system, the purpose of which is not evident.” 290. Following the examination of the Report the European Parliament adopted, on 11 September 2012, the Resolution on alleged transportation and illegal detention of prisoners in European countries by the CIA: follow ‑ up of the European Parliament TDIP Committee report (2012/2033(INI)) (“the 2012 EP Resolution”). Its general part, in so far as relevant, reads as follows: “ The European Parliament, ... T. whereas the Lithuanian authorities have endeavoured to shed light on Lithuania ’ s involvement in the CIA programme by carrying out parliamentary and judicial inquiries; whereas the parliamentary investigation by the Seimas Committee on National Security and Defence concerning the alleged transportation and confinement of persons detained by the CIA on Lithuanian territory established that five CIA ‑ related aircraft landed in Lithuania between 2003 and 2005 and that two tailored facilities suitable for holding detainees in Lithuania (Projects Nos. 1 and 2) were prepared at the request of the CIA; whereas the LIBE delegation thanks the Lithuanian authorities for welcoming Members of the European Parliament to Vilnius in April 2012 and allowing the LIBE delegation access to Project No. 2; whereas the layout of the buildings and installations inside appears to be compatible with the detention of prisoners; whereas many questions relating to CIA operations in Lithuania remain open despite the subsequent judicial investigation conducted in 2010 and closed in January 2011; whereas the Lithuanian authorities have expressed their readiness to re-launch investigations if other new information were to come to light, and whereas the Prosecutor ’ s Office has offered to provide further information on the criminal investigation in response to a written request from Parliament; ... ” 291. Paragraph 14 of the 2012 EP Resolution, which refers to the inquiries in Lithuania, reads: “[The European Parliament], ... “14. Notes that the parliamentary and judicial inquiries that took place in Lithuania between 2009 and 2011 were not able to demonstrate that detainees had been secretly held in Lithuania; calls on the Lithuanian authorities to honour their commitment to reopen the criminal investigation into Lithuania ’ s involvement in the CIA programme if new information should come to light, in view of new evidence provided by the Eurocontrol data showing that plane N787WH, alleged to have transported Abu Zubaydah, did stop in Morocco on 18 February 2005 on its way to Romania and Lithuania; notes that analysis of the Eurocontrol data also reveals new information through flight plans connecting Romania to Lithuania, via a plane switch in Tirana, Albania, on 5 October 2005, and Lithuania to Afghanistan, via Cairo, Egypt, on 26 March 2006; considers it essential that the scope of new investigations cover, beyond abuses of power by state officials, possible unlawful detention and ill ‑ treatment of persons on Lithuanian territory; encourages the Prosecutor General ’ s Office to substantiate with documentation the affirmations made during the LIBE delegation ’ s visit that the ‘ categorical ’ conclusions of the judicial inquiry are that ‘ no detainees have been detained in the facilities of Projects No. 1 and No. 2 in Lithuania; ... ” 4. The 2013 European Parliament Resolution 292. Having regard to the lack of response to the recommendations in the 2012 EP Resolution on the part of the European Commission, on 10 October 2013 the EU Parliament adopted the Resolution on alleged transportation and illegal detention of prisoners in European countries by the CIA (2013/2702(RSP) (“the 2013 EP Resolution”). Its general part read, in so far as relevant, as follows: “The European Parliament, ... F. whereas the Lithuanian authorities have reiterated their commitment to reopening the criminal investigation into Lithuania ’ s involvement in the CIA programme if new elements emerge, but still have not done so; whereas in their observations to the ECtHR in the case of Abu Zubaydah, the Lithuanian authorities demonstrated critical shortcomings in their investigations and a failure to grasp the meaning of the new information; whereas Lithuania holds the presidency of the Council of the European Union in the second half of 2013; whereas a complaint was submitted on 13 September 2013 to the Lithuanian Prosecutor General, calling for an investigation into allegations that Mustafa al-Hawsawi, who is currently facing trial by military commission at Guantánamo Bay, had been illegally transferred to, and secretly detained and tortured in, Lithuania as part of a CIA-led programme; ... ” Paragraph 4, which concerns Lithuania, reads: “[The European Parliament,] ... 4. Urges Lithuania to reopen its criminal investigation into CIA secret detention facilities and to conduct a rigorous investigation considering all the factual evidence that has been disclosed, notably regarding the ECtHR case of Abu Zubaydah v Lithuania; asks Lithuania to allow the investigators to carry out a comprehensive examination of the renditions flight network and contact persons publicly known to have organised or participated in the flights in question; asks the Lithuanian authorities to carry out forensic examination of the prison site and analysis of phone records; urges them to cooperate fully with the ECtHR in the cases of Abu Zubaydah v Lithuania and HRMI v Lithuania; calls on Lithuania, in the context of reopening the criminal investigation, to consider applications for status/participation in the investigation from other possible victims; urges Lithuania to respond in full to requests for information from other EU Member States, in particular the request for information from the Finnish Ombudsman regarding a flight or flights that could link Finland and Lithuania to a possible rendition route; urges the Lithuanian Prosecutor General to carry out a criminal investigation into Mustafa al-Hawsawi ’ s complaint; ... ” 5. The 2015 European Parliament Resolution 293. Following the publication of the 2014 US Senate Committee Report (see paragraphs 21-23 and 69-88 above), on 11 February 2015 the European Parliament adopted the Resolution on the US Senate Committee Report on the use of torture by the CIA (2014/2997(RSP)) (“the 2015 EP Resolution”). The European Parliament, while noting that the applicant ’ s application was pending before the ECHR, reiterated its calls on Member States to “investigate the allegations that there were secret prisons on their territory where people were held under the CIA programme, and to prosecute those involved in these operations, taking into account all the new evidence that has come to light”. The European Parliament further expressed concern regarding the “obstacles encountered by national parliamentary and judicial investigations into some Member States ’ involvement in the CIA programme”. 6. The October 2015 hearing before the LIBE 294. On 13 October 2015 a hearing was held before the LIBE Committee on “Investigation of alleged transportation and illegal detention of prisoners in European Countries by the CIA”. The aim of the hearing was to analyse all past and ongoing parliamentary and judicial inquiries relating to Member States ’ involvement in the CIA programme. During the hearing a research paper was presented by the Policy Department C on the latest developments on Member States investigations into the CIA programme titled: “A quest for accountability? EU and Member State inquiries into the CIA Rendition and Secret Detention Programme”. The Committee also heard a summary overview by Mr Crofton Black from the Bureau of Investigative Journalism on what had been achieved with reference to CIA operated secret prisons in Europe. In particular, Mr Black stated that since the adoption of the 2012 EP Resolution and the publication of the 2014 US Senate Committee Report the evidence had been conclusive that the CIA had operated a prison in Lithuania from February 2005 to March 2006. 7. The 2016 European Parliament Resolution 295. On 8 June 2016 the European Parliament adopted a follow-up resolution to the 2015 EP Resolution (2016/2573(RSP)) (“the 2016 EP Resolution”). In respect of Lithuania, the resolution states, in so far as relevant, as follows: “[The European Parliament ,] 11. Urges Lithuania, Romania and Poland to conduct, as a matter of urgency, transparent, thorough and effective criminal investigations into CIA secret detention facilities on their respective territories, having taken into full consideration all the factual evidence that has been disclosed, to bring perpetrators of human rights violations to justice, to allow the investigators to carry out a comprehensive examination of the renditions flight network and of contact people publicly known to have organised or participated in the flights in question, to carry out forensic examination of the prison sites and the provision of medical care to detainees held at these sites, to analyse phone records and transfers of money, to consider applications for status/participation in the investigation from possible victims, and to ensure that all relevant crimes are considered, including in connection with the transfer of detainees, or to release the conclusions of any investigations undertaken to date; ... 17. Notes that the data collected during the Lithuanian Parliamentary Committee on National Security and Defence (Seimas CNSD) inquiry into Lithuania ’ s involvement in the CIA ’ s secret detention programme has not been made public, and calls for the release of the data;” C. The 2007 ICRC Report 296. The ICRC made its first written interventions to the US authorities in 2002, requesting information on the whereabouts of persons allegedly held under US authority in the context of the fight against terrorism. It prepared two reports on undisclosed detention on 18 November 2004 and 18 April 2006. These reports still remain classified. 297. After the US President publicly confirmed on 6 September 2006 that 14 terrorist suspects (“high value detainees”) – including the applicant – detained under the CIA detention programme had been transferred to the military authorities in the US Guantánamo Bay Naval Base (see paragraph 58 above), the ICRC was granted access to those detainees and interviewed them in private from 6 to 11 October and from 4 to 14 December 2006. On this basis, it drafted its Report on the Treatment of Fourteen “High Value Detainees” in CIA Custody of February 2007 – “the 2007 ICRC Report” – which related to the CIA rendition programme, including arrest and transfers, incommunicado detention and other conditions and treatment. The aim of the report, as stated therein, was to provide a description of the treatment and material conditions of detention of the fourteen detainees concerned during the period they had been held in the CIA programme. The report was (and formally remains) classified as “strictly confidential”. It was published by The New York Review of Books on 6 April 2009 and further disseminated via various websites, including the ACLU ’ s site. 298. Extracts from the 2007 ICRC Report giving a more detailed account of the applicant ’ s and other HVDs ’ treatment in CIA custody can be found in Husayn (Abu Zubaydah) v. Poland (cited above, §§ 101-104 and 276). 299. The sections relating to main elements of the HVD Programme, routine procedures for the detainees ’ transfers and their detention regime read, in so far as relevant, as follows: “1. MAIN ELEMENTS OF THE CIA DETENTION PROGRAM ... The fourteen, who are identified individually below, described being subjected, in particular during the early stages of their detention, lasting from some days up to several months, to a harsh regime employing a combination of physical and psychological ill-treatment with the aim of obtaining compliance and extracting information. This regime began soon after arrest, and included transfers of detainees to multiple locations, maintenance of the detainees in continuous solitary confinement and incommunicado detention throughout the entire period of their undisclosed detention, and the infliction of further ill-treatment through the use of various methods either individually or in combination, in addition to the deprivation of other basic material requirements. ... 2. ARREST AND TRANSFER ... Throughout their detention, the fourteen were moved from one place to another and were allegedly kept in several different places of detention, probably in several different countries. The number of locations reported by the detainees varied, however ranged from three to ten locations prior to their arrival in Guantánamo in September 2006. The transfer procedure was fairly standardised in most cases. The detainee would be photographed, both clothed and naked prior to and again after transfer. A body cavity check (rectal examination) would be carried out and some detainees alleged that a suppository (the type and the effect of such suppositories was unknown by the detainees), was also administered at that moment. The detainee would be made to wear a diaper and dressed in a tracksuit. Earphones would be placed over his ears, through which music would sometimes be played. He would be blindfolded with at least a cloth tied around the head and black goggles. In addition, some detainees alleged that cotton wool was also taped over their eyes prior to the blindfold and goggles being applied. The detainee would be shackled by hands and feet and transported to the airport by road and loaded onto a plane. He would usually be transported in a reclined sitting position with his hands shackled in front. The journey times obviously varied considerably and ranged from one hour to over twenty-four to thirty hours. The detainee was not allowed to go to the toilet and if necessary was obliged to urinate or defecate into the diaper. On some occasions the detainees were transported lying flat on the floor of the plane and/or with their hands cuffed behind their backs. When transported in this position the detainees complained of severe pain and discomfort. In addition to causing severe physical pain, these transfers to unknown locations and unpredictable conditions of detention and treatment placed mental strain on the fourteen, increasing their sense of disorientation and isolation. The ability of the detaining authority to transfer persons over apparently significant distances to secret locations in foreign countries acutely increased the detainees ’ feeling of futility and helplessness, making them more vulnerable to the methods of ill-treatment described below. ... [T]hese transfers increased the vulnerability of the fourteen to their interrogation, and was performed in a manner (goggles, earmuffs, use of diapers, strapped to stretchers, sometimes rough handling) that was intrusive and humiliating and that challenged the dignity of the persons concerned. As their detention was specifically designed to cut off contact with the outside world and emphasise a feeling of disorientation and isolation, some of the time periods referred to in the report are approximate estimates made by the detainees concerned. For the same reasons, the detainees were usually unaware of their exact location beyond the first place of detention in the country of arrest and the second country of detention, which was identified by all fourteen as being Afghanistan. ... 1.2. CONTINUOUS SOLITARY CONFINEMENT AND INCOMMUNICADO DETENTION Throughout the entire period during which they were held in the CIA detention program – which ranged from sixteen months up to almost four and a half years and which, for eleven of the fourteen was over three years – the detainees were kept in continuous solitary confinement and incommunicado detention. They had no knowledge of where they were being held, no contact with persons other than their interrogators or guards. Even their guards were usually masked and, other than the absolute minimum, did not communicate in any way with the detainees. None had any real – let alone regular – contact with other persons detained, other than occasionally for the purposes of inquiry when they were confronted with another detainee. None had any contact with legal representation. The fourteen had no access to news from the outside world, apart from in the later stages of their detention when some of them occasionally received printouts of sports news from the internet and one reported receiving newspapers. None of the fourteen had any contact with their families, either in written form or through family visits or telephone calls. They were therefore unable to inform their families of their fate. As such, the fourteen had become missing persons. In any context, such a situation, given its prolonged duration, is clearly a cause of extreme distress for both the detainees and families concerned and itself constitutes a form of ill-treatment. In addition, the detainees were denied access to an independent third party. ... 1.3. OTHER METHODS OF ILL-TREATMENT ... [T]he fourteen were subjected to an extremely harsh detention regime, characterised by ill-treatment. The initial period of interrogation, lasting from a few days up to several months was the harshest, where compliance was secured by the infliction of various forms of physical and psychological ill-treatment. This appeared to be followed by a reward based interrogation approach with gradually improving conditions of detention, albeit reinforced by the threat of returning to former methods. ... 1.4. FURTHER ELEMENTS OF THE DETENTION REGIME The conditions of detention under which the fourteen were held, particularly during the earlier period of their detention, formed an integral part of the interrogation process as well as an integral part of the overall treatment to which they were subjected as part of the CIA detention program. This report has already drawn attention to certain aspects associated with basic conditions of detention, which were clearly manipulated in order to exert pressure on the detainees concerned. In particular, the use of continuous solitary confinement and incommunicado detention, lack of contact with family members and third parties, prolonged nudity, deprivation/restricted provision of solid food and prolonged shackling have already been described above. The situation was further exacerbated by the following aspects of the detention regime: • Deprivation of access to the open air • Deprivation of exercise • Deprivation of appropriate hygiene facilities and basic items in pursuance of interrogation • Restricted access to the Koran linked with interrogation. These aspects cannot be considered individually, but must be understood as forming part of the whole picture. As such, they also form part of the ill-treatment to which the fourteen were subjected. ... ” D. The 2010 UN Joint Study 300. On 19 February 2010 the Human Rights Council of United Nations Organisation released the “Joint Study on Global Practices in Relation to Secret Detention in the Context of Countering Terrorism of the Special Rapporteur on the Promotion and protection of Human Rights and Fundamental Freedoms while Countering Terrorism” – “the 2010 UN Joint Study” (A/HRC/1342). 301. In the summary, the experts explained their methodology as follows: “In conducting the present study, the experts worked in an open, transparent manner. They sought inputs from all relevant stakeholders, including by sending a questionnaire to all States Members of the United Nations. Several consultations were held with States, and the experts shared their findings with all States concerned before the study was finalized. Relevant ехсerpts of the report were shared with the concerned States on 23 and 24 December 2009. In addition to United Nations sources and the responses to the questionnaire from 44 States, primary sources included interviews conducted with persons who had been held in secret detention, family members of those held captive and legal representatives of detainees. Flight data were also used to corroborate information. In addition to the analysis of the policy and legal decisions taken by States, the aim of the study was also to illustrate, in concrete terms, what it means to be secretly detained, how secret detention can facilitate the practice of torture or inhuman and degrading treatment, and how the practice of secret detention has left an indelible mark on the victims, and on their families as well.” 302. They described their approach to the States ’ complicity in the secret detention as follows: “The experts also address the level of involvement and complicity of a number of countries. For purposes of the study, they provide that a State is complicit in the secret detention of a person when it (a) has asked another State to secretly detain a person; (b) knowingly takes advantage of the situation of secret detention by sending questions to the State detaining the person, or solicits or receives information from persons kept in secret detention; (c) has actively participated in the arrest and/or transfer of a person when it knew, or ought to have known, that the person would disappear in a secret detention facility, or otherwise be detained outside the legally regulated detention system; (d) holds a person for a short time in secret detention before handing them over to another State where that person will be put in secret detention for a longer period; and (e) has failed to take measures to identify persons or airplanes that were passing through its airports or airspace after information of the CIA programme involving secret detention has already been revealed.” 303. In relation to Lithuania the report stated, among other things, the following: “120. With regard to Europe, ABC News recently reported that Lithuanian officials had provided the CIA with a building where as many as eight terrorist suspects were held for more than a year, until late 2005, when they were moved because of public disclosure of the programme. More details emerged in November 2009 when ABC News reported that the facility was built inside an exclusive riding academy in Antaviliai. Research for the present study, including data strings relating to Lithuania, appears to confirm that Lithuania was integrated into the secret detention programme in 2004. Two flights from Afghanistan to Vilnius could be identified: the first, from Bagram, on 20 September 2004, the same day that 10 detainees previously held in secret detention, in a variety of countries, were flown to Guantánamo; the second, from Kabul, on 28 July 2005. The dummy flight plans filed for the flights into Vilnius customarily used airports of destination in different countries altogether, excluding any mention of a Lithuanian airport as an alternate or back-up landing point. 121. On 25 August 2009, the President of Lithuania announced that her Government would investigate allegations that Lithuania had hosted a secret detention facility. On 5 November 2009, the Lithuanian Parliament opened an investigation into the allegation of the existence of a CIA secret detention on Lithuanian territory. In its submission for the present study, the Government of Lithuania provided the then draft findings of this investigation, which in the meantime had been adopted by the full Parliament. In its findings, the Seimas Committee stated that the State Security Department (SSD) had received requests to ‘ equip facilities in Lithuania suitable for holding detainees ’. In relation to the first facility, the Committee found that ‘ conditions were created for holding detainees in Lithuania ’. The Committee could not conclude, however, that the premises were also used for that purpose. In relation to the second facility, the Committee found that: ‘ The persons who gave testimony to the Committee deny any preconditions for and possibilities of holding and interrogating detainees ... However, the layout of the building, its enclosed nature and protection of the perimeter as well as fragmented presence of the SSD staff in the premises allowed for the performance of actions by officers of the partners without the control of the SSD and use of the infrastructure at their discretion ’. The report also found that there was no evidence that the SSD had informed the President, the Prime Minister or other political leaders of the purposes and contents of its cooperation with the CIA regarding these two premises. 122. While the experts welcome the work of the Seimas Committee as an important starting point in the quest for truth about the role played by Lithuania in the secret detention and rendition programme, they stress that its findings can in no way constitute the final word on the country ’ s role. On 14 January 2010, President Dalia Grybauskaitė rightly urged Lithuanian prosecutors to launch a deeper investigation into secret CIA black sites held on the country ’ s territory without parliamentary approval. 123. The experts stress that all European Governments are obliged under the European Convention of Human Rights to investigate effectively allegations of torture or cruel, inhuman or degrading treatment or punishment. Failure to investigate effectively might lead to a situation of grave impunity, besides being injurious to victims, their next of kin and society as a whole, and fosters chronic recidivism of the human rights violations involved. The experts also note that the European Court of Human Rights has applied the test of whether ‘ the authorities reacted effectively to the complaints at the relevant time ’. A thorough investigation should be capable of leading to the identification and punishment of those responsible for any ill treatment; it ‘ must be ‘ effective ’ in practice as well as in law, in particular in the sense that its exercise must not be unjustifiably hindered by the acts or the omissions of the authorities ’. Furthermore, according to the European Court, authorities must always make a serious attempt to find out what happened and ‘ should not rely on hasty or ill ‑ founded conclusions to close their investigation or as the basis of their decisions ’. 124. According to two high-ranking Government officials at the time, revelations about the existence of detention facilities in Eastern Europe in late 2005 by the Washington Post and ABC News led the CIA to close its facilities in Lithuania and Romania and move the Al-Qaida detainees out of Europe. It is not known where these persons were transferred; they could have been moved into ‘ war zone facilities ’ in Iraq and Afghanistan or to another black site, potentially in Africa. The experts were not able to find the exact destination of the 16 high-value detainees between December 2005 and their move to Guantánamo in September 2006. No other explanation has been provided for the whereabouts of the detainees before they were moved to Guantánamo in September 2006.” X. SUMMARY OF WITNESS TESTIMONY PRODUCED BY THE GOVERNMENT 304. In response to the Court ’ s request to provide the transcripts of testimony taken from witnesses in the criminal investigation in connection with the implementation of Project No. 1 and Project No. 2, the Government, in their written observations of 17 September 2015, provided a summary description of the witness testimony in English. In order to protect the witnesses ’ identity and the secrecy of the investigation, their names were anonymised by a single letter of the alphabet and their workplace and function were described in a general manner. However, in some instances several clearly different persons were anonymised by the same letter; for instance, letter “A” designated a person “who held an important political post”; an airport employee; “the officer”; a person “who held a leading post at the SBGS”; and a person “who held a leading post at the Intelligence Services”. Similarly, “B” designated a person “who held a leading post at the Intelligence Services”; an airport employee; “a politician who held an important political post”; an “SBGS officer” and an “employee of another institution”. In sum, in many instances a single letter designated various persons. In view of the foregoing and for the sake of clarity, wherever necessary, the respective witnesses are referred to below as “A”, “A1”, “A3”, etc. The testimony of the witnesses who stated that they “did not remember anything about 6 October 2005”; “did not know anything”; “found out about the events at issue directly from the media”; “did not know anything about any premises”; “could not remember anything of the day in issue”; and “did not know about Project No. 1 and Project No. 2, did not see any premises suitable for holding persons, “found out about the alleged detentions only from ABC News ” and “never heard about the establishment of such premises” are omitted. 305. Until the public hearing, at which the Government withdrew their request to restrict public access to their pleading of 17 September 2015 and documents attached thereto, except to the extent necessary to ensure the protection of personal data, these materials were treated as confidential under Rule 33 § 2 (see also paragraphs 11 and 13 above). 306. The statements rendered below are produced verbatim from the Government ’ s pleading [5]. Witness A 307. On 3 March 2010 a politician, A, who held an important political post at the time of the relevant events into the circumstances of which the pre-trial investigation was initiated, was questioned. The construction of Project No. 2 was funded not by the Government but by the partners. During the investigation it was established that there were up to ten CIA ‑ related flights in Palanga and Vilnius. The politician noted that during the presidency of Rolandas Paksas, Mečys Laurinkus – the former head of the SSD at that time – had applied for the temporary possibility of holding persons suspected of terrorism, but the Head of State had replied in the negative. He noted that it was a general inquiry and that there were such inquiries in other countries too. Witness A1 308. During the questioning on 26 March 2010, A1, who held a post at the airport at the time of the relevant events into the circumstances of which the pre-trial investigation was initiated, indicated that he did not remember if he was working on 6 October 2005. He noted that in cases of departure through the governmental gates only the personal documents should be checked. As an airport employee, A1 noted, during the questioning in the pre-trial investigation, that all vehicles leaving the territory of the airport, to which access was limited, were inspected, paying particular attention to the permission issued to the vehicles or leaving persons. If vehicles left through the governmental gates, they were not inspected. In such cases a letter faxed from the Seimas, the Presidency or the Government, with information as to who, when and what type of vehicle would be leaving was always submitted. Thus, only the documents of leaving persons were inspected. Witness A2 309. On 13 April 2010 A2 was questioned for reasons other than the office he held and not directly related to the circumstances being investigated under the pre-trial investigation. The officer provided information as regards Project No. 2 and information as regards the sale of the premises of Project No. 2 in 2004. The officer observed that after the sale he did not enter the premises and from the outside there were no big changes to be seen. The premises consisted of residential premises of 240 sq. m., a stable of 350 sq. m. and an equestrian hall of 400 sq. m. After the sale the officer interacted with the residents living nearby, but they had not noticed any large equipment or vehicles with flashing lights. Witness A3 310. During the questioning on 15 April 2010, A3, who had held a leading post at the SGPS at the time of the relevant events into the circumstances of which the pre-trial investigation was initiated, testified that there were no requests not to inspect passengers of arriving aircraft. It was also noted that customs would perform cargo control. The SGPS could check only personal documents. Witness A4 311. On 11 June 2010, A, who held a leading post at the Intelligence Services at the time of the relevant events into the circumstances of which the pre-trial investigation was initiated, was questioned. The officer confirmed that Project No. 1 belonged to the Ministry of Foreign Affairs, and the SSD had used it under the agreement. The officer noted that he had never visited the said auxiliary building of Project No. 1. As regards Project No. 2 the officer noted that he did not know anything about it until the premises were turned into the Training Centre of the SSD. He visited the building for the first time in 2007, but did not see any premises that would be suitable for forced restriction of freedom of persons. The officer had to interact with the representatives of international partners, they had joint projects, but no one had ever applied for unlawful detention of persons. There were no such discussions with other officers either. No transportation to/from the airport, escorts or cargos were ever organised and he did not know anything about it. Witness B 312. On 17 February 2010, B, who held a leading post at the Intelligence Services at the time of the relevant events into the circumstances of which the pre-trial investigation was initiated, was questioned. The officer did not know anything about Project No. 2, which is now the Training Centre. The officer had never been there. The officer mentioned that there was talk that the SSD would acquire premises to establish the Training Centre. The officer testified that he was familiar with the premises of Project No. 1. The officer frequently visited the premises of Project No. 1, where the meetings with foreign partners were held, as the said premises were suited better for these meetings. The officer remembered that once, maybe in 2002-2003, a repair had been carried out, but he did not know what specifically had been repaired. The officer had never been in the second building, which perhaps contained garages. The officer did not know about any requests to hold or transport persons, he had never obtained such information. To his knowledge, the SSD, when carrying out joint operations with foreign partners, received funding from the partners either in money or by technical means; however the officer did not know how it was recorded. However, he also remembered that there was talk that the SSD had to be provided with the premises for the establishment of the Training Centre. Witness B1 313. During the questioning on 25 March 2010, B1, who held a post at the airport at the time of the relevant events into the circumstances of which the pre-trial investigation was initiated, did not remember anything about the night of 6 October 2005 or the incident in question. As an airport employee, B1 noted that the aim of the patrolling was to ensure aviation security, i.e. to avoid violations of aviation security, to ensure that persons had permissions, corresponding to the airport regime areas, to ensure that vehicles did not violate traffic regulations and drove with flashing lights on, and to ensure the transport escort in the territory of the platform. The patrolling was shift work, and during one shift the aviation security vehicles usually patrolled. If possible, for safety purposes to observe normal procedure and to ensure that the members of the maintenance staff at the plane had permissions, corresponding to the regime area, a patrol would approach the plane. When the officers of the aviation security approached the planes, they stopped at the red line 5-10 meters away from the plane, which could not be crossed. The officers waited until the plane passengers got on the bus. If there was cargo on the plane, and unless there were call-outs or other planes landing, the officers waited until the cargo was unloaded. However, the safety of the cargo was ensured by the company maintaining the cargo. Witness B2 314. On 8 April 2010 a politician, B2, who held an important political post at the time of the relevant events into the circumstances of which the pre-trial investigation was initiated, was questioned. The politician noted that he was addressed as regards the transportation and holding of people in Lithuania. As far as he understood, he was asked for his opinion in this regard, whether he would have approved it, if it had taken place. The topic of the conversation at the time was to aid the Americans in the fight against terrorism. B2 did not approve of the idea. While holding his post, he did not happen to hear, nor was he aware of any premises arranged for holding people or certain flights. Witness B3 315. During the questioning on 13 April 2010, B3, who held the post of SGPS officer at the time of the relevant events into the circumstances of which the pre-trial investigation was initiated, noted that on 6 October 2005 at 5.15 a.m. an unplanned aircraft from Antalya landed. He wanted to perform an inspection, to write down the number, to find out where the aircraft was from, how many passengers there were, when it was to depart, but a vehicle of Aviation Security stopped him from approaching. He noted that some vehicle left the territory through the border control. He did not remember the data of the vehicle. He did not write anything down. Witness B4 (also referred to as “person B” by the Government) 316. During the questioning on 18 February 2010 an employee of another institution (person B), able to provide valuable information due to his post, testified that on 6 October 2005 a private non-commercial flight of an aircraft “Boeing 737-200”, tail number N787WH, registered in the USA, was recorded. It arrived from Tallinn without passengers at 4.54 a.m. and on 5.59 a.m. departed for Oslo. It arrived at Tallinn from Antalya. On the same day at 3.58 p.m. another aircraft, model “Beech Be-9L F-90” tail number N41AK registered in the USA departed for Glasgow with two passengers. On 2 January 2005 an aircraft “CASA C-212” tail number N961BW registered in the USA landed in Palanga from Flesland (Norway) and departed for Simferopol (Ukraine). On 18 February 2005 an aircraft “Boeing 737” tail number N787WH registered in the USA from Bucharest to Copenhagen landed in Palanga. B4 noted that there were unplanned flights, but they were quite rare. In case of training mainly Palanga Airport was used, as at that airport there were fewer flights. Witness C 317. On 19 February 2010, C, who held a leading post at the Intelligence Services at the time of the relevant events into the circumstances of which the pre-trial investigation was initiated, was questioned. The officer noted that the work of officer D was delegated to him in June 2005. Officer D took officer C to the building in Project No. 1 where there were two-container garages and premises for economic purposes. The SSD administration premises were situated within the same territory. C was able to confirm that the SSD did not have any public or classified documents which could prove that the premises in Project No. 1 were used or arranged as a prison or temporary detention facility. Personally the officer believed that the said premises could not have been used for such purpose because there was a window, residential houses were situated nearby, and one of them was within a distance of 3-4 metres and another one right in front of it. The officer found out about Project No. 2 only in 2007, when the Training Centre began to operate there. The officer later visited it in connection with his work. The officer did not see any premises suitable for holding or detention of persons, he never heard of either. Witness C1 318. During the questioning on 17 March 2010, C1, who held a leading post at the SGPS at the time of the relevant events into the circumstances of which the pre-trial investigation was initiated, testified that nobody applied to the State Border Protection Service to ensure that marks were not put on. C1 noted that the function of the SGPS at the airport was to check the documents of those persons who crossed the State border. The SGPS did not perform the inspection of the planes which landed. The customs officers would inspect the cargo. When a plane landed a State border officer used to approach the plane and to escort the bus to the building. All the passengers would pass through passport control. Witness C2 (also referred to as “person C” by the Government) 319. On 27 April 2010 an employee of another institution was questioned (person C), as he could provide valuable information due to his post. C2 noted that in 2002-2005 there were no incidents similar to that of 6 October 2005. C confirmed that there was some letter of the SSD of 5 October 2005 on the intended SSD measure. The SGPS received the letter on 7 October [2005]. Witness D 320. On 18 February 2010, D, who held a leading post at the Intelligence Services at the time of the relevant events into the circumstances of which the pre-trial investigation was initiated, was questioned. The officer participated in looking for the premises of Project No. 1 and arranging them. Witness D1 321. On 9 March 2010, D1, who due to the duties performed was in other ways connected to the circumstances investigated under the pre-trial investigation, was questioned. The person arranged the premises in Project No. 1. The repairs lasted for around a month. He could not remember the exact works that were carried out. Witness E 322. During the questioning on 18 February 2010, E, who held a leading post at the SGPS at the time of the relevant events into the circumstances of which the pre-trial investigation was initiated, knew about the incident of 6 October 2005 as he was informed about it at 6 a.m. by telephone. He noted that a letter of the SSD on classified training had been submitted. Witness E1 323. On 26 February 2010, E1, who held a leading post in the Intelligence Services at the time of the relevant events into the circumstances of which the pre-trial investigation was initiated, was questioned. The officer noted that he had been at Project No. 2 and pointed out that training took place there. The officer gave lectures there himself. The officer did not know anything about any premises that were suitable for detention. The officer had to directly communicate with foreign partners, but there were no inquires as regards the terrorists. The officer also did not know anything about the flights. An officer E1, who held a leading post at the SSD, noted that he did not know anything and that he visited Project No. 2, where, as he specified, the training took place. He himself gave lectures there. Witness F 324. During the questioning on 20 February 2010, F, who held a leading post at the SGPS at the time of the relevant events into the circumstances of which the pre-trial investigation was initiated, noted that the aircraft departed on 6 October 2005 at 6.05 a.m. The officer had not been informed about it in advance. The officer also noted that the visibility outside was poor. Witness F1 325. During the questioning on 3 March 2010, F1, who held a leading post at the airport at the time of the relevant events into the circumstances of which the pre-trial investigation was initiated, testified that the Operational Services used to issue permissions. F1 noted that the CAA supervised Aviation Security and checked the work. The SSD also used to be in charge of aviation security. The officers of the Intelligence service could enter the regime area only after Aviation Security had been warned in written form about it in advance, also after the permanent permissions, issued to the officers of the Intelligence Service, who provided the airport with permanent maintenance, had been submitted, or after the official passes of those officers had been provided. The duty of the Aviation Security officers was to inspect the documents of the said persons and to check whether they actually were the officers of the Intelligence services. It was noted that Aviation Security had cooperated with the SSD as well as with the other intelligence services. Witness G 326. During the questioning on 11 February 2010, G, who held a leading post in the SGPS at the time of the relevant events into the circumstances of which the pre-trial investigation was initiated, testified that on 6 October 2005 there was an unplanned landing. The officer also noted that the visibility outside was poor. Witness G1 327. During the questioning on 23 February 2010, G1, who held a leading post at the airport at the time of the relevant events into the circumstances of which the pre-trial investigation was initiated, testified that a request not to perform an inspection used to be submitted by the Ministry of Transport and Communications of the Republic of Lithuania. The Patrol Services of Aviation Security together with a subdivision of the Ministry of the Interior used to control passage from/to the territory of Vilnius International Airport. As G1 noted, the Passenger Inspection Service of Aviation Security would check the passengers and their cabin bags prior to entering the plane in order to ensure the security of the plane and the passengers. While the Patrol Services of Aviation Security, together with a department of the Ministry of the Interior, would control the entry of means of transport into the closed territory of the airport, the SGPS would check the passengers, and Customs would deal with the inspection of luggage. Witness G2 328. On 25 March 2010, G2, who held a leading post in the Intelligence Services, associated with the premises of Project No. 2, was questioned. The officer observed that the Training Centre had been moved into Project No. 2 in the middle of 2007. The Training Centre was a structural unit of the SSD, where the introductory, qualification and special training was held. The function of the material supply of the Training Centre was assigned to another unit. There were no cells or other premises suitable for holding persons in the Training Centre. The officer did not know about the source of funding and other matters related to the arrangement of the premises. There were no guard towers or security alarms in Project No. 2. Witness H 329. During the questioning on 11 February 2010, H, who held a post as SGPS officer at the time of the relevant events into the circumstances of which the pre-trial investigation was initiated, testified that there was an unplanned landing and that a State border officer B went to perform an inspection. As soon as a State border officer, H, learnt that he was not allowed to perform the inspection, the officer applied to Aviation Security. The Aviation Security Division made an inquiry as to whether they had received any instructions and also noted that the leading officials of the SGPS had been informed. Witness H1 330. During the questioning on 17 February 2010, H1, who held a leading post at the airport at the time of the relevant events into the circumstances of which the pre-trial investigation was initiated, testified that on 6 October 2005 classified training of the SSD with other States could have taken place. The security of Vilnius International Airport might have been informed about it. The SSD could have brought in and taken out different letters without registering them. There were a lot of international training courses, and the employee H1 could not therefore remember a particular case. If H1 received any request, which was classified, he would keep somebody relevant informed orally. In 2005-2006 there were a lot of flights of the aircraft of NATO member States carrying military and defence delegations in connection with the security of the conferences of NATO Defence Ministers and Ministers for Foreign Affairs in 2005-2006. H1 noted that Aviation Security cooperated with all the Operational Services of the country: those of the Police Department, the Customs Department, the Security Department, the Second Investigation Department under the Ministry of National Defence, the SGPS, the SSD, the SIS and the intelligence services of other institutions. They used to perform certain acts in the areas of limited access in the presence of Aviation Security officers or in their absence. Aviation Security officers had a duty to inspect the documents of those persons in order to ensure that they actually were the officers of the Intelligence Services. The laws regulating the said special services established their right to gain access to the objects. The officers of the Intelligence Services could have access to the regime area after Aviation Security had been warned about it in written form in advance, and also after the permanent authorisations, issued to the officers of the Intelligence services, who provided the airport with the permanent maintenance, had been presented or after the official certificates of those services had been presented. H1 emphasised that the classified SSD training courses with the foreign partners could have taken place and that the SSD could have informed Aviation Security about it by a classified letter. Such letters used to be registered by those institutions, which performed certain acts. There were cases when secret services used to bring such letters and take them away after the acts had been performed. Such letters were not then registered at the office of Aviation Security. The content of such letters could have comprised State secrets. The content of those letters could have been available only to those who had authorisations to work with the secret information. After they had become acquainted with the said content, they would inform orally other employees about it as far as was necessary. The officers of Aviation Security were not always aware of the measures taken by the special services at the airport, or in the area of limited access. There were cases when only oral requests were submitted. Witness K 331. On 4 May 2010, K, who held a leading post in the Intelligence Services at the time of the relevant events into the circumstances of which the pre-trial investigation was initiated, was questioned. This officer noted that there had been a conversation with officer F as regards the possibility of accepting foreign partners and how this should be organised. He thought that the idea was to accept specialists coming for training. There were no talks about detention or about the arrangement of such premises. The officer was told that the premises were suggested for persons under witness protection programmes. It was also pointed out that the military base could be used. The conversations were abstract and there was no specific information. Witness L 332. L, who at the relevant period of time held a leading post in the Intelligence Service, noted that he used to enter the territory controlled by the Vilnius International Airport with a permanent pass. One could also enter the territory with a temporary pass, but such persons could then only enter the territory with an escort. Witness M 333. On 6 April 2010, M, who held a leading post in the Intelligence Services at the time of the relevant events into the circumstances of which the pre-trial investigation was initiated, was questioned. The officer had told officer D about the need to establish premises for the extradition of secret collaborators. Officer M had communicated with the representatives of foreign partners. The officer did not know exactly what the status of the operation in Project No. 1 was. The officer stated that they had discussed an idea with the partners to establish an intelligence support centre. They needed premises where it could operate. N and O were assigned the task of finding suitable premises. It was decided that the premises of Project No. 2 were suitable. Partners used to cover all the expenses. M himself supervised the arrangements process, but he could not provide many details. M noted that there were no premises suitable for custody or detention of persons. Meetings were held in the building. The supervision of the building was carried out by N and O. They used to escort the partners. Due to the fact that the partners ’ plans slightly changed and the building was not exploited fully, it was decided to use it for the establishment of the SSD Training Centre. In 2005 there were 2-3 flights, communications equipment was transported, parcels for partners and vice versa. The representative of partners would apply for security when escorting. The SSD drafted a letter to the airport administration, possibly to the SGPS for the officers to be given access to the territory. The SSD officers escorted the cargo. The officer did not remember where the communications equipment came from – Vilnius International Airport or Palanga Airport – but there was security organised before its transfer. Later the communications equipment was taken away. M told an officer S, who held a leading post, that there were partners ’ requests to escort the cargo. M confirmed that it was possible; however, it should have been agreed with Vilnius International Airport, and the SGPS. The letters for that purpose were drafted. Witness N 1. Questioning on 9 March 2010 334. On 9 March 2010, N, who held a post as an officer at the time of the relevant events into the circumstances of which the pre-trial investigation was initiated, was questioned. In 2003 N and O were assigned to assist the partners. There was a direct order from M. The officer looked for a place close to Vilnius for the acquisition of premises. Once they had chosen the premises, the partners came to have a look at them. The officer and O assisted the representative of the partners, who led the construction work. There were administration and recreation areas, a pool table, table football, darts, a TV, padded benches, a gym, and fitness equipment installed; normally the officer did not have access to the administration area. As regards the acquisition, establishment and maintenance of the building of Project No. 2, no operation file was initiated. There were no premises suitable for detention. N himself had free access to the premises; however, he was not aware of the content of the operations that were carried out. Persons did not arrive at the premises of Project No. 2 on their own. Always somebody, N himself or O, used to meet those persons and to escort them from the airport and back. If there was somebody on the premises of Project No. 2, there was necessarily at least one officer: N himself, M or O. Even when there was nobody on the premises, N together with O supervised the building. N noted that in order to enter the airport a letter for the airport was to be presented. He also noted that different persons used to come to the premises of Project No. 2 more often in the beginning of 2005 and ceasing at the end of the year. He used to supervise the premises together with officer O. He himself did not notice if any equipment was transported from the premises. He visited the premises, but not all the rooms, as they were used and there was no reason for him to do that. Besides him, officers M and O were at the building. There were no other officers there. He himself carried out technical functions. In the second part of the year of 2005 officer M told him that the protection of the building was to be entrusted to a unit in charge. 2. Questioning on 16 March 2010 335. On 16 March 2010, N was questioned again. The officer noted that various persons used to arrive at the premises of Project No. 2 – at the beginning of 2005 more often, and at the end of 2005 it stopped. The officer supervised the premises with O. In the second half of 2005 the officer M told him that the execution of the supervision of the building needs was to be entrusted to a unit in charge. N himself did not see whether there had been any equipment carried away from the premises. Once in 2005 or 2006 N escorted vehicles with the partners to Palanga, the vehicles of the SSD remained and the partners drove towards the aircraft. N himself did not see anything in particular. Then the escort went back to Vilnius. If they needed to go, a letter would be written to the airport. More than once the officer escorted the cargo from the airport, but usually only from Vilnius International Airport. There used to be a specific letter drafted for the airport. Witness O 1. Questioning on 9 March 2010 336. On 9 March 2010, O, who held a leading post in the Intelligence Services at the time of the relevant events into the circumstances of which the pre-trial investigation was initiated, was questioned. He used to escort partners to the airport and went to Palanga and back several times. 2. Questioning on 10 March 2010 337. On 10 March 2010 O was questioned again. In 2003 N told him that it was necessary to find premises. O carried out technical operations. They found the premises needed, which later were called the premises of Project No. 2. Partners chose the premises. They had arrived several times. In the Spring of 2004 partners started to come. They themselves carried out works, brought the material and the equipment in containers. It was necessary to find a site for storage; they found a site and carried containers there. There was a residential area, recreation area, administration area, a gym, a room with table games, a room with padded benches and a TV, and a kitchenette on the premises. O himself had not been to all of the premises. The officer did not know who arrived at the premises and what they were occupied with. They actively supervised the building until the second half of 2005, then the number of visits decreased, the officers themselves were there less often. O carried out the supervision of the building of Project No. 2 in rotation together with N. O himself was there mostly during the day and N at night. A file on the acquisition, repair and maintenance of the building of Project No. 2 was not initiated. From his conversations with M, O realised that Project No. 2 was an intelligence support centre. In the beginning of 2006 the officer received an order from M that a cargo had to be delivered to Palanga Airport. The officer went together with V and N. They escorted the partners and drove several times to Palanga and back. Some vehicles approached the aircraft, there was no inspection carried out by the SGPS or the customs. They drove loaded with the cargo and returned unloaded. Witness P 338. On 1 April 2010, P, who held a post in the Intelligence Services at the time of the relevant events into the circumstances of which the pre-trial investigation was initiated, was questioned. In 2002-2003 M told him that the representatives of the partners came and proposed to organise a joint operation, to establish premises in Lithuania for the protection of secret collaborators. The officer M was asked to inform him when a particular operation as regards the use of the premises was to be launched. However, in the end it did not take place. M said that the partners most likely abandoned the project. The premises were later used for the SSD needs [the officer was referring to Project No. 1]. During the meetings held with the representatives of the partners, the idea was raised as regards the establishment of an integrated centre in which the SSD officers would be trained and joint operations with partners would be carried out. A was responsible for the support received for Project No. 1, in the form of equipment or by other means. The officer did not know about any requests to establish a prison. The officer offered a purely theoretical consideration that in 2003 there might have been requests for assistance in the fight against terrorism and acceptance of detainees, but it was purely theoretical. Witness Q 339. On 4 March 2010, Q, who held a leading post in the Intelligence Services at the time of the relevant events into the circumstances of which the pre-trial investigation was initiated, was questioned. He participated in looking for the premises of Project No. 1. Witness R 340. On 30 March 2010, R, who held a post in the Intelligence Services at the time of the relevant events into the circumstances of which the pre ‑ trial investigation was initiated, was questioned. The officer never visited the premises of Project No. 1, which were referred to in the questions asked. The premises were established for the extradition of secret collaborators. However, he was told that no prison existed. The Training Centre was situated in Project No. 2, which he visited in 2008. M mentioned to the officer R that the Training Centre was built in a joint project with the partners. R testified that he had never been to the premises of Project No. 1, about which he was questioned. However, he noted that the premises were arranged for the extradition of secret collaborators. An officer T also noted that he had heard of the centre for the transfer of secret collaborators. An officer S, who held a leading office, knew nothing about the repair of the auxiliary premises of Project No. 1, its aims or funding resources. Only later did he learn that the premises had been established for the operation, which either ended or never took place. Witness S 341. On 18 March 2010, S, who held a post in the Intelligence Services at the time of the relevant events into the circumstances of which the pre-trial investigation was initiated, was questioned. The officer was not aware of the repairs carried out, its purpose or the financing sources of the auxiliary premises situated in Project No. 1. He later found out that they were preparing for an operation, which either ended or did not take place. The SSD had been obliged to develop relations with the foreign partners in compliance with the Resolution of 2002. There was a need to communicate with more experienced partners, to learn from their experience and benefit from such cooperation. During this period it was decided to establish an intelligence support centre, which would be used in preparation for operations and at the same time for the training of SSD employees. M was in charge of the said sphere, thus S himself did not have any further information. The officer was informed orally about the development in cooperation with the partners as regards the regional intelligence centre. Around May 2004 M was informed that the building had been acquired. M told that him that the partners had covered all the expenses. All information about the centre was provided orally; no documents were provided. There were all sorts of talks, but nothing about terrorists, no enquiries and so on. Project No. 2 was established at the beginning of 2005. The officer went to inspect the premises, but there were no areas suitable for detention; there were recreation areas and administrative offices. The building was used minimally as the partners were slow to take any decision as regards the intelligence centre. Subsequently an agreement with the partners was reached as regards the transfer of the building to the SSD. There were only considerations as regards detention of terrorists, and no requests as regards the detention of persons were received; in theory it was only discussed with the leading officials, but they did not approve. M told him that the requests were received from the partners to escort cargo. The officer was told that they needed to coordinate it with the airport and the SGPS, thus, specific letters had to be drafted. The officer himself had no information about aircraft landing with terrorists. Witness T 1. Questioning on 2 March 2010 342. On 2 March 2010, T, who held a post in Intelligence at the time of the relevant events into the circumstances of which the pre-trial investigation was initiated, was questioned. The officer looked for premises where safe facilities could be established for the extradition of secret collaborators. However, all the premises were inadequate. D suggested where it would be possible to arrange them and the premises were arranged in Project No. 1. 2. Questioning on 16 March 2010 343. On 16 March 2010, T was questioned again. The officer noted that they had been looking for premises for the centre to be used for the transfer of the secret collaborators. The officer never escorted any cargo and did not know anything about Project No. 2. An Intelligence Service officer U noted that he looked for premises together with T. In compliance with the instructions given by an officer, D, in 2002 the premises were necessary for temporary accommodation and protection of secret collaborators. U noted that while working at Project No. 1 he thought that the premises were to be arranged for the transfer of secret collaborators. Witness U 344. On 3 March 2010, U, who held a post in the Intelligence Services at the time of the relevant events into the circumstances of which the pre-trial investigation was initiated, was questioned. The officer carried out a task together with T. They looked for premises for temporary accommodation and protection of secret collaborators under the order of D of 2002. Witness U1 345. On 8 March 2010, U1, who held a post in the Intelligence Services at the time of the relevant events into the circumstances of which the pre ‑ trial investigation was initiated, was questioned. While working at Project No. 1, the officer thought that the premises were established for the transfer of secret collaborators. The officer considered that the premises in the city centre were unsuitable for the detention of persons. Witness V 346. On 5 March 2010, V, who held a post in the Intelligence Services at the time of the relevant events into the circumstances of which the pre-trial investigation was initiated, was questioned. The officer saw that the building of Project No. 1 was being repaired, but he had no connection to the said project. He had escorted other vehicles together with N in March 2006 to Palanga Airport. The officer arrived at the airport and the escorted vehicle drove to the aircraft. The vehicle that drove off was loaded with boxes of not less than 1 metre in length. They were carried by two persons. The officer could not remember the exact number of boxes, but there were not less than three of them. The unloading lasted for around 20-30 minutes. He entered the airport together with M and N, who were standing approximately 50 metres from the aircraft. The aircraft was not inspected. The officer escorted M and N back from Palanga together with O. The officer N told him that there was an operation taking place. The officer knew that prior to going to the airport one of the officers had written a letter to the airport in order for them to gain access to the airport. Witness X 347. On 5 March 2010, X, who held a post in the Intelligence Services at the time of the relevant events into the circumstances of which the pre-trial investigation was initiated, was questioned. The officer participated in arranging and implementing the repair works of the premises of Project No. 1. Witness Y 348. On 8 March 2010, Y, who held a post in the Intelligence Services at the time of the relevant events into the circumstances of which the pre-trial investigation was initiated, was questioned. The officer participated in repairing and arranging the premises of Project No. 1. The officer did not see any unauthorised persons visiting the premises. Witness Z 349. On 5 March 2010 Z, who held a post in the Intelligence Services at the time of the relevant events into the circumstances of which the pre-trial investigation was initiated, was questioned. The officer participated in arranging and implementing the repair works of the premises of Project No. 1. XI. OTHER DOCUMENTS AND EVIDENCE BEFORE THE COURT A. The 2011 CPT Report 350. Among other evidence available to the Court was the 2011 CPT Report on the CPT delegation ’ s visit to Lithuania that took place from 14 to 18 June 2010 and which involved inspections of various places of deprivation of liberty – police, prison and psychiatric establishments. As regards the alleged existence of the CIA secret detention facilities in Lithuania, the central issue for the delegation was to try to assess the effectiveness of the pre-trial investigation. However, the delegation considered that it should also visit “the two tailored facilities” that had been identified in the parliamentary inquiry as “Project No. 1” and “Project No. 2”. The CPT made the following findings of fact. 351. As regards the background of the CPT ’ s visit, the 2011 CPT Report read: “64. In August 2009, reports appeared in the media that secret detention facilities for ‘ high value ’ terrorist suspects, operated by the Central Intelligence Agency (CIA) of the United States, had existed in Lithuania until the end of 2005. According to these reports, as many as eight persons were held in those facilities for more than a year. The sources of this information were said to be former CIA officials directly involved with or briefed on a programme of that Agency to detain and interrogate suspected terrorists at sites abroad. Further, it was affirmed that CIA planes made repeated flights into Lithuania during the period in question. On 25 August 2009, the President of Lithuania announced that the above-mentioned reports would be investigated. They were subsequently the subject of an investigation (started in November) by the National Security and Defence Committee of the Lithuanian Parliament. The findings of that Committee were endorsed by the Lithuanian Parliament on 19 January 2010, and a pre-trial investigation was launched on 22 January by the Prosecutor General ’ s Office. That investigation was still underway at the time of the CPT ’ s visit in June 2010. 65. In recent years there have been many allegations of secret detention of terror as well as of the related phenomenon of unlawful inter-State transfers of such persons. And on 6 September 2006, the President of the United States publicly acknowledged that the CIA had been holding and questioning, in secret locations overseas, a number of persons suspected of involvement in acts of terrorism. The possible implication of European countries in the above-mentioned practices has been examined within the framework of the Council of Europe and the European Union, and reports from both the Council ’ s Parliamentary Assembly and the European Parliament have affirmed that there has been collusion by certain of those countries. 66. As the CPT emphasised in its 17th General Report, secret detention can certainly be considered to amount in itself to a form of ill-treatment, both for the person detained and for members of his or her family. Further, the removal of fundamental safeguards which secret detention entails – the lack of judicial control or of any other form of oversight by an external authority and the absence of guarantees such as access to a lawyer – inevitably heightens the risk of resort to ill-treatment. The interrogation techniques applied in the CIA-run overseas detention facilities have certainly led to violations of the prohibition of torture and inhuman or degrading treatment. Any doubts that might have existed on this subject were removed by the publication on 24 August 2009 of a Special Review of CIA counterterrorism detention and interrogation activities, dated 7 May 2004 and covering the period September 2001 to October 2003, carried out by the Agency ’ s own Inspector General. Despite being extensively censored, the published version of the Special Review makes clear the brutality of the methods that were being used when interrogating terrorist suspects at sites abroad. 67. It was against this backdrop that the CPT ’ s delegation examined the question of the alleged existence of secret detention facilities in Lithuania. The delegation had talks with the Chairman of the Parliament ’ s Committee on National Security and Defence about the findings from the Committee ’ s investigation into this matter, and met members of the Prosecutor General ’ s Office entrusted with the pre-trial investigation which was underway. The central issue for the delegation was to try to assess the effectiveness of the pre-trial investigation. However, for the record, the delegation considered that it should also visit the two tailored facilities that had been identified in the Parliamentary Committee ’ s report when referring to partnership co-operation Projects Nos. 1 and 2.” 352. As regards the inspection of the premises of “Project No. 1” and “Project No. 2”, the report read: “68. The facilities of Project No. 1 consisted of a small, single-storey, detached building located in a residential area in the centre of Vilnius. According to the Parliamentary Committee ’ s report, ‘ facilities suitable for holding detainees were equipped, taking account of the requests and conditions set out by the partners ... however, according to the data available to the Committee, the premises were not used for that purpose ’. The facilities of Project No. 2 were located in a small locality situated some 20 kilometres outside Vilnius. Far larger than those previously mentioned, the facilities of this project consisted of two buildings (respectively with a brown and a red roof) which were connected and divided into four distinct sectors. As regards the red-roofed building, the layout of the premises resembled a large metal container enclosed within a surrounding external structure. Two parts of this building (a fitness room and a technical area) contained apparatus, machinery and spare parts of US origin as well as instructions and notices written in English. A Lithuanian official accompanying the delegation said that this equipment and written material had been left behind by the previous occupants. According to the Parliamentary Committee ’ s report, ‘ the progress of works [to equip these facilities] were ensured by the partners themselves ... The persons who gave testimony to the Committee deny any preconditions for and possibilities of holding and interrogating detainees at the facilities of Project No. 2, however, the layout of the building, its enclosed nature and protection of the perimeter as well as fragmented presence of the SSD [State Security Department] staff in the premises allowed for the performance of actions by officers of the partners without the control of the SSD and use of the infrastructure at their discretion ’. The CPT shall refrain from providing a detailed description of the above-mentioned facilities. Suffice it to say that when visited by the delegation, the premises did not contain anything that was highly suggestive of a context of detention; at the same time, both of the facilities could be adapted for detention purposes with relatively little effort.” 353. As regards the effectiveness of the criminal investigation carried out in Lithuania the report read, in so far as relevant: “70. As already indicated, the allegations of secret detention facilities in Lithuania that surfaced in August 2009 led to the setting up of a Parliamentary investigation in November 2009, the findings of which in turn resulted in the launching of a pre-trial investigation by the Prosecutor General ’ s Office in January 2010. It can first be asked whether the Prosecutor General ’ s Office displayed the necessary promptitude when the reports of secret detention facilities appeared in August 2009. Admittedly, it was a question of allegations made in the media. However, those allegations had to be seen in the context of certain undisputable facts that were by that time in the public domain, namely that the CIA had been holding and questioning, in secret locations overseas, a number of suspected terrorists and that the persons concerned had been subjected to ill-treatment (see paragraphs 65 and 66). In addition, there was a growing body of evidence, emanating from reports drawn up within the framework of the Council of Europe as well as other bodies, that some of the CIA facilities concerned might have been located in European countries. Against this background, it might be argued that the Prosecutor General ’ s Office should itself have taken the initiative and launched an investigation when the issue of the possible existence of secret detention facilities in Lithuania first came to light in the summer of 2009. 71 The question also arises whether the pre-trial investigation that was initiated on 22 January 2010 is sufficiently wide in scope to qualify as comprehensive. The investigation relates to a possible abuse of official position as set out in Article 228, paragraph 1, of the Criminal Code. Certainly, the uncovering of evidence indicative of a possible abuse of official position by certain Lithuanian civil servants was an important outcome of the Parliamentary investigation; however, it was not the only outcome. According to the data collected by the Parliamentary Committee, aircraft which official investigations had linked to the transportation of CIA detainees repeatedly crossed Lithuanian airspace during the period 2002 to 2005 and did land in Lithuania during that period. Further, although the Committee failed to establish whether CIA detainees were brought into/out of Lithuanian territory, it concluded that the conditions for such transportation did exist. The Committee also ‘ established ’ that the Lithuanian State Security Department had received a request from the partners to equip facilities in Lithuania suitable for holding detainees. And, although reaching the conclusion that the facilities of Project No. 1 were ultimately not used for detention purposes, the Committee explicitly refrained from ruling out such a possibility as regards the facilities of Project No. 2 (see paragraph 68). When the delegation raised the issue of the scope of the pre-trial investigation with members of the Prosecutor General ’ s Office, they replied that ‘ facts ’ were needed to launch a criminal investigation, not ‘ assumptions ’; at the same time, they emphasised that if evidence of other criminal acts did come to light during the investigation, its scope could be broadened accordingly. For its part, the CPT considers that when the above-mentioned findings of the Parliamentary Committee are combined with the other elements identified in paragraph 70, it becomes clear that it would have been more appropriate for the scope of the pre-trial investigation to have expressly covered, as from the outset, the possible unlawful detention of persons (and their possible ill-treatment) on Lithuanian territory. 72. During its meeting with members of the Prosecutor General ’ s Office, the CPT ’ s delegation sought to ascertain whether the pre-trial investigation complied with the criterion of thoroughness. This was followed up after the visit by a written request from the CPT ’ s President for a chronological account of all steps taken as from the opening of the pre-trial investigation (persons from whom evidence had been taken, whether orally or in writing; documents obtained and examined; on-site inspections carried out; material seized; etc.); information was also sought on whether the assistance of authorities outside Lithuania (in particular of the United States and NATO) had been requested and, if so, whether that assistance had been forthcoming. The delegation did not receive the specific information it requested, either during the above-mentioned meeting or from the Lithuanian authorities ’ response of 10 September 2010. The Committee has been told that: persons related to the subject of the investigation who had meaningful information have been questioned; documents that were meaningful to the investigation have been received; the premises designated as Projects Nos. 1 and 2 have been inspected; no obstacles have been encountered in the conduct of the investigation. It is affirmed that more specific information cannot be provided as the major part of the data gathered during the investigation constitutes a state or service secret. The CPT is not convinced that all the information that could have been provided to the Committee about the conduct of the investigation has been forthcoming. Certainly, given the paucity of the information currently available, it remains an open question whether the pre-trial investigation meets the criterion of thoroughness. 73. The pre-trial investigation has not yet been finalised. According to the Prosecutor General ’ s Office, the collected data is still being analysed and decisions remain to be made as regards the necessity for additional investigative acts. The prosecutors met hoped that the investigation would be completed by the end of 2010. Once it has been completed, the CPT trusts that the fullest possible information will be made public about both the methodology and the findings of the pre-trial investigation. Any restrictions on access to information on grounds of state or service secrecy should be kept to the absolute minimum. This will enable a proper assessment of the overall effectiveness of the investigation to be made and ensure that there is sufficient public scrutiny of its results. The CPT requests that the findings of the pre-trial investigation be forwarded to the Committee as soon as they become available. 74. Finally, the CPT has been informed that, on 20 September 2010, the UK-based non-governmental organisation REPRIEVE wrote to the Prosecutor General of Lithuania on the subject of a named person who is currently being held by the US authorities in the detention facilities at Guantánamo Bay. The organisation affirms that it has received information from ‘ the most credible sources inside the United States ’ that this person ‘ was held in a secret CIA prison in Lithuania ’ during the period 2004 to 2006, and requests that this matter be investigated. The CPT would like to be informed of the action taken by the Prosecutor General ’ s Office in the light of the above-mentioned letter. ” 354. The 2011 CPT Report listed the following comments and requests for information in respect of the alleged existence of the CIA secret detention facilities: “ Alleged existence of secret detention facilities in Lithuania comments - the CPT trusts that the fullest possible information will be made public about both the methodology and the findings of the pre-trial investigation launched by the Prosecutor General ’ s Office regarding the allegations of secret detention facilities in Lithuania. Any restrictions on access to information on grounds of state or service secrecy should be kept to the absolute minimum (paragraph 73). requests for information - the findings of the pre-trial investigation launched by the Prosecutor General ’ s Office regarding the allegations of secret detention facilities in Lithuania, as soon as they become available (paragraph 73); - the action taken by the Prosecutor General ’ s Office in the light of the letter sent to the Prosecutor General of Lithuania by the UK-based non-governmental organisation REPRIEVE on 20 September 2010 (paragraph 74).” B. The Lithuanian Government ’ s Response to the 2011 CPT Report 355. On 19 May 2011 the Lithuanian Government issued its response to the 2011 CPT Report and requested its publication. The Government in essence summed up the prosecutor ’ s conclusions of 14 January 2011 (see paragraphs 191-199 above). The passages relating to the alleged existence of secret detention facilities in Lithuania read, in so far as relevant, as follows. 356. As regards the CPT ’ s comment “ the CPT trusts that the fullest possible information will be made public about both the methodology and the findings of the pre-trial investigation launched by the Prosecutor General ’ s Office regarding the allegations of secret detention facilities in Lithuania. Any restrictions on access to information on grounds of state or service secrecy should be kept to the absolute minimum ”, the Government stated: “Most data received during a pre-trial investigation are subject to classified information protection, as such data constitute a state or official secret bearing relevant classification markings. Whereas pre-trial investigation material contains information that constitutes a state and official secret, upon terminating a pre-trial investigation all pre-trial investigation material shall be transferred to the Information Security and Operational Control Division of the Prosecutor General ’ s Office of the Republic of Lithuania for storage.” 357. As regards the CPT ’ s request for “ the findings of the pre-trial investigation launched by the Prosecutor General ’ s Office regarding the allegations of secret detention facilities in Lithuania, as soon as they become available ”, the Government stated: (1) The arrival and departure of aircraft of the Central Intelligence Agency of the United States (hereinafter “the U.S. CIA”) to/from the Republic of Lithuania, U.S. officers ’ access to the aircraft and aircraft cargo and passenger inspections. The arrival and departure of U.S. CIA-related aircraft to/from the Republic of Lithuania was established during the pre-trial investigation. However, the procedure set forth in the Law on Intelligence (Official Gazette Valstybes Zinios, 2000, No. 64 ‑ 1931) was observed in all cases. The competent officers of the airport and the State Border Guard Service (hereinafter the ‘ SBGS ’ ) were informed in writing (or orally) in advance about aircraft and cargo checks planned by the State Security Department (hereinafter “the SSD”). This is confirmed by case documents presented by the SSD and questioned witnesses, namely airport employees, SBGS and SSD officers. No data on illegal transportation of any persons by the aforementioned aircraft was received during the pre-trial investigation. On the contrary, the persons questioned during the investigation either categorically denied such circumstances or said they had no information about it. Therefore, in terms of criminal law, the allegation that persons detained by the CIA were transported by U.S. CIA-related aircraft or brought to/from the Republic of Lithuania is just an assumption not supported by factual data, which is equivalent to an assumption about transportation of any other persons or items in the civil circulation or prohibited items. In the absence of factual data to substantiate this assumption, prosecution cannot be initiated or criminal proceedings cannot be continued at this point. Therefore, it should be stated that by seeking unhindered access to landed aircraft in airport areas and carrying out related actions, SSD officers acted lawfully, did not abuse their official position and did not exceed their powers, and therefore did not commit the criminal act provided for in Article 228 of the CC. Whereas there are no data on illegal transportation of persons by U.S. CIA ‑ related aircraft, it should be stated that there is no reason to address the issue of criminal liability under Article 291 of the CC (Illegal crossing of the state border) and Article 292 (Unlawful transportation of persons across the state border). (2) Implementation of Projects No. 1 and No. 2. It was established during the pre-trial investigation that the SSD and the U.S. CIA implemented Project No. 1 in 2002 and Project No. 2 in 2004. The implementation of both projects is related to building reconstruction and equipment. Discussing the arguments for the termination of the pre-trial investigation in the section regarding the implementation of Project No. 1, it is necessary to draw attention to the term of validity of criminal laws and the statute of limitations as regards criminal liability. .... However, despite this procedural obstacle to the pre-trial investigation, it should be stated that no unambiguous data showing that during the implementation of Project No. 1 the premises had been prepared for keeping the person detained were received during the pre-trial investigation. The received factual data on the specific features of equipment of the premises (which allow to make an assumption about the possibility of keeping the detainee therein) assessed in connection with the data justifying another purpose of the premises, taking into account the fact that there are no data on any actual transportation to and keeping of detained persons on these premises, do not provide a sufficient reason for formulating a notification of a suspicion of abuse to a person and thus initiating prosecution of the person. Regarding Project No. 2, no data on a connection between it and the keeping of detainees were received during the pre-trial investigation. On the contrary, the factual data received during the pre-trial investigation and all related witnesses who have been questioned justify another purpose and use of the building. The real purpose of the premises cannot be disclosed as it constitutes a state secret. It must be stated that the criminal act provided for in Article 228 of the CC was not committed during the implementation of Projects No. l and No. 2 by the SSD and the U.S. CIA. It should be noted that there is no reason to address the issue of criminal liability under Article 100 of the CC (Treatment of persons prohibited under international law) and Article 146 of the CC (Unlawful deprivation of liberty) because, as already mentioned before, no data on illegal transportation of persons, their detention or another illegal restriction or deprivation of liberty were received during the pre-trial investigation. Discussing the assumption about the possibility of keeping the person detained on the premises of Project No. 1, as regards the impossibility of classifying the act under Article 100 of the CC, it must be pointed out that in the absence of persons detained, arrested or otherwise deprived of liberty on the aforementioned premises, a legally significant feature necessary for the classification of the act under Article 100 of the CC – ‘ denial ’ of deprivation of liberty - cannot be stated either. (3) Provision of information on the objectives and content of ongoing Projects No. 1 and No. 2 by SSD management to top state leaders. The legal framework of international cooperation of the SSD is set forth in the Law on Intelligence. Legal acts do not directly require to ‘ approve ’ the directions (tasks) of international cooperation of the SSD at any political level. They have been determined by the general need for international cooperation and direct SSD contacts with the special services of other countries. During the implementation of Projects No. 1 and No. 2 on SSD cooperation with the U.S. CIA, the then SSD leadership failed to inform any top official of the country about the objectives and content of these projects. Upon stating that laws do not establish an obligation to provide such information, and taking into account the fact that, in view of its scope, the provision of such information can and must be performed according to the ‘ need-to-know ’ principle, it must be stated that there are no signs of a criminal act - abuse - at this point either. Pursuant to Article 166 of the CCP, a pre-trial investigation shall be started (1) upon receiving a complaint, statement or report on an offence; (2) if the prosecutor or the pre-trial investigation officer discovers signs of a criminal act. In the case in question, the decision to start a pre-trial investigation into abuse under Article 228( 1) of the CC was taken by the chief prosecutor of the Organised Crime and Corruption Investigation Department of the Prosecutor General ’ s Office who drew up an official report. There was the only ground for the pre-trial investigation, namely the circumstances indicated in the findings of a parliamentary investigation carried out by the National Security and Defence Committee of the Parliament of the Republic of Lithuania into possible transportation and keeping of persons detained by the U.S. CIA in the territory of the Republic of Lithuania. Summarising the data collected during the pre-trial investigation, it must be stated that although all necessary and sufficient measures were used to collect factual data on suspected criminal acts, no objective data confirming the fact of abuse (or another criminal act) were collected during the pre-trial investigation, and the total factual data collected do not suffice for stating that the criminal acts had been committed. Therefore, it is not possible to state the commission of the criminal acts at the moment. On the contrary, such assumption-based information, which served as a ground for launching the pre-trial investigation under Article 228(1) of the CC, did not prove to be true and was denied. Pursuant to Article 3(1)(1) of the CCP, the criminal process shall not be initiated or, if initiated, shall be discontinued if no act having the signs of a crime or a criminal offence has been committed. Therefore, the pre-trial investigation was terminated as no act having the signs of a crime or a criminal offence had been committed. It has already been stated that the factual data on cooperation between the SSD and the U.S. CIA in intelligence activities contained in the pre-trial investigation material showed that no criminal act had been committed when providing information on these activities to top state leaders during the implementation of Projects No. 1 and No. 2. But these data are fully sufficient to state that there were potential signs of a disciplinary offence in the actions of SSD leaders M.L., A.P. and D.D. who coordinated cooperation between the SSD and the U.S. CIA and participated in it, SSD leaders who were responsible for building reconstruction (Projects No. 1 and No. 2), initiated and performed this reconstruction, and other officers. However, the aforementioned SSD leaders do not work for the SSD any more, and disciplinary proceedings cannot be initiated against them. In addition under Article 34(2) of the SSD Statute, no disciplinary punishment can he imposed one year from the date of commission of the offence. Therefore, even if there were data on a possible disciplinary offence, the decision provided for in Article 214(6) of the CCP to hand over material when terminating a pre-trial investigation for addressing the issue of disciplinary liability cannot be taken.” 358. As regards the CPT ’ s request for information on “ the action taken by the Prosecutor General ’ s Office in the light of the letter sent to the Prosecutor General of Lithuania by the UK-based non-governmental organisation REPRIEVE on 20 September 2010 ”, the Government stated: “The aforementioned statement alleged that U.S. CIA officers transported H to the Republic of Lithuania, kept him in the territory of the Republic of Lithuania and transported him from the Republic of Lithuania in the period from the spring of 2004 to September 2006. It was stated in the decision to terminate the pre-trial investigation that REPRIEVE had not provided any facts proving this, had not indicated and disclosed the source of information, and, as already mentioned before, no data on illegal transportation of any persons, including H, by the U.S. CIA to/from the Republic of Lithuania were received during the pre-trial investigation.” C. Mr Fava ’ s testimony regarding the “informal transatlantic meeting” given in Al Nashiri v. Poland and Husayn (Abu Zubaydah) v. Poland 359. In Al Nashiri and Husayn (Abu Zubaydah) Mr Fava was heard in as expert in his capacity as the Rapporteur of the TDIP at the fact finding hearing (see Al Nashiri v. Poland, cited above, §§ 42 and 305-318); and Husayn (Abu Zubaydah) v. Poland, cited above, §§ 42 and 299-304). He responded, inter alia, to the Court ’ s questions concerning records of the informal transatlantic meeting of European Union and North Atlantic Treaty Organisation foreign ministers, including Condoleezza Rice, of 7 December 2005, “confirming that Member State had knowledge of the programme of extraordinary rendition”, as referred to in paragraph “L” of the 2007 EP Resolution (see Husayn (Abu Zubaydah), cited above, § 300; and Al Nashiri v. Poland, cited above, § 306; see also paragraphs 28 5 -28 6 above). He testified as follows. As regards the checking of the credibility of the confidential source from which the records – to which he referred to as “the debriefing” – had been received: “Yes, the reliability was checked, it was a confidential source coming from the offices of the European Union, in particular from the Commission. In Washington, when we received the debriefing of the [Washington] meeting, we checked that the latter did indeed correspond to the real content of the meeting and that same opinion was shared by the Chair of the Temporary Committee and in fact this document was acquired as one of the fundamental papers of the final report which I proposed and that the Temporary Committee has approved and that the Parliament subsequently approved.” As regards the nature of the document: “[A] debriefing. Some meetings, when there is a request – in that case the request had been put forward by the American Department of State – are not minuted; however, in any case a document which incorporates with sufficient details the course of the discussion is drawn up, even if this is not then formally published in the records of the meeting. In this case it was asked not to minute [the meeting], but it was asked to write this document, following the practice, and it is this document, the debriefing, that has been then provided to us.” As regards the topic of the transatlantic meeting: “Extraordinary renditions. The American Secretary of State, Condoleezza Rice, met the ministers and the topic of discussion was what had been discussed in those months by the general public in America and Europe – I believe our Temporary Committee had already been set up – it was a particularly burning issue and there was the concern on the part of several Governments about the consequences that these extrajudicial activities in the fight against terrorism, using extraordinary renditions as a practice, could create problems to the various Governments in respect of the public opinion and in respect of the parliamentary inquiries, some of which had already been undertaken at the time. Therefore, some Governments were asking whether what was known corresponded to the truth and whether all this was not contrary to the international conventions, beginning from the Geneva Convention onwards. In that case, the reply – from the debriefing we received – from Madame Rice, was that that operational choice to counteract terrorism was necessary because the atypical nature of the conflict, with a subject that was not a state but a group of terrorists prevented the use in full of the international conventions which up till then had served mainly to regulate traditional conflicts. This is the thesis which also the legal counsellor of Condoleezza Rice put to us in Washington when we had a hearing and it was explained to us that they felt that they could not apply the Geneva Convention and that they thought that the extraordinary renditions were therefore a necessary and useful practice even for European Governments, because they placed European countries, European Governments [and] the European Community in a position to defend themselves from the threat of terrorism. I also remember – of course we are talking about events of seven years ago – that from the said debriefing there emerged quite an animated discussion among the European Governments[:] between those who felt that these practices should be censored for obvious reasons linked to international law, and other Governments which felt on the contrary that they should be supported. ...” As regards the content of the document: “[T]his document indicated precisely the interventions with the names of the ministers of member states of the European Union. That document was a fairly clear picture of how the discussion had proceeded, it was not just a summary of the various topics dealt with but the document actually recalled who said what. In fact, let ’ s say, the discussion heated up also because of the different positions taken, [which positions] are reproduced quite faithfully in this document. Which member States had felt the need to raise doubts and objections to the practice of extraordinary renditions and which member States had felt on the contrary the need to support the thesis of Madame Rice. ... The discussion started because a few weeks before the fact had been divulged by the American press, I think it was an article of the Washington Post which was then taken up by ABC, ABC television, saying that there were secret places of detention in Europe. Extraordinary renditions were a fairly widespread practice in 2002 and 2003 and that in Europe there were at least two places of secret detention. Afterwards President Bush, in a statement, confirmed that there had been some detainees, members of Al Qaeda, who had been transferred to Guantánamo after having gone through some places of detention under the CIA ’ s control, thereby somehow justifying and confirming what had been said by the American journalists at the time. The meeting with Condoleezza Rice and the European ministers, as far as I remember, took place immediately after these revelations of the American press and indeed this was one of the reasons why our Temporary Committee was set up.” D. Documents concerning the on-site inspection of Project No. 1 and Project No. 2 carried out by the investigating prosecutor 360. The Government produced copies of records made in the course of the on-site inspections of Project No. 1 and Project No. 2 which were carried out by the investigating prosecutor on, respectively, 17 March and 4 June 2010 (see also paragraphs 18 6 and 1 90 above). The documents were submitted in the Lithuanian language and with an English translation [6]. 1. Record of on-site inspection of Project No. 1 of 17 March 2010. 361. The English translation of the document reads, in so far as relevant, as follows: “Translation into English TOP SECRET DECLASSIFIED [Written by hand] RECORD ON INSPECTION OF PREMISES 17 March 2010 Vilnius The inspection commenced at [Written by hand] 2.15 p.m., completed at [Written by hand] 3.00 p.m. The Prosecutor of the Investigation Department of Organised Crime and Corruption of the Prosecutor General ’ s Office of the Republic of Lithuania [full name], pursuant to Articles 166, 167, 205, 207 of the Code of Criminal Procedure, arrived at [Written by hand] the territory located at Z. Sierakausko str. 25, Vilnius and pursuant to Articles 92, 179 and 207 of the Code of Criminal Procedure performed the inspection of objects relevant to the investigation of criminal acts and recorded the course and results of this investigative action. ... The Prosecutor General ’ s Office ’ s Control Section prosecutor [full name] has been participating in the course of the investigative action during the recording of the acts and results thereof ... Objects inspected: [written by hand] territory located at Z. Sierakausko str. 25, Vilnius and auxiliary building therein. During inspection it was established: [written by hand] the territory, address Z. Sierakausko str. 25, Vilnius is located next to Z. Sierakausko street. It is a brick wall fenced from the street side and a wired fence on the other side, a fenced territory of irregular shape. Along Z. Sierakausko Street the territory is fenced with a brick coloured wall, there are multi-storey dwelling houses surrounding the territory. There is a metal gate at the entrance to the territory. There is also a metal wicket. At the entrance, there is a parking lot. On the left side of the parking a bigger brick building is located. It might be called the main building. On the right (right corner of the territory), a smaller building, which might be called the auxiliary building is located. The auxiliary one is a brick walled, yellow coloured, single-floor building. The distance between the building wall and a fence along Z. Sierakausko str. is 5.7 m. The distance between another (back) side of the building and a fence perpendicular to Z. Sierakausko str. is 3.55 m. The auxiliary building is oblong, flat roofed. The length of the building is 17.50 m, width 6.30 m. The middle part of the building seems to be sticking out if observed from the front side of it. There are two lifting white coloured gates in this part of the building - entrances to garages. Windows of the building are white, plastic. The windows of the room marked as No. 2 in the scheme are equipped with metal lifting security levers. On both sides of the building there are entrance doors, i.e. plastic white doors. Windows and doors as well as rooms indicated in the scheme annexed to the record. On the facade of the building as well as in the territory, there are CCTVs. The inspection of the premises is commenced by entering the doors, which are located in the furthermost part of the building if the building is observed from the street. Inside walls of the building brown rooms, are bricked, plastered, coloured in yellow. All inside doors are made of plywood, light coloured, equipped with an ordinary lock. Floors are tiled in the rooms, corridors, sanitary rooms, kitchen, garages. Premises marked as No. 1 and No. 2 are in linoleum flooring. Ceilings in the rooms, corridors, kitchen, sanitary rooms, are covered in plastic panelling. Ceilings of premises No. 1 and No. 2 are plastered, coloured in white. Upon entering the aforementioned doors the entrance-hall No. 2, size 1.45 x 1.07 is located. On the right side the entrance door to the room No. 2 is located. The size of this room is 4.10 x 3.06 m. height 3.61 m. The walls of these premises are plastered, coloured in yellow. Paint is peeling in some lower parts of the wall, possibly due to humidity. There are no other special features of the walls visually notable. There is a table in the room as well as used computer parts on the table and floors. There are two windows in the room, width 1.40 m, height 52 cm. Further from the entrance-hall there is a narrow corridor, width 80 cm. On the left side of the corridor sanitary room No. 2 is located. It consists of a lavatory and a sink. At the end of the corridor, there are doors to the garage No. 2. The garage is located over the entire area of the building, and along the room there is a pit, which is covered with planks at the time of inspection. In the garage, there are different boxes, old items, bicycles, etc. There is an electric heating boiler on the wall in the garage. The heating system of the building consists of radiators, which are located in the entire building. The size of the garage No. 2 is 7.05 x 3.65 m. There are doors from the garage to the kitchen. This room is 3.20 x 3.00 in size. There is one window in the room, it is l.33 width. Along the window, there is a table with chairs. The kitchen furniture along the wall consisting of catchall, electric stove, rack as well as a sink, equips the kitchen. By the wall, opposite to the wall with the window, a ‘ Sharp ’ refrigerator is located. There is a shower cubicle in the corner. Further, the entrance to the garage No. 1 and to room No. 1 from the kitchen is located. The size of the garage No. 1 is 3.85 x 3.22 m. There is a little tractor, tyres, piano, and a rack with different items located in the garage. The size of the room No. 1 is 4.12 x 3.75 m. There are two windows in the room width 1.40 m. An oval table with 6 chairs located in the room. Another table is located in the corner of the room, close to the entrance-hall. There is a plastic grey relay box 2 x 20 size, 10 cm depth on the wall, which is the closest to Z. Sierakausko street. There are cable inputs equipped in it; the cables directed to the room are not connected. The box is installed 100 cm distance from the sidewall border of the entrance-hall. From this room one enters the entrance-hall No. 1, of 2.86 x 1.18 m in size. From the entrance-hall one also enters the sanitary room No. 1, which is equipped with a lavatory and sink. Both sanitary rooms, as well as the kitchen walls, are partly covered in tiles. In the entrance-hall, the exit from the building is accessible.” 2. Record of the on-site inspection of Project No. 2 of 4 June 2010 362. The English translation of the document reads, in so far as relevant, as follows: “English translation RECORD ON INSPECTION OF BUILDING AND TERRITORY LOCATED AT ANTAVILIŲ STR. 27A VILNIUS 4 June 2010 Vilnius The inspection commenced at 9.20 a.m., completed at 10.35 a.m. Vilnius Regional Prosecutor ’ s Office prosecutor of the Investigation Department of Organised Crime and Corruption [full name], arrived at the building and territory located at Antaviliai str. [27] A, Vilnius following Articles 92, 179 and 207 of the Code of Criminal Procedure performed the inspection of the above-mentioned objects. ... Persons who participated during the inspection and who were present during the inspection activities: the Prosecutor ’ s General Office prosecutor of the Investigation Department of Organised Crime and Corruption [full name], the head of the board of the State Security Department [full name], the head of the Training Centre of the State Security Department [full name]. Weather conditions, lighting during inspection: daytime, fair weather with no sun, no rainfall. Established during inspection: The territory is fenced with a metal wire fence with no additional safety or lighting devices. Entrance to the territory through a metal wicket, equipped with an ordinary lock, locked by an ordinary key. Vehicles enter through the metal gate. There is a building within the territory consisting of two sections. Section 1 seems to be residential. It is a two-storey building with a mansard, second floor with balconies. Outside decoration made from crushed bricks and painted panelling. Section 2 is of hangar type, outside decoration is made from tin-plate. Premises equipped in both sections have numbers, premises include classrooms, working rooms, single and double residential rooms, kitchen and laundry rooms, leisure room (tables of a billiard, table tennis), library, storage rooms, WCs, garages, watchman room, closet, fitness room, shooting hall. Mansard is non-equipped; it is without thermal insulation as well. The perimeter of the building is monitored by CCTVs; none of the windows equipped with inside or outside window bars. There are no rooms designated for temporary detention or equipped with bars or in any other way adjusted for the forced deprivation of one ’ s liberty. [Written by hand] Note: the shooting hall is adapted merely for laser guns, not firearms. ... ” E. Resolution and Operational Action Plan of 25 July 2002 363. The Government produced copies of partly declassified documents, both dated 25 July 2002 and entitled, respectively, “Resolution to initiate the file of operation” (“2002 SSD Resolution”) and “Operational Action Plan” (“2002 SSD Action Plan”). Most parts of the documents are blackened. 364. An English translation of the 2002 SSD Resolution reads: “EXTRACT [the name of the addressee blackened] RESOLUTION no. 01-21-531 vs/02 To initiate [blackened] a file 25 July 2002 Vilnius city [three lines of the text blackened] in case [blackened] necessity to find and arrange premises [blackened] for the purpose of extradition (transfer) of working secret intelligence collaborators, also to ensure their protection and living conditions [the remaining part of text, some half page blackened].” 365. An English translation of the 2002 SSD Action Plan reads: “EXTRACT [blackened] file [blackened] [blackened] ACTION PLAN 25/07 2002 Vilnius [three lines of the text blackened] 1) to select premises and to equip them with necessary measures for the organisation of extradition of secret intelligence collaborators [blackened] 2) to organise the protection of secret intelligence collaborators, to provide them with essential living conditions. [the remaining text comprising some one page blackened]” F. Report on the incident of 6 October 2005 in Vilnius airport 366. The Government produced a copy of the report (“SBGS Report”) made by J.K., an officer and senior specialist of the SBGS, which related an incident that took place on 6 October 2005 when R.R., an officer of the SBGS had been refused access to the plane N787WH, which had made an unexpected landing in Vilnius airport. An English translation of the report provided by the Government [7] reads, in so far as relevant, as follows: “Translation into English Captain R[...]. C.[... ] Acting Chief of the Vilnius airport Border Checkpoint OFFICIAL REPORT REGARDING ACCIDENT AT AIRPORT BORDER CHECKPOINT 6/10/2005 VILNIUS On 5 October at 5.15 a.m. the unplanned plane from Antalya landed in Vilnius Airport BChP [Border Checkpoint]. The state border officer R.R[ ... ] exercising the guard ‘ Escort and inspection of aircraft ’ attempted to approach the mentioned aircraft and to perform actions according to his service instructions (write down board number, find out where the plane arrived from, what was the time of departure, were there any passengers), however when he was about 400 metres away from the aircraft he was stopped by the Aviation Security staff and was denied access to the aircraft. Outside there was low visibility (fog), but it was possible to discern that the Aviation Security staff were patrolling around the aircraft, and also that there were two patrol vehicles of the Aviation Security parked. The officer saw how the vehicle departed from the mentioned aircraft and left the territory of the airport BChP through the gates. I contacted the chief of the Shift of the Aviation Security, who explained to me that the SBGS commanders had been informed about the landing of this aircraft and the aviation security actions undertaken. When the mentioned aircraft had fuelled up, it departed from the Vilnius Airport BCHP at 6.05 a.m. Vilnius frontier district OD [Officer of the day] was informed about the above-mentioned incident.” G. Letter from former President of Lithuania Mr Adamkus to the CNSD of 26 November 2009 367. The Government produced a copy of the letter of 26 November 2009 written by Mr Valdas Adamkus, the President of the Republic of Lithuania and addressed to the CNSD in connection with the Seimas inquiry. An English translation of that letter produced by the Government reads [8], in so far as relevant, as follows: “Having been closely following the work of the parliamentary inquiry instituted by the Seimas National Security and Defence Committee (hereinafter - Committee) concerning the alleged transportation and confinement in the territory of the Republic of Lithuania of persons detained by the United States Central Intelligence Agency, I have decided immediately to inform the Committee about the events in Lithuania at the relevant time. I am confident that this would contribute to the objectivity of the investigation. I would like to remind [you] that on 29 March 2004 Lithuania became a member of NATO. When seeking membership in this organisation and especially when approaching the acceptance of our country into the alliance, very intense and active negotiations with many consultations and meetings took place. Therefore communication with the future and subsequently fellow partners, i.e. the NATO organisation and its member States, was very close and active. Particularly I would like to distinguish the cooperation with the strategic partner of Lithuania - the United States of America - whose support for Lithuania ’ s acceptance into NATO would be hard to overestimate. This communication was performed on many different levels, from delegations of heads of State to delegations of politicians, civil servants, specialists of national defence and many other spheres. Also the implementation of joint projects and operations in the sphere of defence and security in cooperation with partners was and still is very important. As the then head of State I was informed about the most important defence and security projects implemented in co-operation with some NATO partners as demonstrating examples of mutual trust and effective cooperation. The Committee should be familiar with this information. However, I have never been informed about the issue concerning CIA prisons which is currently under investigation and I learnt about it only from the media. When I was asked about this issue live on air on the Lithuanian Radio and during the Lithuanian Television programme ‘ Paskutinis klausimas ’ ( Last question ) I replied to the host that I had never heard of and had never been informed about the above-mentioned operations in the territory of the Republic of Lithuania. My replies were heard by Lithuanian people and the Chairman of the Seimas National Security and Defence Committee Arvydas Anušauskas who participated in the programme. Once again I state that I was not aware and I was not informed about the alleged existence of a prison, detentions and activity related to this. I am hoping that the National Security and Defence Committee of the Seimas of the Republic of Lithuania having examined disseminated information degrading the Lithuanian State shall publish the facts revealing the truth.” H. Letter from the Ministry of the Interior of 9 December 2009 368. The Government produced a letter from the Ministry of the Interior to the Chairman of the Seimas CNSD of 9 December 2009. The letter related, among other things, the incident of 6 October 2005. The Ministry also informed the Seimas that no internal investigation had been conducted in that respect in view of the fact that no breach of disciplinary rules had been established and that the SBGS had received a letter from the SSD informing them of the landing of N787WH and the measures that the SSD had intended to take in respect of the landing. The SSD ’ s letter of 5 October 2005 was received by the SBGS on 7 October 2005. I. Letter from Palanga airport of 15 March 2010 369. The Government submitted a copy of the Palanga airport ’ s letter to the Vilnius City District Prosecutor ’ s office of 15 March 2010 (“Palanga airport letter”). According to the letter, Palanga airport had not received any letter from the SSD concerning the “possible access of its staff to the airport and performance of any procedures in relation to the aircraft” in respect of the N787WH landing on 18 February 2005. The enclosed invoice stated that N787WH arrived from Bucharest en route to Copenhagen. It arrived at 8.09 p.m. and departed at 9.30 p.m. J. The Customs Department letter of 12 April 2010 370. The Government submitted a copy of a letter from the Customs Department under the Ministry of Finance to the to the Vilnius City District Prosecutor ’ s office, dated 12 April 2004, informing the prosecutor that N787WH, which had landed at Palanga airport on 18 February 2005 at 8.09 p.m. had not been recorded in the Aircraft Arrivals registration journal at the Palanga airport post of the Klaipeda Territorial Customs. Nor had any inspection been carried out in respect of N787WH when it had landed at Vilnius airport from Anatalya, Turkey on 6 October at 5.15 a.m. K. The SBGS letter of 27 April 2010 371. The Government produced a letter from the SBGS to the to the Vilnius City District Prosecutor ’ s office of 27 April 2010. An English translation [9] of the letter reads, in so far as relevant: “... Hereby we submit the requested documents and we would like to inform you that in the information system of the [SBGS ] the following data have been recorded: ... 5 US citizens arrived in the Republic of Lithuania when on 18 February 2005 the aircraft tail no. N787WH landed at Palanga airport: 1. [L.E.W.], doc. no. ... 2. [F.X.B.], doc. no. .. 3. [E.M.V.], doc. no. ... 4. [R.A.L.Z.], doc. no. ... 5. [J.S.], doc. no. ... We do not possess any other date with regard to persons who crossed the border following the arrival of the indicated aircraft. ... [I]t could be noted that when on 6 October 2005 at 5.15 a.m. the unplanned airplane from Antalya landed in Vilnius airport ... [Border Checkpoint] the State Border officer ... when about 400 metres away from the airplane was stopped by the Aviation Security staff ... and restricted access to the aircraft ... [T]here were two vehicles of the Aviation Security parked. The officer saw how the vehicle departed from the mentioned aircraft and left the territory of the Airport [Border Checkpoint] through the gates controlled by the Aviation Security staff. ... Afterwards the SBGS received a classified letter from the [SSD]. ... ” XII. EXTRACTS FROM TESTIMONY OF EXPERTS HEARD BY THE COURT 372. On 28 June 2016 the Court took evidence from Senator Marty, Mr J.G.S. and Mr Black (see also paragraphs 17-18 above). The extracts from their statements as reproduced below have been taken from the verbatim records of the fact-finding hearing. They are presented in the order in which evidence was taken. A. Presentation by Senator Marty and Mr J.G.S. “Distillation of available evidence, including flight data, in respect of Lithuania and the case of Abu Zubaydah ” 373. On 2 December 2013 Senator Marty and Mr J.G.S. gave a similar presentation before the Court in Al Nashiri v. Poland (cited above, §§ 311 ‑ 318). 374. Their oral presentation in the present case was recorded in its entirety and included in the verbatim record of the fact-finding hearing. The passages cited below have been taken from the verbatim record. 375. The aim of the presentation was explained by Mr J.G.S. as follows: “Madam President, Honourable Judges, representatives of the parties, I have had the privilege of addressing this Court on three prior occasions in respect of cases involving aspects of the CIA ’ s rendition, detention and interrogation programme as it has manifested itself on the territories of the Council of Europe. I am asked today to provide a distillation of available documentary evidence including flight data in respect of Lithuania and the applicant into these proceedings, Mr Abu Zubaydah. I would kindly request, however, that the Court and indeed the parties take note of my prior testimonies given in order that I do not repeat myself unduly in the course of this presentation. I would like to simply state that the abuses being discussed are part of a widespread and systematic practice intended at holding in secret and indefinitely persons suspected of terrorism, but never charged with any criminal offence – in some cases, and indeed in Mr Zubaydah ’ s case – for periods up to and over four years in length, during which a multiplicity of abusive techniques, euphemistically described as enhanced interrogation techniques, are practised on these individuals in violation of their personal integrity in the context of the conditions of confinement in which they are held.” This was followed by the presentation of a map showing a network of interconnected various locations, which was referred to as a “global spider ’ s web” in the 2006 and 2007 Marty Reports (see paragraphs 270-27 7 above; and see Husayn (Abu Zubaydah), cited above, § 306). 376. As regards the fact that Lithuania was not included among the countries suspected of hosting CIA black sites in the Marty Inquiry, Senator Marty stated as follows: “Madam President, Judges, Ladies and Gentlemen, a few words by way of introduction. First, why is there no mention made of Lithuania in the 2006 and 2007 reports? There are two reasons why. First, at the time, we had very few resources available, we focused on Poland and Romania. The other reason is that we spent a lot of energy establishing the spider web of aircraft movements. During that short time we spent a lot of energy collecting flight data, which was really a lot of work. And we invested a lot for the future because, even years later, such data helped us to develop cases. I speak for the first time as rapporteur for Lithuania. In another report, that is, the [2011] Report on abuse of State secrecy I did not really go into secret prisons at that time. What I talked about was the use of State secrecy which had been invoked. It was invoked then even in respect of the inquiries of the Committee against Torture – the CPT notwithstanding the fact that the CPT was bound by the strictest confidentiality and there have never been any leaks by the CPT. Whatever the CPT has published has always been in agreement with the country concerned. So, in that part of the report when I mentioned Lithuania I naturally benefited from information that had become public thanks to the remarkable work carried out by several NGOs and I remember well at the time the prosecutor from Lithuania was also very active. What I found troubling in the report is that there too State secrecy was invoked.” Mr J.G.S. added: “One observation with regard to Lithuania bears mentioning at the outset. When we took up the mandate of the Council of Europe in late 2005 and early 2006, to investigate alleged secret detentions on Council of Europe Member States territories, we regarded this as an issue that had cast a dark shadow over the continent ’ s recent past. We had understood at the time of our investigation that it was a category of abuse which had albeit recently concluded. Several years later and today I am in a position to state this categorically: we are faced with the troubling yet inescapable realisation that at the time we were investigating, the abuses were not only part of Europe ’ s recent past but also of its present for contemporaneously to investigations led by Senator Dick Marty a secret detention site operated by the CIA and its national counterparts existed on the territory of the Republic of Lithuania. I wish to begin by setting out in the form of a graphic illustration the system in which such detention sites were situated. This is a system that spanned the entire globe but it had at its heart several hubs of operation here on the European continent. I am using a map of the world to show those present several categories of places at which aircraft landed in the course of the so-called war on terror.” 377. The concept of the so-called “global spider ’ s web” of rendition circuits executed by the CIA planes was explained as follows: “In order to construct a picture of the scale and volume of operations we began to map out specific circuits flown by rendition aircraft in the material period. I shall demonstrate two of these in order to illustrate the concept. In January 2004, first of all, our rendition circuits spanning twelve days saw the transfer between multiple different sites of up to eight individuals. The aircraft flew from Washington with a stopover in Shannon before arriving at its first staging point in Larnaca Cyprus. From Larnaca it embarked on its first pickup of a detainee in Rabat - Morocco, Binyam Mohamed, the British resident, who was flown to further secret detention in Kabul - Afghanistan. Between Kabul and Algiers there was a further detainee transfer before the crew and aircraft repaired to a second staging point in Palma de Majorca. From here the aircraft embarked on a rendition operation already accounted for by this court that of the German national Khaled El-Masri from Skopje via Baghdad to secret detention in Kabul. The aircraft then carried a high-value detainee Hassan Gul from Kabul - Afghanistan, to Bucharest - Romania. The aircraft once more returned to a staging point in Palma before flying back to the United States. This type of operation, whilst first uncovered in the Marty Report and seen as an anomaly, has in fact turned out to be quite typical of the way in which the CIA rotated and recycled its detainees among multiple secret detention sites on multiple continents. By way of further illustration in September 2003 the aircraft N313P embarked from Washington and flew to stopover in Prague before collecting detainees in Tashkent Uzbekistan handed over to the CIA by local counterparts. Those persons were transferred to Kabul, Afghanistan, whereupon a circuit encompassing five individual secret detention sites Kabul - Afghanistan, Szymany – Poland, Bucharest - Romania, Rabat - Morocco, culminating at the CIA ’ s detention facility at Guantánamo Bay. As early as September 2003 therefore it was not uncommon for these aircraft to be traversing long distances in short spaces of time and transferring under severe duress multiple detainees between multiple different detention sites. It is when we collated all of these operations that were known to us at the time and layered them onto this graphic, that we came upon this motif of a global spider ’ s web.” 378. As regards the role played by the Detention Site Violet country ’ s authorities, Mr J.G.S. stated: “Finally, Your Honours, I wish to point to you specific references to the actions of the Lithuanian counterpart in the administering of the site. The text of the Senate Committee Inquiry appears to refer to an individual, a person, as a representative of the counterpart authority and in this passage here the word that is used, and which I find significant, is “support”. Just as in earlier proceedings we pointed to a passage which referred to the support and cooperation of the Romanian authorities. Here we have an indication that money was offered as a means of quotes “showing appreciation for the support of the local counterpart”. We know this is Lithuania because it talks about the expanded facility and it talks about Detention Site Violet earlier in the same passage. It does talk also about complex mechanisms needing to be innovated for the disbursement of this money, which also indicates that notwithstanding the nominal support there were often inclinations to keep secret the nature of the cooperation. This is the last reference from the Senate Committee Report and I will conclude our presentation today, but I sense that it might also be important for the Court ’ s deliberations. We have heard from both the Seimas Parliamentary inquiry in Lithuania, and subsequently in public releases from the Lithuanian Prosecutor General ’ s office, that whilst they can confirm the existence of these two highly customised facilities fit to detain individuals, they are unable to endorse the conclusion that these were detention sites, because they have an alternative explanation as to what they were used for. This was a conclusion in the Seimas report and it has recently been cited by the Prosecutor General ’ s office as a reason for stalling investigation. The CIA reporting appears to present a different viewpoint. The CIA states that the Lithuanian counterpart ‘ probably has an incomplete notion regarding the facility ’ s actual function ’, meaning that the Lithuanians may have known of the site ’ s existence, they may have known of a stated purpose or a stated modus of cooperation, but there were some aspects, as in all host countries, which were regulated strictly upon the “need to know principle”, and the CIA did not divulge the individual incoming or outgoing detainee transfers to its Lithuanian counterparts in a manner that would allow them to be apprised of that specific aspect. Hence, when the statement at the end says he probably believes that it is some sort of other centre, there is a plausibility to the Lithuanian position stated in the Parliamentary Inquiry, persons who were not themselves party to the operations, and I think in assessing the cooperation between these two partners we can come to a conclusion very similar to that we reached in our inquiry vis-à-vis Poland and Romania that authorisations and approvals were necessarily provided at the highest levels of government, but primacy in the execution of operations lay unambiguously with the CIA, the American operatives. Sometimes at the expense of good relations with their hosts.” B. Senator Marty 379. Senator Marty was a member of the PACE from 1998 until the beginning of 2012. He chaired the Legal Affairs and Human Rights Committee and, subsequently, the Monitoring Committee. At the end of 2005 he was appointed as Rapporteur in the investigation into the allegations of secret detentions and illegal transfers of detainees involving Council of Europe member States launched by the PACE (see also paragraphs 266-277 above). On 2 December 2013 Senator Marty testified before the Court at the fact ‑ finding hearing held in Al Nashiri and Husayn (Abu Zubaydah) (see Al Nashiri v. Poland, cited above, §§ 319-323; and Husayn (Abu Zubaydah) v. Poland, cited above, §§ 305-317). 380. In the present case, in response to the questions from the Court and the parties, Senator Marty testified as follows. 381. In response to the judges ’ question as to what kind of evidence formed the basis for the findings and conclusions in paragraph 37 of the 2011 Marty Report (see paragraph 277 above) as to the operation of the CIA extraordinary rendition programme and existence of a CIA secret detention facility in Lithuania were made, Senator Marty stated: “First of all I should like to point out that the 2011 Report hardly concentrated on the problem of secret detention at all and therefore my function in relation to that of Mr [J.G.S.] is somewhat different because Mr [J.G.S.] continues to work upon the problem whereas I was occupied in other fields. ... The fundamental problem in the report of 2011 is to highlight the experiences that had been had in different activities, in other words governments increasingly had recourse to the defence of State secrets to cover the activities of the secret services. We also underscored, and the Assembly followed us in this, the need to strengthen surveillance of the secret services in different countries and we remarked that in different countries this monitoring is very weak, very loose, especially when one is dealing with military secret services. ... Now as to the sources, well, one might say why did the source that mentioned Poland or Romania not say anything about Lithuania? Well there is a rather simple reason for that and this is a reason which we did not grasp initially, but as we moved on we did understand. It is because the timeframes are different and those responsible in the CIA that were dealing with these programmes were not necessarily the same people. Therefore those who knew about Poland did not necessarily know about Lithuania and these are sources that we found subsequently. And that is the reason why there was practically no source that was aware of everything, because there was a continuum over time with different phases as Mr [J.G.S.], I believe, was able to establish with great precision. ... ” 382. In reply to the judges ’ question whether it could be said that Lithuania knew, or ought to have known, of the nature of the CIA rendition programme operated on its territory in 2005-2006 and whether this knowledge was such as to enable the Lithuanian authorities to be aware of the purposes of the CIA aircraft landings in Lithuania in 2005-2006, Senator Mary testified: “Well, again, it depends upon what you mean by authorities. If you ’ re talking about the Government, I say no. If you ’ re talking about Parliament – the Lithuanian Parliament, but that also applies to the Polish Parliament or the Romanian one – I would say no, because this operation – I like to recall for the record – was governed by the ‘ need to know ’ secrecy principle. So only those who absolutely had to know things, and even those who came to know, were not necessarily aware of all the details, that is the fundamental principle that governs the highest degree of military secrecy which is strictly regulated by NATO. So we never affirmed that it was the fault of the Lithuanian Government, we say that there are people at the highest level of the State in Lithuania, as in Poland, as in Romania, or Italy or Germany, who had knowledge of what was going on. Amongst those people, limited in number – politically speaking – they perhaps did not know all the details. What is important to know is that somebody allowed the CIA to move about freely, to have access to venues or buildings or premises where they were allowed to do what they wanted without any control whatsoever. I believe that that is the key to the problem. It is a complicity that was not active in any case. I imagine that no Lithuanians, no Poles, no Romanians, participated in these interrogations which were in fact torture pursuant to the International Convention against Torture, but people did not want to know this at a certain level, among certain representatives of the State, they did not want to know. That is the real problem. In criminal law you would talk about reckless conduct.” 383. Replying to the Government ’ s question as to what would be his opinion on Mr J.G.S. ’ statement that the 2014 US Senate Committee Report in sections relevant for the present case did not indicate the applicant ’ s name, Senator Marty stated: “It is true, it does not indicate countries either, but if we are cognisant of all the details of the case, if we know all the plane movements, if we know the movements of those detained during that time, it is relatively easy to reconstruct and come to the affirmation that Mr J.G.S. made. This obviously requires some analysis and cognisance of all the details of this rather complex case. However, if one takes the trouble to reconstruct, and Mr J.G.S. has already demonstrated this to me several times, you can only come to that conclusion.” 384. In response to the question from the applicant ’ s counsel as to how he would categorise the attitude and the level of cooperation of the Lithuanian authorities with his inquiry or, in so far as he was aware, with other international inquiries, Senator Marty said: “The attitude of Lithuania fully tallies, I would say, with all the other European countries that have had dealings with this CIA programme. One of the only countries where a minister immediately called me when I sent out the questionnaire and told me, “well look, I don ’ t know anything at all”, was Luxembourg. Even my own country – Switzerland – showed itself to be extremely reticent in responding to some of my questions.” C. Mr J.G.S. 385. Mr J.G.S. is a lawyer and investigator. He worked on multiple investigations under the mandate of the Council of Europe, including as advisor to the Parliamentary Assembly ’ s Rapporteur Senator Marty (2006 ‑ 2007) and as advisor to the former Commissioner for Human Rights, Mr Thomas Hammarberg (2010-2012). In 2008-2010 he served on the United Nations ’ international expert panel on protecting human rights while countering terrorism. He is presently engaged in official investigations into war crimes and organised crime cases. On 2 December 2013 Mr J.G.S. testified before the Court at the fact ‑ finding hearing held in Al Nashiri and Husayn (Abu Zubaydah) (see Al Nashiri v. Poland, cited above, §§ 311-318 and 324-331; and Husayn (Abu Zubaydah v. Poland, cited above, §§ 305-312 and 318-325). 386. In his testimony before the Court, he stated, among other things, as follows. 387. In reply to the judges ’ question whether, on the evidence known to him, it could be said that Lithuania knew or ought to have known of the nature of the CIA extraordinary rendition programme and that that programme operated on its territory in 2005-2006 and, if so, whether that knowledge was such as to enable the Lithuanian authorities to be aware of the nature and the purposes of the CIA aircraft landings on Lithuanian territory during that period, Mr J.G.S. stated: “Yes Your Honour, it is my conclusion that the authorities of Lithuania knew about the existence of this detention facility, and that through the highest levels of their government approved and authorised its presence on the territory of Lithuania. It is my conclusion that they certainly should have known the purpose to which this facility was being put because its nature and purpose was part of a systematic practice, which had already been implemented by the CIA across multiple other countries, including territories in the neighbourhood of Lithuania, and had been widely reported by the time the site in Lithuania became active. I would point out that there are different degrees of knowledge held by different sectors of Lithuania ’ s authorities. Of course, on the operational level the details are restricted to a very small number of trusted counterparts, primarily within the secret services, but I am not aware of any single instance of a CIA secret detention site having existed anywhere in the world without the express knowledge and authorisation of the host authorities. I have no reason to believe that Lithuania was any different.” 388. Replying to the Government ’ s question as to whether he had any data confirming that the aircraft that he mentioned had actually landed in Lithuania in February 2005 and March 2006 and had been used for the CIA renditions and not for other purposes in Lithuania, Mr J.G.S. testified: “In order to provide categorical evidence of where and when particular aircraft landed, investigations have normally relied upon information generated in the host state, so, for example, where an airport authority has serviced an aircraft or ground handling company has administered services to an aircraft. Normally these would be Lithuanian entities providing document from Lithuanian sources in respect of exactly where. Now, in respect of these aircraft, we are in possession of certain Lithuanian documents, furnished by notably the airport authorities and also some of the navigation services, including real-time logs, which appear to confirm their landings at Vilnius and Palanga respectively. However, these landings are not the primary focus of the documentation that we assemble from the international perspective. The international perspective tends to tell us what their destinations were and, importantly, what their purposes were. So it is through the collation of that first category of evidence with the second category of evidence that we arrive at conclusions as to the purpose of the flight. And in this respect I can say the following: the aircraft I have mentioned were contracted by the CIA through its established network of contractors including Computer Sciences Corporation, Sportsflight Air Inc., and individual aircraft operating companies for the express and exclusive purpose of transporting detainees between CIA operated detention sites. The particular contract in question associated with a unique billing code was administered solely for that purpose and in the course of my decade of investigations I have documented scores of rendition flights performed under this same contract, this same billing code, for the express and exclusive purpose of transporting detainees. There is not an alternative under that contractual designation, so on the second part of your question, Madam, I would say that the purpose was detainee transfer.” 389. In response to the Government ’ s question regarding his statement that the highest officials in Lithuania knew about the detention site, as to whether he had any information about any specific official who had given his consent for the programme, he stated: “With regard to Lithuania ’ s officials ’ responsibilities, I have not undertaken the investigation to the same degree of rigour that I was able to do when I worked on these cases full-time for the Council of Europe. I can postulate that persons in positions of highest authority in Lithuania, indeed analogous positions to those whom we named in respect of Poland and Romania, would have been among those who knew. But personally I have not satisfied myself of any specific individual ’ s knowledge and it is purely by virtue of not having had the opportunity to investigate that matter with a sufficient degree of investment, time or rigour.” D. Mr Black 390. Mr Black is an investigator with the Bureau of Investigative Journalism and with Reprieve, having an extensive experience in the field of the CIA extraordinary rendition programme. On two occasions, in 2012 and 2015, he was heard as an expert in the LIBE inquiry into the alleged transportation and illegal detention of prisoners in European countries by the CIA (see also paragraphs 28 8 and 29 4 above). He was involved in the preparation of the 2015 Reprieve Briefing and also prepared for the LIBE a briefing of 15 September 2015 on “CIA Detention in Romania and the Senate Intelligence Committee Report” (“the 2015 LIBE briefing”; see also Al Nashiri v. Romania, cited above, §§ 288 and 35 5 -35 8 ). Since 2010 Mr Black has continuously carried out research on the CIA Eastern European “black sites”. 391. In his testimony before the Court he stated, among other things, as follows. 392. In reply to the judges ’ question whether it could be said that that Lithuania knew or ought to have known of the nature of the CIA extraordinary rendition programme and that that programme operated on its territory in February 2005-March 2006 and, if so, whether that knowledge was such as to enable the Lithuanian authorities to be aware of the purposes of the CIA aircraft landings during that time on Lithuanian soil, Mr Black testified as follows: “I think it is pretty clear from the Senate Report that Lithuanian officials were aware of the programme operating on their soil. And there are two reasons that I would cite to support this conclusion. One is the reference to an official in the country that hosted site Violet being quite shocked but giving approval to the hosting, to the use of the site. And the other is the fact that we see from that same report that host country officials refused to allow medical access or access to their medical facilities for people in that site. I do not think it is logical to assume that they would not have allowed such access unless they believed that there was a particular security risk that was associated with the people who they believed were being held in that building. And I should add also, as in the case of Romania and indeed Poland, it is also clear from the Senate Report that the Lithuanian State received money for allowing their soil to be used in this manner. However, it is not clear how much money, we can only say that it is a certain number of millions of dollars but we cannot say, I do not know how many millions.” 393. The Government asked questions regarding Mr Black ’ s statement that medical aid had been denied to the CIA detainees, which were formulated as follows. – Question no. 1 “Am I right ... that the same US Senate summary states that national institutions refused access of high-value ... CIA detainees, to medical institutions?” – Mr Black ’ s reply: “Yes, that was specifically stated of Site Violet in the Senate Report and it was also discussed in the new release of the, I think it is called, the facility audit, which is one of the documents released in the last few weeks by the CIA. That document describes the problems that the CIA had in 2005 and 2006 getting medical attention in host countries. Now the new document, the facility audit, does not specifically mention which countries it refers to, although the only countries that were operating at the time that it covers were Lithuania and Afghanistan. The Senate Report on the other hand, contextually, in that paragraph it is clear, I believe, that it references to Lithuania and what it says is that they did not have the right type of medical facilities on their site to deal with medical problems and that they initially had an agreement with the host country that the host country would provide medical facilities in such eventualities. The host country had decided that it was not going to do that. The word that is used in the facility audit is that it “reneged”. I do not think that word is used in the Senate Report.” – Question no. 2: “Reading the Report summary it is really difficult to read it, but we have an impression that national institutions did not have knowledge as to what took place there. So if they did not know, how could they deny access?” – Mr Black ’ s reply: “Well, I think it is unequivocal that the Report summary says that a host country official was quite ‘ shocked ’ and I think that you can draw your own conclusions as to under what circumstances somebody might be shocked. I think that, generally speaking, it is pretty clear that as far as I can say from my accumulated knowledge of the CIA secret detention programme and certainly from my close reading of the Senate Report over the last year and a half, since it came out, my feeling is quite clearly that some host country officials always knew that there were prisoners held in these facilities. That does not imply that every single host country official knew. I believe the number is probably different in each different case, but I think it is clear that (a) at least some knew that there were prisoners being held on their territory and (b) they knew that they were receiving money to facilitate this. I think we can be clear that this is what the Senate Report says.” 394. In reply to the Government ’ s question as to whether he happened to know the names of the Lithuanian officials who had known of the above elements, Mr Black said: “No, I do not. I have not undertaken research into specific Lithuanian officials and what they might or might not have known. I have endeavoured to make the information that I have available to Lithuanian officials. I have sent information, quite exhaustive information, about flights and contracts to the Lithuanian prosecutor to which I never received any response incidentally. But I have not beyond that tried to research personal knowledge by specific officials in Lithuania.” 395. Lastly, in reply to the questions from the applicant ’ s counsel regarding Mr Black ’ s field investigation undertaken in Lithuania and whether, to his knowledge the prosecutor ’ s office had ever contacted eye-witnesses interviewed by Mr Black, he stated: “My field investigation, when I was interviewing local eyewitnesses, was largely in 2011, and at that time we asked each individual who we interviewed as to whether or not they had been approached by a representative of the prosecutor ’ s office to take a statement and they all said no. I do not know whether subsequently after that time, 2012 onwards, whether or not they might have been interviewed by the prosecutor, I could not say. ... [T]o the dossier which I submitted after the publication of the Senate Report, in other words in January 2015, there was no response whatsoever. The purpose of that dossier was to essentially demonstrate the correlation between Lithuania and Site Violet. So no, there was no response to that. I believe that in 2012, when we at first identified the precise, the full contracting details and route of N787WH, I believe we published that material but we also wrote to the prosecutor offering, I guess, to engage in a dialogue about the material or to offer whatever assistance regarding that material the prosecutor ’ s office might want. But again, we received no response to that either.” THE LAW I. THE GOVERNMENT ’ S PRELIMINARY OBJECTIONS TO THE ADMISSIBILITY OF THE APPLICATION A. Lithuania ’ s lack of jurisdiction and responsibility under the Convention in respect of the applicant ’ s alleged rendition to Lithuania, detention and ill-treatment in a CIA detention facility in Lithuania and transfer out of Lithuania and the applicant ’ s lack of victim status 396. Article 1 of the Convention states: “The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of [the] Convention.” 397. Article 34 of the Convention states: “The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.” 1. The Government 398. At the outset, the Government submitted that the facts of the case as described in the application amounted to a mere re-statement of some inquiry reports and various press reports without disclosing even one credible fact. The facts seemed to be based on the beliefs and assumptions of the applicant ’ s lawyers. For instance, in support of the allegation that the applicant had secretly been detained in Lithuania, his counsel had cited a passage in a media report saying that “according to two former US intelligence officials” Abu Zubaydah had been held in “a secret prison in Lithuania”. 399. The Government stressed that the complaints raised in the application were related to charges of exceptional gravity – they concerned alleged incommunicado detention, torture and inhuman treatment, secret rendition, abduction and forcible disappearance, which were all serious crimes within the meaning of international criminal law and which would in any event constitute grave violations of human rights. They thus asked the Court to assess evidence presented by the applicant with particular circumspection. In that regard, they referred to the Court ’ s case-law regarding victim status which stated that a mere suspicion or conjecture was not enough to establish such status and that, in order to be able to claim to be a victim, an applicant must produce reasonable and convincing evidence. They also relied on rulings of the International Court of Justice, in particular in the case of Bosnia and Herzegovina v. Serbia and Montenegro (Judgment of 26 February 2007, § 209), in which that Court held that “claims against a State involving charges of exceptional gravity must be proved by evidence that is fully conclusive”, and also on the judgment in the Corfu Channel case ( United Kingdom v. Albania, ICJ Reports 1949, p. 17). 400. At the public hearing, the Government expressed their regret that the applicant had been subjected to particularly brutal and degrading treatment as part of the CIA ’ s secret High-Value Detainee (HVD) Programme, which was totally irreconcilable with the basic principles of democracy, respect for human rights and the rule of law guaranteed by international and national law. The facts as established in various international investigations and by the Court in Husayn ( Abu Zubaydah) v. Poland ( no. 7511/13, 24 July 2014), had revealed the shocking scale of that Programme. The Government did not contest those facts. However, they were convinced that no violation of the applicant ’ s Convention rights had taken place in Lithuania. 401. Having regard to all evidence produced by the applicant and heard by the Court, the Government considered that there were no objective grounds on which to conclude that any of the aircraft referred to by the applicant had been used to transfer him or any other person to Lithuania. Nor were there any grounds to establish that a CIA secret detention facility had operated on the territory of Lithuania during the relevant or any other period. The evidence collected in the case was not sufficient to establish links between the applicant ’ s allegations and Lithuania. 402. The Government regretted that the case was being heard before the final conclusion of the pre-trial investigation by the Lithuanian Prosecutor General ’ s Office, which, after being discontinued in 2010, had been re ‑ opened in 2015 and was currently ongoing. This, in their view distorted the principle of subsidiarity underlying the Convention system. As a result, in order to protect the interests of the current investigation, the Government would have to base their arguments as to Lithuania ’ s lack of responsibility under the Convention on evidence gathered in the course of the investigation conducted in 2010. 403. To begin with, they said, the applicant ’ s arguments as to Lithuania ’ s involvement in the CIA secret detention programme constituted a mere presumption based on the alleged existence of some political agreements to that effect. Yet not a single high-ranking State politician or official had ever in any way admitted to having known of or agreed to the country ’ s involvement in CIA detention facilities. There was sufficient evidence from the State officials and State Security Department officials and the persons who had held the office of the President of the Republic to corroborate that they had not had any knowledge of any such involvement. In that respect, the Government emphasised that the President of the Republic, who was the Head of State and the Commander-in-Chief of the armed forces, had not given his consent for the operation of CIA detention centres and all persons who had held that office did not have any knowledge about the programme. All the high-ranking officials who had worked for the SSD had merely known of some theoretical considerations that there might have been some requests for assistance in the “war on terror”. This consistent and clear evidence could not be refuted merely by the information in the public domain relied on by the applicant. 404. They further stressed that the applicant ’ s allegations concerning his secret rendition to and from Lithuania, and his detention and ill-treatment in CIA secret facilities in Lithuania, had been rejected as unfounded in the course of the pre-trial investigation carried out by the Prosecutor General ’ s Office in 2010. In their opinion, particular importance must be attached to the prosecutor ’ s conclusion that no evidence had been obtained concerning unlawful rendition by the CIA of any persons, including the applicant, to or from Lithuania. Having established that the applicant had not been transferred to or kept in Lithuania, or sent to other countries from Lithuania, either by its own officials or agents of the CIA, it must likewise be concluded that Lithuania could not be held responsible for any such actions since the applicant had not been within its jurisdiction. 405. Consequently, given Lithuania ’ s lack of jurisdiction and the fact that the applicant ’ s allegations of secret detention in the country had not been proved beyond reasonable doubt, no responsibility under the Convention could be attributed to the Lithuanian State. Likewise, since there had been no evidence that the facts as alleged by the applicant had taken place, the applicant could not be considered a victim of the acts complained of within the meaning of Article 34 of the Convention. 2. The applicant 406. The applicant asked the Court to dismiss the Government ’ s preliminary objections. He underlined that the Government ’ s submissions in respect of a lack of evidence in his case failed, in various respects, to take account of the nature and characteristics of the extraordinary rendition and secret detention programme, which was designed and implemented to ensure that no information came to light and that any evidence would be withheld or destroyed. It was inherent in the nature of these practices that some of the key information lay solely with the State authorities and was therefore very difficult, indeed often impossible, for individual applicants to secure. In the absence of a meaningful official investigation, as in the present case, evidence would necessarily be limited. 407. In addition, the applicant was operating under a unique set of encumbrances, arising out of the anomalous and abusive circumstances in which he was currently detained, posing unprecedented levels of difficulty in the presentation of his case. The Government, in their submissions, had made no accommodation for the applicant ’ s circumstances or for the context within which the CIA rendition programme had operated. Despite the challenges, the applicant had presented a compelling case that relied on evidence from a wide range of sources. His case was supported by extensive corroborative material that provided both direct and indirect evidence of the Lithuanian State ’ s involvement in the rendition programme, and its responsibility for violations of the applicant ’ s rights through its acts and omissions. 408. In the applicant ’ s submission, the Government ’ s arguments in support of their contention that the case be dismissed for lack of evidence of State responsibility should be refuted. The same applied to their objection as to the applicant ’ s victim status. The CIA rendition and torture programme simply would not have been possible but for the willing cooperation of States around the world, including Lithuania. Lithuania had played a key role in the rendition programme. Its role had come at an advanced stage, when knowledge of the facts, concerning the abusive nature of the secret detention programme, had been beyond plausible deniability. Despite this, Lithuania had been a willing partner, actively cooperating with the United States to set up and operate a secret detention centre on its territory. Despite now irrefutable evidence that it had hosted a “black site”, Lithuania had still failed to acknowledge the existence of the site or any responsibility on its part. It had still failed to engage in a meaningful investigation, and it had still failed to ensure that those responsible could be held to account or that lessons could be learned to ensure respect for the rule of law in the future. As in the applicant ’ s case against Poland, the evidence against Lithuania was necessarily drawn from diverse sources and had to be considered as a whole. Taken together, these sources provided overwhelming evidence of Lithuanian responsibility for violations of Articles 3, 5, 8 and 13 of the Convention. 409. Furthermore, it was well established that the standard for responsibility under the Convention, was whether the State “knew or should have known” of a real risk of violations and had failed to take reasonable measures to prevent the violations. In the applicant ’ s view, Lithuanian responsibility on this point was plain. Lithuania not only should have known, it in fact had known of the risk of violations, and not only had it failed to prevent them, it had actively helped to facilitate them. Lithuania had been the last European “black site”, the applicant ’ s detention there taking place in 2005-2006. The Court in Husayn (Abu Zubaydah) v. Poland had found that already by 2002-2004 there had been widespread generalised knowledge about secret unlawful detention and ill-treatment by the US. There was simply no plausible room for doubt as to knowledge of the nature of the secret detention system in 2005 and 2006. 3. The Court ’ s assessment 410. The Court observes that in contrast to cases where objections that a State had no jurisdiction were based on an alleged lack of the respondent State ’ s effective control over the “seceded” territory on which the events complained of had taken place (see Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, §§ 300-304, ECHR 2004 ‑ VII) or the alleged lack of attributability on the grounds that the events complained of had occurred outside the respondent State ’ s territory and were attributable to another entity (see Loizidou v. Turkey (preliminary objections), 23 March 1995, §§ 47 and 56, Series A no. 310; and Cyprus v. Turkey [GC], no. 25781/94, §§ 69-70 ECHR 2001 ‑ IV), in the present case the Government ’ s objection in effect amounts to denying that the facts adduced by the applicant in respect of Lithuania had actually ever taken place and to challenging the credibility of the evidence produced and relied on by the applicant before the Court (see paragraphs 396-402 above). The Government ’ s objection alleging that the applicant lacks victim status for the purposes of Article 34 of the Convention is based on similar arguments (see paragraphs 396 and 402 above). 411. The issues of the Lithuania ’ s State responsibility under the Convention and the applicant ’ s victim status are therefore inherently connected with the establishment of the facts of the case and the assessment of evidence. Consequently, in order to determine whether the facts alleged by the applicant are capable of falling within the jurisdiction of Lithuania under Article 1 of the Convention and the applicant can be considered, under Article 34, a “victim of a violation ... of the rights set forth in the Convention” by the respondent State, the Court is required first to establish, in the light of the evidence in its possession, whether the events complained of indeed occurred on Lithuanian territory and, if so, whether they are attributable to the Lithuanian State. The Court will therefore rule on the Government ’ s objections in the light of its findings regarding the facts of the case (see paragraphs 584-585 below). B. Non-compliance with the rule of exhaustion of domestic remedies and the six-month rule 412. Article 35 § 1 of the Convention states: “The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.” 1. The Government (a) Non-exhaustion of domestic remedies 413. In the Government ’ s submission, the applicant failed to exhaust all effective domestic remedies in respect of his complaints under Articles 3, 5 and 8 of the Convention. In their initial observations, they maintained that, pursuant to the relevant provisions of the Code of Criminal Procedure, any person considering that he had been unlawfully detained (a crime defined in Article 146 of the Criminal Code) had the right to challenge, in person or through a legal representative, the lawfulness of the detention. Furthermore, he could seek redress, under Article 6.272 of the Civil Code, for any damage incurred on account of such unlawful detention. They also stressed that torture or inhuman and degrading treatment were prohibited under Lithuanian law, and any person considering that he had been subjected to ill-treatment could address the competent authorities and request that criminal proceedings be brought (e.g. under Articles 100 or 228 of the Criminal Code). In that context, criminal liability under other Articles of the Criminal Code might also have arisen (e.g. Articles 291 and 292). Any victim could seek redress for the damage incurred due to ill-treatment before the ordinary or administrative courts (under Articles 6.271 or 6.272 of the Civil Code). A person who was a victim of a crime was entitled to participate in criminal proceedings (Article 28 of the Code of Criminal Procedure) or could submit a civil claim in the course of the criminal proceedings, seeking redress for the damage incurred as a result of a criminal offence (Article 109 of the Code of Criminal Procedure). In sum, where a crime had been committed, the domestic legislation provided a victim of a crime with several legal avenues for the purpose of having perpetrators prosecuted and obtaining pecuniary compensation. 414. However, the applicant had failed to have recourse to any of those legal remedies available under Lithuanian law. In particular, in the course of the pre-trial investigation carried out by the Prosecutor General ’ s Office in 2010, Reprieve – which alleged to be “acting on behalf of the applicant” – had never asked the prosecution to recognise the applicant as a victim or had presented any authorisation from the applicant to do so. The applicant had never addressed the national competent authorities in person or through his representatives as regards the alleged breaches of the Convention committed by the Lithuanian authorities to his detriment. As to the possibility of requesting the institution of criminal proceedings, it should be noted that according to the relevant legal provisions, a prosecutor might institute a pre-trial investigation either on his own motion, having established elements of a criminal offence, or upon receiving a notification or request indicating that a criminal offence had been committed. However, in both instances certain factual information had to be presented to the prosecuting authorities in order for them to initiate a pre ‑ trial investigation. Neither the applicant himself nor Reprieve, which had addressed the Prosecutor General ’ s Office on several occasions, ever presented to the prosecution any factual data or credible evidence in support of their allegations concerning the alleged rendition of the applicant to and from Lithuania or his alleged incommunicado detention at “secret CIA facilities” in Lithuania. 415. In view of the foregoing, the Government asserted that a domestic remedy had been, and still was, available to the applicant, should he ever produce evidence showing the slightest link between him and the Republic of Lithuania. However, apart from some information about the flights and the routes of the aircraft – on which, as it had been established in the course of the pre-trial investigation – no detainees had been transported to and from the territory of Lithuania, the applicant had so far not made a sufficiently credible allegation of having been secretly detained and ill-treated in the country. 416. In their further pleadings, lodged after the pre-trial investigation had been re-opened on 22 January 2015, the Government asked the Court to consider the fact that fresh proceedings relating to the applicant ’ s allegations were ongoing in its assessment of the applicant ’ s compliance with the exhaustion rule. (b) Non-compliance with the six-month rule 417. The Government further argued that the applicant had also failed to comply with the six-month time-limit under Article 35 § 1. They maintained that, even assuming that the events complained of by the applicant had indeed taken place, the application had been lodged out of time. The Government were of the view that the period of the six months had started to run on the day when the applicant ’ s alleged detention in Lithuania ended, i. e. according to his statements, on 25 March 2006. In any event, the latest date on which the applicant could have become aware of his allegedly unlawful detention and ill-treatment in Lithuania was in 2008 when he had supposedly had his meeting with Mr Margulies, his US counsel. Accordingly, had the applicant considered himself a victim of Convention violations on the part of Lithuania, he could have initiated the proceedings before the Court much sooner. 2. The applicant 418. The applicant invited the Court to dismiss the Government ’ s preliminary objections. (a) Non-exhaustion of domestic remedies 419. The applicant emphasised that the Court had repeatedly acknowledged that in cases involving violations of Article 3, the appropriate remedy to pursue for exhaustion purposes was a criminal investigation and process. The Government, however, had alleged that the applicant had failed to exhaust domestic remedies as Reprieve had not requested victim status for him. The requirement to have exhausted domestic remedies under the Convention did not require that victim status be requested in national proceedings, it was sufficient to have complained to the relevant authorities that a crime had been committed. The correspondence from Reprieve could not be interpreted in any other way than having raised such a complaint. They had done so not only in the first letter but also in subsequent correspondence. 420. Referring to El-Masri v. the former Yugoslav Republic of Macedonia ([GC], no. 39630/09, § 140, ECHR 2012 ) the applicant further pointed out that the Court had held, while finding that domestic remedies had been exhausted by the fact of a rendition victim alerting the prosecuting authorities, as follows: “If the actions of the State agents involved have been illegal and arbitrary, it is for the prosecuting authorities of the respondent State to identify and punish the perpetrators. Alerting the public prosecutor ’ s office about these actions must be seen as an entirely logical step on the part of the victim”. The applicant considered that the rationale of the Court in the El-Masri case applied a fortiori to the present case, leading to the conclusion that he had taken all measures that could reasonably have been expected of him in the circumstances to exhaust domestic remedies. To suggest that the efforts to secure justice in Lithuania had, in all the circumstances, been insufficient, on the basis of a lack of personal involvement or a lack of formal authorisation, was, in his view, a short-sighted and formalistic approach inconsistent with the need to interpret and apply the Convention in a way that rendered its rights practical and effective. The Government ’ s arguments were moreover disingenuous in that they could not meaningfully contend, in the light of their arguments on the nature of the investigation and the reasons for the decision to close it, that had the applicant applied for victim status, or had a written legal authorisation form been obtained, the outcome of the domestic process could or would have been any different. (b) Non-compliance with the six-month rule 421. In the applicant ’ s submission, the Government ’ s argument that the time-limit of six months should have run from the day when the applicant ’ s alleged detention in Lithuania had ended, despite the fact that he had continued to be kept in secret CIA incommunicado detention at that time and for sometime thereafter, was an absurdity. Likewise, their further argument that his meeting with Mr Margulies in 2008 represented, in temporal terms, the outer limit beyond which the current application fell foul of the six month time limit could not be accepted. Neither suggestion stood up to scrutiny when considered in the overall context of the applicant ’ s circumstances and the availability of information concerning extraordinary rendition and secret detention in Lithuania. The applicant had requested a criminal investigation, in pursuit of the only effective remedy in cases of this nature, and had urged that certain investigative steps be taken which should have prompted a pre-trial investigation under Article 166 of the Lithuanian Code of Criminal Procedure. Subsequently, on 14 January 2011, the Prosecutor decided to discontinue the pre-trial investigation. The applicant submitted an introductory complaint to the Court on 14 July 2011. Accordingly, he had taken his case to the Court within six months from the closure of the domestic investigation at which time it had become indisputably apparent that there would be no effective domestic remedy in Lithuania. 3. The Court ’ s assessment 422. The Court observes that the Government ’ s objections raise issues concerning the effectiveness of the criminal investigation into the applicant ’ s allegations of torture and secret detention on Lithuanian territory and are thus closely linked to his complaint under the procedural limb of Article 3 of the Convention (see paragraph 3 above and paragraph 588 below). That being so, the Court considers that they should be joined to the merits of that complaint and examined at a later stage (see, mutatis mutandis, Al Nashiri v. Poland, no. 28761/11, § 343, 24 July 2014; and Husayn (Abu Zubaydah) v. Poland, cited above, § 337, both with further references to the Court ’ s case-law). II. THE COURT ’ S ESTABLISHMENT OF THE FACTS AND ASSESSMENT OF EVIDENCE A. The parties ’ positions on the facts and evidence 1. The Government 423. As noted above, the Government dismissed the applicant ’ s allegations as being unsupported by any evidence and, consequently, lacking any factual basis. They also challenged the credibility of the evidence relied on by the applicant and denied that Lithuania had any knowledge of, or complicity in, the operation of the CIA HVD Programme on its territory at the material time (see paragraphs 39 8-405 above). The Government ’ s conclusions on the facts and evidence were as follows. (a) Lack of credibility of evidence adduced by the applicant 424. The Government contested the evidential value of the material produced by the applicant. They stressed that most of that material had originated in various public sources whose credibility had not been verifiable. The Government would not play down the significance of publicly available information about the CIA ’ s HVD Programme; indeed, in the El-Masri case (cited above) similar material on public record had been taken into account by the Court. However, in contrast to the present case, that material had constituted merely a supplementary source for the Court ’ s findings. In El-Masri the Court had relied first of all on the applicant ’ s description of the circumstances, which had been very detailed and, secondly, on indirect evidence obtained during the international inquiries and the investigation in Germany. The Court had had at its disposal scientific evidence, such as a test of the applicant ’ s hair follicles, geological records confirming the applicant ’ s recollection or sketches of the layout of the prison in Afghanistan that the applicant had drawn. Only in addition had the Court relied on the material available in the public domain. In the present case, the applicant had built his case the other way round, starting from publicly available information and, in fact, also finishing with it as he had been unable to produce any other evidence. 425. As regards the applicant ’ s reliance on the case of Richmor Aviation Inc. v. Sportsflight Air Inc. (see paragraphs 4 50 -4 51 below), the Government saw little, if any, connection with his alleged detention in Lithuania. The case had concerned a commercial dispute between two aviation companies, where the plaintiff, Richmor Aviation, had submitted an invoice to Sportsflight Air demanding payment for unused flight time for thirty-two months between May 2002 and January 2005. It did not appear that the companies had exclusively carried out rendition flights. The aircraft mentioned in the case-file differed from those appearing in the present case. The events that had given rise to the litigation had occurred prior to the flights to Lithuania, before February 2005. Even if the witnesses in the Richmor case had given some fragmentary testimony to the effect that the flights contracted by the US Government through the companies at the material time (from May 2002 to January 2005) and performed by the Gulfstream IV aircraft could be used sometimes for the purposes of the rendition programme, this had nothing to do with the flights to and from Lithuania allegedly used for the applicant ’ s rendition. (b) Lack of evidence demonstrating that certain CIA-linked planes landing in Lithuania between 17 February 2005 and 25 March 2006 carried out extraordinary rendition missions 426. The Government did not dispute the fact that during the relevant period, as well as earlier, there had been a number of CIA-linked aircraft landings in Lithuania at Palanga and Vilnius airports. The circumstances relating to those landings had been thoroughly analysed in the course of the pre-trial investigation and no links between the impugned aircraft and the CIA rendition programme had been established. In particular, all persons who had been present at the time of arrivals or departures of the planes, including the airports ’ employees, officers of the SBGS and the SSD had been questioned and all relevant documents had been obtained from the SSD. From the totality of that material the prosecutor had concluded that no detained persons had ever been brought into or taken from the territory of Lithuania. Furthermore, no link had been found between the flights in question and any detainees of the CIA in general and the Projects No. 1 or No. 2 in particular. The prosecuting authorities had established that despite the fact that on some occasions Customs and SBGS inspections had not been carried out, it appeared from the documents provided by the SSD that in all instances the SSD officers had had access to the aircraft in accordance with the Law on Intelligence. It had also been established that the SSD officers, who had sought and obtained uninterrupted access to the airports ’ sectors at which the CIA aircraft had landed, had acted in a lawful manner and had not abused their office or exceeded the limits of their authority. 427. As regards the flights N787WH of 18 February 2005 and N733MA of 25 March 2006 indicated by the applicant as those on which he had been brought into and taken out of Lithuania, the prosecution having investigated in detail both flights had established beyond any reasonable doubt that no CIA detainee (including the applicant) had been transported on them. The same applied to any other CIA-linked flights landings during the period in question. The evidence collected in the investigation had revealed the true purpose of the N787WH ’ s and N733MA ’ s landings. In that connection, twenty-six witnesses had been questioned and abundant documentary evidence had been obtained. 428. It had been established that the N787WH flight of 18 February 2005 had arrived with, in the Government ’ s words, “five foreign citizens of one State” and three crew members. Needless to say, the Government added, the applicant had not been among them. All of them had gone through a State border control for passengers between 20:05 and 20:15 and again between 20:30 and 20:50. Then the plane had left for Copenhagen. The purpose of the landing had been a carriage of some specific cargo, which explained why the vehicle had been seen next to the plane and then leaving. The carriage of the cargo had been related to the activities of the SSD, and the nature of the activities explained why the SSD had asked to be provided with access to the plane. Likewise, the N733MA flight of 25 March 2006 had brought cargo into Lithuania and had not been involved in the transportation of the CIA detainees. 429. Notwithstanding the fact that there was no data in the pre-trial investigation as to the purpose of the cargo, on the basis of the whole body of material collected it might be concluded that “some specific cargo” could have been communications equipment necessary for the technical maintenance of the implementation of a joint project of the SSD and the partners. Due to the particular importance of certain cargo, the Intelligence Services would request direct access to planes. For this purpose, as confirmed by witnesses M, O and N, classified letters used to be written to the airport and the SBGS. As regards the flight N787WH on 18 February 2005 it might be concluded that five persons, US citizens, had arrived at Palanga airport. As regards the cargo on the flight N733MA of 2 5 March 2006, it might be concluded that some equipment could have been carried on the flight at issue. It had been packed in boxes of not less than one metre in length, which, as V confirmed, had been carried by two persons. There was a record in the investigation file showing that the cargo could have been exported by the flight on 25 March 2006, as confirmed by officer O. According to the testimony of the witnesses, it might be concluded that the vehicles of partners used to enter and leave the airports escorted by the SSD officers. The officers used to escort them to the plane; officer V had stated that he had been fifty metres away from the plane. The investigation file included the SSD ’ s requests submitted in respect of both flights; both of them had been duly reasoned and indicated the purpose of the flights, which constituted a State secret. No customs control had been performed in either case, not because of the SSD ’ s requests but due to legal regulations under which it had not been obligatory and could be performed on an occasional basis. 430. The SSD had asked the administration of the airport in both instances to allow their officials to access the airport in order to carry consignments and parcels from the airport to their final destination and nothing else. The SSD had never asked for a customs or State border control not to be carried out. It had not interfered in any way with the functions of the State Border Security Service. According to testimonies of many SSD officials, these two flights had not been exceptional and they were not the only ones where the SSD had asked for permission to have access to certain aircraft. In general, over the years 2005-2006 there had been an enormous number of flights of various NATO States with military, official and non-official delegations. According to the testimony of the director of the Civil Aviation Authority, Palanga International Airport had mostly been used for those landings since it received less flights than Vilnius International Airport. 431. All the SSD officials involved in the reception and transport of the cargo had been questioned by the prosecutors in that connection and had described in detail what the cargo looked like, where it had been transported, whether anyone else had been able to see it and why special supervision of the SSD had been needed. All of them had testified that it had been only boxes which had been unloaded first from the aircraft and then other boxes and some parcels which had been loaded into the aircraft. There had been many of them, all of the same size, definitely too small to place any person inside. The loading itself had been carried out openly and could be seen by the employees of the airport. The boxes brought by the aircraft had been carried by the SSD officials to Vilnius, but not to Project No. 1 or Project No. 2. 432. At the public hearing, answering the judges ’ questions as to the nature of the cargo, the Government further explained that the cargo had contained “special equipment that had been meant for a special investigation department” – and that the purpose had been “to equip this department and its personnel”. (c) Lack of evidence demonstrating that a CIA secret detention facility operated in Lithuania and that the applicant was detained in that facility (i) As regards the alleged existence of a CIA secret detention facility 433. The Government maintained that the pre-trial investigation had established conclusively that no secret prison run by the CIA had existed in Lithuania. In particular, the applicant ’ s allegation that a CIA secret detention facility had operated on the premises of Project No. 2 and that Project No. 1 had been designated for that purpose but not used as such had lacked any factual basis. 434. It was true that Project No. 1, which had been carried out in 2002 by the SSD and the CIA and the Project No. 2, which had been implemented by the same partners in 2004, had involved the reconstruction and fitting-out of certain premises. However, evidence gathered by the prosecutor had conclusively excluded the possibility of either of these premises having been used as a prison for CIA detainees. 435. In the course of the pre-trial investigation numerous persons had been questioned – not only those who had participated directly in the construction works on Project No. 1, but also those responsible for its subsequent use. Having analysed all relevant evidence, the prosecutor – contrary to the statement made by the CNSD that “conditions [had been] created for holding detainees” – had concluded that this building had been used exclusively by the SSD officers and that it had been absolutely unsuitable for holding detainees due to its geographical location (the city centre) and the facilities on the premises. In that regard, the Government also underlined that the CNSD Findings had to be seen in the light of its competence and the nature of parliamentary inquiries performed by it. According to the Constitutional Court ’ s ruling of 13 May 2004, “the Seimas [was] neither an institution of pre-trial investigation, nor a prosecutor ’ s office, nor the court” and therefore its conclusions were not “binding on institutions of pre-trial investigation, the prosecutor ’ s office or the court” (see also paragraph 219 above). 436. The premises referred to as Project No. 1 were situated in an auxiliary building in the yard next to the main building at Z. Sierakausko Street in Vilnius where the premises of the SSD had been located at the material time. In 2002 the auxiliary building had been in an emergency condition, and repair works had been needed. As all repair works had been documented, the documentation had been received and analysed by the prosecutor. The builders had confirmed that no wishes had been expressed by the SSD officers that the work be related to the detention of any persons. One of the witnesses, who, at the relevant time, had been in charge of the administration of both Projects No. 1 and No. 2, had described the purpose of the premises in the building referred to as Project No. 1 at Z. Sierakausko Street for which they had been fitted out, though he had testified that the premises had never been used since 2002 for that particular purpose. This purpose had been closely related with the structure and functions performed by the SSD, which in themselves constituted a State secret and therefore could not be declassified. Those statements had been corroborated by many other lower SSD officials and technical workers, who had testified that the premises had never been used for any other purposes that were not related to the needs of the SSD. 437. As regards Project No. 2, the Prosecutor General ’ s Office, based on witness testimony, had established that no special facilities suitable for holding detainees had ever been installed inside the building. In particular, there had been no premises fitted with bars or otherwise specifically adapted for detention purposes. Also, it had been established that access had been permanently controlled and the persons in charge of the building ’ s security had confirmed that no detainees had ever been present there. Thus, having regard to all the relevant evidence, the prosecution, contrary to the CNSD ’ s findings that the SSD officers had not always had the possibility of monitoring the arrival and departure of persons at Project No. 2, concluded that access to Project No. 2 had been under permanent control, thus ruling out the possibility of bringing detainees into the building. 438. Project No. 2 was located in Antaviliai. The building had been acquired for the needs of the SSD in accordance with the requirements of national law and the repair work on the premises had started in 2004. The work had been finished in January 2005. All the SSD officials involved in this project (Director General, Deputy Director General and other SSD officials of lower rank), had been questioned by the prosecutors. They had testified that the purpose of the premises in question could not have – and in fact had not had – anything to do with the detention of any persons. All witnesses had spoken of classrooms, living and meeting rooms, as well as sports rooms. The SSD officials of lower rank had been in charge of the repair work on the premises and the security of the building after its completion. Having been questioned several times, they had confirmed that no facilities suitable for holding detainees had ever been fitted in the building. The building had never been left without supervision of the SSD officials, who had testified that there had been no secret or closed zones inside it which would not be accessible to them. Also, in the Government ’ s view, the geographical location of the building had made it totally unsuitable for detention as it was situated in the village of Antaviliai and surrounded by residential houses. 439. According to the Director General of the SSD at the relevant time, the building had been used at the beginning of 2005 to a very limited extent – several meetings took place there. As the SSD officials in charge of the building ’ s security had testified, it had been used randomly and only for short-term meetings in which the SSD officials and their guests had participated. The visitors had been driven there exclusively by the authorised SSD officials. Thus, contrary to the findings of the CNSD, it had not been possible for any other persons save the SSD officials to use the building at their discretion. In the second half of 2005 the surveillance of the building had been taken over by the SSD ’ s section. At that time it had temporarily not been used at all but had remained open to the SSD employees. Since 2007 the SSD training centre had occupied the building. 440. All documents related to the Projects No. 1 and No. 2 had been collected from the SSD, including material containing State secrets. Part of those documents, for instance the records of the on-site inspection of Projects No. 1 and No. 2 together with annexes comprising the photos of the buildings, premises and their surroundings, had been declassified and submitted to the Court. The materials clearly showed that no prison could have been hosted on those premises. 441. In sum, the prosecutor had found that both premises had, at the relevant time, served other purposes, which had in no way been related to the holding or confinement of persons, although those purposes could not be declassified for the simple reason that the SSD ’ s partner would have to consent to such disclosure. 442. At the public hearing, the Government reiterated the above statements. They added that after analysing all the relevant circumstances it had been established that the flight N787WH on 18 February 2005 and the flight N733MA on 25 March 2006 had been used for transporting a special ‑ purpose cargo and that cargo could not contain the applicant or any other person. It had been the connection equipment for the SSD providing them and their partners with technical services in order to implement their joint project. That explained why they had asked for direct access to the aircraft. As regards the alleged locations of the CIA prison, Project No. 1 had been used for operational activities, Project No. 2 had been used for intelligence activities. The facilities of Project No. 2 had never been used for their original purpose and they had later been reconverted and used as the SSD ’ s training centre. Replying to the judges ’ questions as to why the 2002 SSD Resolution and the 2002 SSD Action Plan referring to the purpose of the premises to be selected had spoken of the “extradition of secret intelligence collaborators”, the Government explained that this was due to the terminology used at that time – at present that term would correspond to “exfiltration” or “extraction”, meaning the relocation of special agents or secret agents into their normal life or natural environment. The added that, as regards the purposes served by the facilities, Project No. 1 had been meant for special officers and their “extraction”, while Project No. 2 had been the support centre for intelligence. (ii) As regards the applicant ’ s alleged secret detention in Lithuania 443. The Government argued that there had been no credible evidence confirming the applicant ’ s presence on the territory of Lithuania. The present case was built on some leaked information which had appeared in media in 2009 and which referred to the alleged existence of CIA secret detention facilities in Lithuania. That information had never been confirmed officially, either directly or indirectly. Moreover, the applicant ’ s lawyers had referred to unknown “public sources” indicating that the applicant had been moved from Morocco to Lithuania in early 2005, that the Lithuanian prison site had been closed in the first half of 2006 and that its occupants had been transferred to Afghanistan or other countries. In essence, the entire case rested on the routes of certain flights and their alleged links with the CIA. The applicant had described in detail the routes of N787WH on 15-19 February 2005 and N733MA on 23-27 March 2006, highlighting the stopovers of the first aircraft in Morocco and the second one in Cairo. He also referred to some invoices and contracts regarding those flights which, in his view, indicated their links with the CIA and the extraordinary rendition programme. Not a single direct or indirect piece of evidence had ever been produced that would reveal the slightest connection between the applicant and the flights in question. The Government said that in this regard they would appeal to pure common sense – the routes of the flights demonstrated nothing more than the fact that the aircraft had landed for a short while in Lithuania. Even if their links with the CIA were confirmed, this did not prove by itself Lithuania ’ s involvement in the HVD Programme, still less the applicant ’ s secret detention on its territory. 444. The Government regretted the suffering sustained by the persons, including the applicant, detained under that programme. However, they could not but emphasise that while this might have occurred somewhere in Europe, it had not happened in Lithuania. (d) Lack of evidence demonstrating that the Lithuanian authorities agreed to the running of a secret detention facility by the CIA on Lithuanian territory or cooperated in the execution of the HVD Programme 445. In the Government ’ s submission, not a single high-level State politician or official had in any way admitted to knowing of or agreeing to the involvement of Lithuania in the CIA extraordinary rendition programme. It was true that the SSD officials had given some consideration to the possibility of having requests for assistance from the US authorities in the context of the war on terror but this possibility had proved to be purely theoretical because there had been no requests for the detention of any individuals. In that regard, the Government referred to the statements of the State officials and the SSD officers who had been questioned in the pre-trial investigation. They also relied on the letter of 26 November 2009 written by Mr Adamkus, the former President of Lithuania, to the CNSD in which he had stated that he had never been informed of any CIA prisons in the country (see also paragraph 36 7 above). Nor had any other former President of the Republic had had any such knowledge. In the investigation the Heads of State had testified that they had not known about any transfer of any detainees and had not given their consent to the transportation of any persons held by the CIA. (e) Lack of evidence of Lithuania ’ s knowledge of the CIA HVD Programme at the material time 446. The Government said that they agreed with the Court ’ s conclusions in Husayn (Abu Zubaydah) v. Poland that without the knowledge of the State authorities and their assistance, the CIA HVD Programme could not have been executed, and that the running of the CIA prisons would have been impossible in the countries concerned. However, as stated above, Lithuania had not had any knowledge of such activities on its territory. The fact that in 2005-2006, as the applicant argued, there had been generalised knowledge of the HVD Programme owing to findings of international inquiries and public reports disclosing the nature of the CIA secret scheme, was irrelevant since Lithuania had not been included in any of the inquiries and there had been no CIA prison in the country. 2. The applicant 447. The applicant maintained that the whole body of evidence from numerous sources, such as the international inquiries, recent research into the CIA rendition and secret detention operations, abundant aviation data confirming the CIA planes landings in Lithuania, declassified CIA documents, the 2014 US Senate Committee Report and evidence from the experts heard by the Court conclusively confirmed his allegations. In his submission, it was established beyond reasonable doubt that a CIA secret detention facility – referred to as “Detention Site Violet” in the 2014 US Senate Committee Report – had operated in Lithuania in 2005-2006 and that he had been detained at that facility from 17 or 18 February 2005 to 25 March 2006. (a) As regards the Government ’ s allegation of a lack of credibility of sources of information and evidence before the Court 448. The applicant said that the Government ’ s objection to his reliance on public documents, reports and other material as evidence in this case was unfounded. The Court had on a number of occasions stated that it would freely evaluate all the evidence, and might draw “such inferences as may flow from the facts and the parties ’ submissions”. The Court routinely relied on public source evidence; this was demonstrated, for instance, in El-Masri where the Court had taken into account publicly available information of a similar nature and evidence from a range of other sources, including reports from Amnesty International, Human Rights Watch, the International Helsinki Federation for Human Rights and the ICRC. It had also cited numerous media reports. Consequently, the Government ’ s objections to the nature of the evidence in the case was not based on the Court ’ s established approach to evidence. The Court would take into account all available sources of evidence and determine whether, in the circumstances of cases such as this, taken together they were sufficient to give rise to “strong and concordant inferences” of State responsibility. In the applicant ’ s view, the range of evidence submitted in his case considered as a whole more than satisfied the relevant test. (b) As regards the CIA-linked planes landing in Lithuania between 17 February 2005 and 25 March 2006 449. The applicant considered that the Government ’ s suggestion that the flights referenced in his submissions as being CIA rendition flights, even if chartered by the CIA, could have had other purposes or simply stopped at some places for technical reasons, lacked any support in the facts. While apparently plausible, this assertion had no merit in the context of the assembled data presented as evidence to the Court. A large number of international and regional bodies, human rights organisations and respected and credible media outlets, which had acknowledged the evidence disclosing that rendition flights flew into and out of Lithuania, disagreed. For example, on 11 September 2012 the LIBE Committee, following its April 2012 visit to Lithuania, had issued a resolution noting “new evidence provided by the Eurocontrol data showing that plane N787WH, alleged to have transported Abu Zubaydah, [had] stop[ped] in Morocco on 18 February 2005 on its way to Romania and Lithuania”. It had also noted that analysis of the Eurocontrol data had revealed new information through flight plans connecting Romania to Lithuania, via a plane switch in Tirana, Albania, on 5 October 2005, and Lithuania to Afghanistan, via Cairo, Egypt, on 26 March 2006. This was mirrored in the findings and reports of other international organisations. 450. In the light of the accumulated material before the Court it was evident that the planes passing through Lithuania in February 2005 and March 2006 had been chartered by the US Government in the context and for the purpose of the rendition programme. A clear line of evidence connected these flights to Lithuania. To begin with, all the flights involved in rendition into and out of Lithuania had been chartered by a US company, Computer Sciences Corporation on behalf of the US Government. This prime contract originated in 2002 with another US company, DynCorp Systems and Solutions LLC (DynCorp), and was then inherited by CSC through its purchase of DynCorp in 2004. The US Government ’ s initial contract with DynCorp had given rise to a succession of subcontracts, including the agreement with Capital Aviation of 17 June 2002 and a similar agreement between Sportsflight Air as authorised agent for DynCorp and plane operator Richmor Aviation on 18 June 2002. These companies, along with various other plane operators including Victory Aviation (operating N787WH) and Miami Air International (operating N733MA and N740EH), had thereby established a method and pattern of doing business which had lasted at least until 2006. 451. The February 2005 flights of N787WH and N724CL, travelling from the USA to Lithuania via Morocco, had been arranged under CSC ’ s subcontract with Sportsflight Air Inc. trading as Capital Aviation. These flights corresponded to the dates on which information indicated that the applicant had been transferred from Morocco to Lithuania in early 2005. The March 2006 flights of N733MA and N740EH had also been arranged under CSC ’ s successor subcontract with Sportsflight. Flights organised and billed by Sportsflight and CSC had been the subject of civil litigation in New York, concluding in 2011, between Sportsflight and Richmor Aviation. During this litigation, both parties had made clear that the flights had been part of the rendition programme and that the contractual arrangements under which these flights were provided had been set up to facilitate that programme. 452. Furthermore, all the flights connecting with Lithuania in February 2005 and March 2006, as well as flight N787WH in October 2005, exhibited a common pattern of behaviour designed for the sole purpose of disguising the true flight routes, the so-called “dummy” flight planning. Taking into account, on a cumulative basis, all the available evidence such as the contracts and invoices, the patterns of behaviour, the statements made in the litigation referred to above, the timing of the flights, and the overall context within which rendition flights had been shown to take place, there was a compelling basis on which to conclude that the sole purpose of the flights of N787WH, N724CL, N733MA and N740EH had been to interconnect the CIA ’ s various secret prison locations. In addition, these interconnections had been made at times when, according to authoritative news reports, prisoner transfers had been made between the respective countries. 453. Lastly, even if one were to leave aside the entire significance of the above evidence, in the applicant ’ s view a number of questions would remain. For instance, why, if these had been entirely innocent or “technical” stopovers had the SBGS been prevented from inspecting the planes? Why had the planes been cordoned off by the SSD? Why had a vehicle been seen leaving one of the planes, and the airport, if this had merely been a “technical” stop? (c) As regards the existence of a CIA secret detention facility in Lithuania and the applicant ’ s secret detention in Lithuania 454. In the applicant ’ s submission, the evidence before the Court established beyond reasonable doubt, based on strong and concordant inferences of fact, that Lithuania had housed a CIA secret black-site, a site at which the applicant had been detained between 17 or 18 February 2005 and 25 March 2006. The 2014 US Senate Committee Report had referred to a detention site codenamed “Violet”, which multiple independent investigators had consistently and unequivocally identified as referring to Lithuania, as confirmed by the experts at the fact-finding hearing. The 2014 US Senate Committee Report stated that Detention Site Violet had specifically been developed to ensure that multiple detainees could be interrogated simultaneously, that the site had begun operating as a detention centre in 2005 and that it had been closed down in 2006 due to the lack of medical care for ailing detainees. The report ’ s categorical findings corresponded to and confirmed the credibility of a host of other evidence available at a much earlier stage. This included flight data and contracts, information collected by the Lithuanian Parliament ’ s own Committee on National Security and Defence, the Lithuanian prosecutor ’ s own investigation file, the statements and findings of multiple additional inquiries at the regional and international level and the work of non ‑ governmental organisations, journalists and investigators. 455. At the fact-finding hearing the Court had heard evidence from the experts of the highest calibre who, having investigated and analysed the CIA HVD Programme for many years, had confirmed that, consistent with a cyclical pattern of sudden site closures, Lithuania had undoubtedly set up a secret detention site in 2005 following the closure of the site in Morocco. Lithuania had become, as Mr J.G.S. had described it, the hub for detention of high-value detainees at that point. It had been the experts ’ firm and consistent professional assessments as investigators, that the evidence had showed that Abu Zubaydah had been among those detained in Lithuania. Senator Marty had noted that if one had taken the trouble to reconstruct the story, one could only come to that conclusion. Mr J.G.S. ’ s work had definitively associated Abu Zubaydah with Lithuania and Mr Black had found that the detention of Abu Zubaydah in Lithuania had been beyond reasonable doubt. 456. One aspect of the evidence before the Court, considered in detail by the experts, included evidence from multiple sources that showed the landing of rendition flights in Lithuania on 17 and 18 February 2005, having followed a circuitous route, from the United States via Morocco, where the applicant was known to have been detained at the relevant time. Likewise it showed that on 2 5 March 2006 another rendition flight departed from Lithuania, en route to Afghanistan, where again it was known that the applicant had been detained in 2006. False flight plans had been filed for the Lithuanian leg of these journeys, showing alternative destinations in accordance with standard modus operandi for rendition flights. The Government had argued that there was no evidence that these had been rendition flights. Yet the pattern these flights displayed, the paths they had taken, and the contracts and invoices, combined with other corresponding details, had led to them being consistently identified by investigators, parliamentary and other inquiries, and by the experts of the Court, unequivocally as flights whose sole purpose had been extraordinary rendition. If any doubt remained about whether these had been rendition flights, it had been dispelled in the above-mentioned civil litigation between sub-contractors in US courts where the flight operators had themselves stated, in their pleadings, in clear and explicit terms that this contract had been for rendition flights carried out for the US Government. 457. The dates and routes of these rendition flights and the periods of operation of Detention Site Violet corresponded with the conclusive evidence of the applicant ’ s location prior to and after Lithuania. As the Court noted in Husayn (Abu Zubaydah) v. Poland, the applicant, after being captured in Pakistan, had been transferred to secret CIA detention in Thailand, from there to Poland, and then on to a secret CIA site in Guantánamo Bay. Expert testimony had confirmed earlier reports that in 2004 he had been moved out of Guantánamo Bay – in anticipation of the US Supreme Court ruling granting access to lawyers and habeas corpus review – and he had been transferred to Morocco. As the experts had explained, the Moroccan site had closed in February 2005, prompting the opening of the next site in the cycle, Lithuania, precisely when rendition flights had flown the route from Morocco to Lithuania. In March 2006, the Lithuanian site itself had closed, prompting the transfer of the applicant, like all of the remaining CIA detainees, to Afghanistan. It was from Afghanistan that he had ultimately been transferred back to Guantánamo Bay in September 2006. 458. Referring to the Government ’ s explanations as to the “special cargo” and the purposes served by Project No. 2 given at the public hearing, the applicant said these facts were entirely consistent with his statements and did not really provide any information that would counter his case. In particular, the transportation of the “cargo” was fully consistent with the expert testimony given by Mr J.G.S. in Husayn (Abu Zubaydah), stating that the high-value detainees had been treated as human cargo and that when they had been brought into a country they had not been registered – even if the passengers on the plane had been registered. Likewise, the Government ’ s claim that Project No. 2 had been for a special intelligence purpose was entirely consistent with the purpose of Detention Site Violet and the applicant ’ s submissions in that respect. 459. In conclusion, the applicant contended that multiple strands of corroborating evidence considered together, supportive of the first 2009 media accounts citing CIA insiders, led to the irresistible conclusion that, as confirmed by the experts, Lithuania had hosted Detention Site Violet. It had been set up by the Lithuanian authorities and had been operated with their assistance by the CIA and the applicant had been detained at that site between 17 or 18 February 2005 and 25 March 2006. (d) As regards the Lithuanian authorities ’ agreement to the running of a secret detention facility by the CIA on Lithuanian territory and their complicity in the execution of the HVD Programme 460. The applicant maintained that multiple sources, including the 2014 US Senate Committee Report, the CNSD Findings and press reports, mentioned high-level members of the Government and intelligence agencies as having approved the establishment of the CIA sites. The 2014 US Senate Committee Report made it clear that millions of dollars had been covertly transferred to show appreciation for the country ’ s support for the HVD Programme. 461. Furthermore, the applicant emphasised, for State responsibility to be engaged under the Convention it was not necessary for the highest level official of a State to have known and approved the setting up of the CIA secret “black site” in the country. It was sufficient for the relevant officials within the State to have approved and to have been responsible. In the applicant ’ s view, there was compelling evidence that the Lithuanian State had actively undertaken to facilitate and make possible his rendition to, and secret detention in, Lithuania. (e) As regards Lithuania ’ s knowledge of the CIA HVD Programme at the material time 462. The applicant reiterated that there had been no plausible room for doubt as to Lithuania ’ s knowledge of the nature of the secret detention system in 2005 and 2006. This had been clear from the vast publicly available information, including extensive media coverage which had reverberated around the globe, including in Lithuania, detailing the secret detention programme, specifically identifying Eastern European “black sites”, the nature of the enhanced interrogation techniques, and identifying Abu Zubaydah by name as one the missing “ghost prisoners”. The Marty Inquiry was already underway when the applicant had been detained in Lithuania. To suggest innocent ignorance on the part of the authorities as to what might have been going on in the secret site that they set up for the CIA by 2005 simply beggared belief. 463. In addition, evidence showed that high-level officials had had specific and direct knowledge. For example, the former President had publicly admitted having been asked by the head of intelligence whether he would be willing to bring accused terrorists into the country unofficially. The head of intelligence in response had noted that he had enquired as to the President ’ s position precisely on the basis that he had known what had been going on in the world. In another example, also from 2005, while the applicant was still detained in Lithuania, the Lithuanian Government attended a NATO-EU meeting with Ms Condoleezza Rice; Mr Fava ’ s testimony set out in Husayn (Abu Zubaydah) made it clear that all member States had known about the enhanced interrogation techniques. That had been clear from the records of the meeting. 464. As experts had testified, while not everyone would have known, just as in all other host countries, some certainly had known and had approved. It was beyond reasonable doubt that by 2005 Lithuania had known of the real risk of violations on its territory and evidence demonstrated that the authorities had taken no measures to prevent, to monitor or even to enquire. The parliamentary inquiry concluded that it had been evident that the SSD had not sought to control the CIA ’ s activities in the country and the premises placed at their disposal. It had not monitored or recorded cargoes brought in and out of the country, and it had not controlled the CIA ’ s arrival and departure. This lack of oversight was confirmed by the prosecution file. The Lithuanian authorities had not only failed to exercise due diligence to prevent violations but they had actively intervened to support and enable them. As the evidence showed, again including evidence from the prosecution file, the Lithuanian officials had agreed to, purchased and helped to equip the CIA ’ s secret sites. The Lithuanian officials had provided vital logistics and support for the site, keeping local inquiries at bay. The Lithuanian authorities had intervened to ensure that normal oversight of CIA flights had been lifted by the use of classified letters that had ensured that neither planes, nor passengers, nor cargo had been monitored or inspected. This had been true specifically of the rendition flights identified by the experts as bringing the CIA detainees into the country and taking them out again. B. Joint submissions by Amnesty International (AI) and the International Commission of Jurists (ICJ) on public knowledge of US practices in respect of captured terrorist suspects 465. Referring to the knowledge of the US authorities ’ practices in respect of suspected terrorists attributable to any Contracting State to the Convention at the material time, AI/ICJ pointed to, among other things, the following facts that had been a matter of public knowledge. 466. They stressed at the outset that already on 16 September 2001, in an interview, the US Vice President Richard Cheney had said that, in response to the attacks of 11 September, the US intelligence agencies would operate on “the dark side”, and had agreed that US restrictions on working with “those who [had] violated human rights” would need to be lifted. AI warned in November 2001 that the USA might exploit its existing rendition policy in the context of what it was calling the “war on terror” to avoid human rights protections. From early 2002 it became clear that non ‑ US nationals outside the USA suspected of involvement in international terrorism were at a real risk of secret transfer and arbitrary detention by US forces. 467. In that regard, AI/ICJ submitted that from January 2002 to 2003 the USA had transferred more than 600 foreign nationals to the US Naval Base in Guantánamo Bay, Cuba, with reports from the outset of ill-treatment during transfers, holding them without charge or trial or access to the courts, lawyers or relatives. By July 2005, there were more than 500 men held there. Cases of arbitrary detention and secret transfer continued to emerge during 2002. In April 2002, alongside the case of Abu Zubaydah, arrested in Pakistan and whose whereabouts after transfer to US custody remained unknown AI reported that “the US authorities had transferred dozens of people to countries where they [might] be subjected to interrogation tactics -including torture [...]. In some cases, it [was] alleged that US intelligence agents [had] remained closely involved in the interrogation”. Also, in December 2002, the Washington Post reported on a secret CIA facility at Bagram, Afghanistan, and the CIA ’ s use of “stress and duress” techniques, including sleep deprivation, stress positions and hooding, and the use of renditions by the CIA. Thus, as early as the end of 2002, any Contracting Party was or should have been aware that there was substantial credible information in the public domain that the USA was engaging in practices of enforced disappearance, arbitrary detention, secret detainee transfers, and torture or other ill-treatment. 468. In the years 2003 and 2004 information continued to emerge. In June 2003, for example, AI reported that the CIA had been involved in the arrest in Malawi of five men and their rendition out of that country to an undisclosed location. In August 2003, AI reported that Indonesian national Riduan Isamuddin, also known as Hambali, was being interrogated in US custody in incommunicado detention at an undisclosed location after his arrest in Thailand. In January 2004, the ICRC issued a press release stating that “[b]eyond Bagram and Guantánamo Bay, the ICRC [was] increasingly concerned about the fate of an unknown number of people captured as part of the so ‑ called global war on terror and held in undisclosed locations”. Furthermore, a February 2004 confidential report of the ICRC on Coalition abuses in Iraq, leaked in 2004 and published in the media at that time, found that detainees labelled by the USA as “high-value” were at particular risk of torture and other ill-treatment and that “high value detainees” had been held for months in a facility at Baghdad International Airport in conditions that violated international law. In May 2004, AI publicly denounced as torture the interrogation technique known as “waterboarding” reportedly used against Khalid Sheikh Mohammed, a “high-value detainee” who had by then been held in secret US detention for more than a year following his arrest in Pakistan in March 2003. 469. In June 2004, the Washington Post published a leaked August 2002 memorandum written in the US Department of Justice ’ s Office of Legal Counsel. The memo advised, inter alia, that presidential powers or the doctrines of necessity or self-defence could override the criminal liability for torture under US law, and that a “significant range of acts” would not be punishable as they did not amount to torture. Another government memorandum leaked in 2004 asserted that not applying the Geneva Conventions to “captured terrorists and their sponsors” would reduce the threat of domestic prosecution of US interrogators for war crimes. In June 2004, a December 2002 memorandum signed by the US Secretary of Defense was declassified. It had authorized “counter ‑ resistance” techniques for use at Guantánamo, including stress positions, sleep deprivation, sensory deprivation, stripping, hooding, exploitation of phobias, and prolonged isolation. A 2003 Pentagon Working Group report on “detainee interrogations in the global war on terrorism”, declassified and published in June 2004 after an earlier draft of it was leaked, recommended the use of various techniques, including environmental manipulation, threat of rendition, isolation, sleep deprivation, removal of clothing, exploitation of phobias, prolonged standing, and hooding. 470. In October 2004, AI published a 200-page report on US human rights violations in the “war on terror”, including case details of secret transfers of detainees, the alleged existence of secret US detention facilities, and torture and other ill-treatment. The numerous rendition cases listed included detailed allegations made by Khaled el-Masri. In addition, in its annual reports covering each of the years from 2002 to 2005, AI made multiple references to human rights violations in the context of US counterterrorism operations, not only in the entries on the USA, but also in a number of other country entries. Paper copies of these reports were widely distributed, including to media and governments. For example, copies of the reports were mailed at the time of their publication directly to the President, the Prime Minister, the Minister of the Interior and the Minister of Justice in Vilnius, Lithuania. 471. In the AI/ICJ ’ s submission, by early 2005 it was beyond reasonable doubt that the USA was engaging in human rights violations against detainees, including holding individuals in secret custody at undisclosed locations, and that detainees labelled “high-value” were at particular risk as the USA pursued intelligence on al-Qaeda and associated groups. Consequently, by 2005, any Contracting Party agreeing to host a CIA “black site” on its territory would or should have known that such a site would be part of a programme that involved unlawful transfer, enforced disappearance, and torture or other ill- treatment. Further, any Contracting Party would or should have known that any US assurances that a detainee previously subjected to the US programme would be treated in a manner consistent with international law, in the case of further transfer, lacked credibility. Any State would or should have known that even if not transferred to further undisclosed detention, the alternative for a “high ‑ value” detainee would be indefinite arbitrary detention without charge or committal for trial by military commission with the power to hand down death sentences. C. HFHR submissions 472. The HFHR focused on their experience regarding Poland ’ s involvement in the CIA extraordinary rendition programme. They produced a number of documents, including flight data, concerning eleven landings of the CIA-rendition aircraft in Poland, ten of which had occurred at Szymany military airfield between 5 December 2002 (the date of the applicant ’ s rendition to Poland) and 22 September 2003 (the date of the applicant ’ s rendition from Poland) and one landing of a plane from Kabul in Warsaw en route to Keflavik that occurred on 28 July 2005. D. The parties ’ positions on the standard and burden of proof 473. The parties expressed opposing views on the standard and burden of proof to be applied in the present case. 1. The Government 474. The Government reiterated that there was no evidence that the facts complained of had taken place in Lithuania. In their view, the applicant ’ s allegations could not be considered sufficiently convincing or established beyond reasonable doubt, as required by the Court ’ s case-law. In that regard, the Government referred to the standard of proof applied by the Court in El-Masri (cited above), emphasising that the present case was substantially different in several aspects. In the first place, in the El ‑ Masri case the applicant himself had lodged the case and presented his statements; his account had been supported by a large amount of indirect evidence obtained during the international inquiries and the investigation by the German authorities. As the Court held, Mr El-Masri ’ s case had been “a case of documented rendition”. Secondly, there had been other relevant elements corroborating the applicant ’ s story. Thirdly, the circumstances described by the applicant had been verified and confirmed by other international investigations concerning the applicant, to mention only the Marty and Fava Inquiries. Lastly, the Court had before it a written statement made by one of the State ’ s top officials confirming the facts established in the course of the investigations and the applicant ’ s consistent and coherent description of events. All this material taken together satisfied the Court that there had been prima facie evidence in favour of the applicant ’ s version of events, and, consequently, it found the applicant ’ s allegations sufficiently convincing and established beyond reasonable doubt. In contrast, Mr Abu Zubaydah had failed to produce such evidence and to make a credible claim either before the domestic authorities or before the Court. In view of the foregoing, the Government were confident that the burden of proof should not be shifted to them. 475. The Government further stressed that the applicant ’ s allegations concerning rendition to and from Lithuania, and his secret detention and ill ‑ treatment in CIA secret facilities in Lithuania had been rejected in their entirety as unfounded following the pre-trial investigation carried out by the Prosecutor General ’ s Office. Those proceedings followed the Seimas inquiry. While it was true that the Seimas had come to conclusions that had left some doubt as to whether any CIA prisoners had been transported to and from the country and whether a CIA secret prison had operated on the premises of Project No. 1 and Project No. 2, all such doubts had been dispelled in the criminal investigation. In that context, the Government also drew the Court ’ s attention to the limited competence of the Seimas and the nature of its inquiry as defined in the Constitutional Court ’ s ruling of 13 May 2004, holding that “the Seimas [was] neither an institution of pre-trial investigation under the Constitution, nor the prosecutor ’ s office, nor the court” and that “the conclusions of the Seimas ... investigation ... may not be construed as legal qualification of the actions that [it had] investigated ... and of other circumstances ... elucidated by it”. Consequently, the Seimas findings had not been binding and remained subject to the verification in the prosecutor ’ s investigation. 476. The Government attached particular importance to the prosecutor ’ s conclusion that in the course of the pre-trial investigation no evidence concerning unlawful rendition by the CIA of any persons, including the applicant, to or from Lithuania had been obtained. That decision had been based on a wide range of evidence, including classified sources, conclusively refuting the applicant ’ s version of the events. Those findings, made as they were on a solid evidential basis could not, therefore, be undermined by the mere flight data or other information available in the public domain. 477. In conclusion, the Government asked the Court to hold that there was no prima facie evidence in support of the applicant ’ s version of events and that, accordingly, the burden of proof could not be shifted to them. 2. The applicant 478. The applicant submitted that in his case against Poland, the Court had acknowledged the undeniable evidential challenges that arose in a case of this nature, and how the facts of the case, and the nature of the allegations, conditioned the Court ’ s approach to evidence and proof. As regards the “beyond reasonable doubt” standard, to which the Government referred, the Court had long been clear that this did not have the meaning commonly associated with that term in criminal law and domestic systems. Proof might flow from the existence of sufficiently strong, clear and concordant inferences of presumptions of fact. The Court must adopt an approach consistent with its purpose as a Human Rights Court. Where the events in issue lay wholly, or in large part, within the exclusive knowledge of the domestic authorities, strong presumptions of fact might arise. When prima facie evidence was presented, the burden of proof shifted to the authorities to provide a satisfactory and convincing explanation. 479. In the applicant ’ s view, the evidence in his case more than met the relevant standard of prima facie evidence and created, at a minimum, strong and concordant inferences of fact as to his secret detention on Lithuanian soil. The Government had failed to provide any satisfactory explanation in the face of overwhelming evidence that they had established a “black site” on their territory. Instead, they had engaged in a policy of denial and obfuscation, drawing categorical conclusions that there could not possibly have been detainees on Lithuanian soil. These conclusions were plainly at odds with the evidence before the Court. As the Court in the Polish case had noted, given the nature of the case, the fact that there was no document identifying Abu Zubaydah by name as a detainee on a specific flight or in a specific secret prison site was not surprising and could not determine the outcome in this case. As the evidence plainly showed and as all the three experts had concluded, Abu Zubaydah had been transferred to the Lithuanian “black site” on the relevant dates. E. The Court ’ s assessment of the facts and evidence 1. Applicable principles deriving from the Court ’ s case-law 480. The Court is sensitive to the subsidiary nature of its role and has consistently recognised that it must be cautious in taking on the role of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case (see Imakayeva v. Russia, no. 7615/02, § 113, ECHR 2006 ‑ XIII (extracts); Aslakhanova and Others v. Russia, nos. 2944/06 and 4 others, § 96, 18 December 2012; and El-Masri, cited above, § 154; Al Nashiri v. Poland, cited above, § 393; and Husayn (Abu Zubaydah) v. Poland, cited above, § 393). 481. In assessing evidence, the Court has adopted the standard of proof “beyond reasonable doubt”. However, it has never been its purpose to borrow the approach of the national legal systems which use that standard. Its role is not to rule on criminal guilt or civil liability but on the responsibility of Contracting States under the Convention. The specificity of its task under Article 19 of the Convention – to ensure the observance by the Contracting States of their engagement to secure the fundamental rights enshrined in the Convention – conditions its approach to the issues of evidence and proof. In the proceedings before the Court, there are no procedural barriers to the admissibility of evidence or pre-determined formulae for its assessment. It adopts the conclusions that are, in its view, supported by the free evaluation of all evidence, including such inferences as may flow from the facts and the parties ’ submissions. According to the Court ’ s established case-law, proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Moreover, the level of persuasion necessary for reaching a particular conclusion and, in this connection, the distribution of the burden of proof, are intrinsically linked to the specificity of the facts, the nature of the allegation made and the Convention right at stake. The Court is also attentive to the seriousness that attaches to a ruling that a Contracting State has violated fundamental rights (see, among other examples, Ireland v. the United Kingdom, 18 January 1978, § 161, Series A no. 25; Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 147, ECHR 2005 ‑ VII; Creangă v. Romania [GC], no. 29226/03, § 88, 23 February 2012; and El-Masri, cited above, § 151; Georgia v. Russia (I) [GC], no. 13255/07, §§ 93-94, ECHR 2014 (extracts); Al Nashiri v. Poland, cited above, § 394; Husayn (Abu Zubaydah) v. Poland, cited above, § 394; and Nasr and Ghali v. Italy, no. 44883/09, § 119, 23 February 2016 ). 482. While it is for the applicant to make a prima facie case and adduce appropriate evidence, if the respondent Government in their response to his allegations fail to disclose crucial documents to enable the Court to establish the facts or otherwise provide a satisfactory and convincing explanation of how the events in question occurred, strong inferences can be drawn (see Varnava and Others v. Turkey [GC], nos. 16064/90 and 8 others, § 184, ECHR 2009, with further references; Kadirova and Others v. Russia, no. 5432/07, § 94, 27 March 2012; Aslakhanova and Others, cited above, § 97; Al Nashiri v. Poland, cited above, § 395; and Husayn (Abu Zubaydah) v. Poland, cited above, § 395 ). 483. Furthermore, the Convention proceedings do not in all cases lend themselves to a strict application of the principle affirmanti incumbit probatio. According to the Court ’ s case-law under Articles 2 and 3 of the Convention, where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, for instance as in the case of persons under their control in custody, strong presumptions of fact will arise in respect of injuries and death occurring during that detention. The burden of proof in such a case may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Çakıcı v. Turkey [GC], no. 23657/94, § 85, ECHR 1999-IV; Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII; and Imakayeva, cited above, §§ 114-115; El-Masri, cited above, § 152; Al Nashiri v. Poland, cited above, § 396; Husayn (Abu Zubaydah) v. Poland, cited above, § 396; and Nasr and Ghali, cited above, § 220). In the absence of such explanation the Court can draw inferences which may be unfavourable for the respondent Government (see El-Masri, cited above, § 152). 2. Preliminary considerations concerning the assessment of the facts and evidence in the present case 484. The Court has already noted that it is not in a position to receive a direct account of the events complained of from the applicant (see paragraphs 15-16 above; also compare and contrast with other previous cases involving complaints about torture, ill-treatment in custody or unlawful detention, for example, El-Masri, cited above, §§ 16-36 and 156 ‑ 167; Selmouni v. France [GC], no. 25803/94, § § 13-24, ECHR 1999 ‑ V; Jalloh v. Germany [GC], no. 54810/00, §§ 16-18, ECHR 2006 ‑ IX; and Ilaşcu and Others, cited above, §§ 188-211). 485. The regime applied to High Value Detainees such as the applicant is described in detail in the CIA declassified documents, the 2014 US Senate Committee Report and also, on the basis, inter alia, of the applicant ’ s own account, in the 2007 ICRC Report. That regime included transfers of detainees to multiple locations and involved holding them in continuous solitary confinement and incommunicado detention throughout the entire period of their undisclosed detention. The transfers to unknown locations and unpredictable conditions of detention were specifically designed to deepen their sense of disorientation and isolation. The detainees were usually unaware of their exact location (see Al Nashiri v. Poland, cited above, §§ 397-398; Husayn (Abu Zubaydah) v. Poland, cited above, §§ 397 ‑ 398; and paragraphs 47-5 8, 8 5 and 29 9 above). 486. As held in Husayn (Abu Zubaydah) (cited above, § 397) and as emerges from the material cited above (see paragraphs 90 -16 4 above), since 27 March 2002 the applicant has not had contact with the outside world, save the ICRC team in October and December 2006, the Combatant Status Review Tribunal ’ s members and his US counsel. It has also been submitted that the applicant ’ s communications with the outside world are subject to unprecedented restrictions and that his communications with his US counsel and his account of experiences in CIA custody are presumptively classified. In fact, for the last sixteen years, he has been subjected to a practical ban on communication with others, apart from mail contact with his family which was allowed at some point after his transfer to Guantánamo (see paragraphs 161-163 and 40 7 above). 487. The above difficulties in gathering and producing evidence in the present case caused by the restrictions on the applicant ’ s contact with the outside world and by the extreme secrecy surrounding the US rendition operations have inevitably had an impact on his ability to plead his case before the Court. Indeed, in his application and further written pleadings the events complained of were to a considerable extent reconstructed from threads of information gleaned from numerous public sources. In consequence, the Court ’ s establishment of the facts of the case is to a great extent based on circumstantial evidence, including a large amount of evidence obtained through the international inquiries, considerably redacted documents released by the CIA, the declassified 2014 US Senate Committee Report, other public sources and the testimony of the experts heard by the Court (see also Husayn (Abu Zubaydah) v. Poland, cited above, § 400; and Al Nashiri v. Poland, cited above, § 400). 488. Furthermore, it is to be noted that while the Government firmly denied the applicant ’ s allegations in so far as they concerned Lithuania, they refrained from making any comments on the facts relating to the circumstances preceding his alleged rendition to Lithuania on 17 or 18 February 2005 or following his alleged transfer from the country on 25 March 2006 (see paragraphs 42 3 -44 6 above). However, the facts complained of in the present case are part of a chain of events lasting from 27 March 2002 to 5 September 2006 and concerning various countries. The examination of the case necessarily involves the establishment of links between the dates and periods relevant to the applicant ’ s detention and a sequence of alleged rendition flights to those countries. Accordingly, the Court ’ s establishment of the facts and assessment of evidence cannot be limited to the events that allegedly took place in Lithuania but must, in so far as is necessary and relevant for the findings in the present case, take into account the circumstances occurring before and after his alleged detention in Lithuania (see Al Nashiri v. Poland, cited above, §§ 401-417); and Husayn (Abu Zubaydah) v Poland, cited above, §§ 401-419). 3. As regards the establishment of the facts and assessment of evidence relevant to the applicant ’ s allegations concerning his transfers and secret detention by the CIA before his rendition to Lithuania (27 March 2002 to 17 or 18 February 2005) (a) Period from 27 March 2002 to 22 September 2003 489. The Court has already established beyond reasonable doubt the facts concerning the applicant ’ s capture, rendition and secret detention until 22 September 2003, the date of his rendition on plane N313P from Poland to another CIA secret detention facility (see Husayn (Abu Zubaydah) v. Poland, cited above, §§ 401-404 and 406-419). The relevant passages from Husayn (Abu Zubaydah) containing the Court ’ s findings of fact are cited above (see paragraphs 9 1 and 9 7 above). Some additional elements, which are all fully consistent with the Court ’ s establishment of the facts in that case, can also be found in the 2014 US Senate Committee Report (see paragraphs 9 2 -9 6 and 98 above). (b) Whether the applicant ’ s allegations concerning his secret detention and transfers in CIA custody from 22 September 2003 (transfer out of Poland) to 17 or 18 February 2005 (transfer out of Morocco) were proved before the Court 490. It is alleged that before being rendered by the CIA to Lithuania the applicant had been detained in Guantánamo from 23 September 2003 to Spring 2004 and, subsequently in Rabat, Morocco until 17 or 18 February 2005 (see paragraph 99 above). 491. In Husayn (Abu Zubaydah) Mr J.G.S. testified that on 22 September 2003 the plane N313P had taken the applicant from Szymany, Poland via Bucharest and Rabat to Guantánamo. The plane ’ s destinations to Romania and Morocco had been disguised by the so-called “dummy” flight planning, showing, among other things Constanţa, not Bucharest as the arrival airport in Romania (see Husayn (Abu Zubaydah) v. Poland, cited above, §§ 109 and 312; see also paragraphs 10 3 -10 4 above). In the present case, Mr Black, having analysed the available evidence, testified that “Abu Zubaydah must have ... been taken to Guantánamo on that flight” (see paragraph 108 above). 492. The N313P rendition circuit of 20-24 September 2003 was analysed in detail in Husayn (Abu Zubaydah), where, as stated above, the Court held that on 22 September 2003 Mr Abu Zubaydah had been transferred by the CIA from Poland on board that plane to another CIA secret detention facility elsewhere. It also held that this flight had marked the end of CIA-associated aircraft landings in Poland and the closure of the CIA “black site” codenamed “Quartz” in that country (see Husayn (Abu Zubaydah) v. Poland, cited above, §§ 414 and 419). The collation of data from multiple sources shows that the plane left Washington D.C. on 20 September 2003 and undertook a four-day flight circuit during which it landed in six countries. It arrived in Szymany from Kabul. It flew from Szymany to Bucharest, then to Rabat and from Rabat to Guantánamo on the night of 23 September 2003, landing there in the morning of 24 September 2003 (see paragraphs 10 3 -10 4 and 10 8 above). 493. The 2014 US Senate Committee Report confirms that “beginning in September 2003” the CIA held its detainees at CIA facilities in Guantánamo and that by a – redacted but clearly two-digit – date in April 2004 “all five CIA detainees were transferred from Guantánamo to other CIA detention facilities” pending the US Supreme Court ’ s ruling in Rasul v. Bush which, as the US authorities expected, “might grant habeas corpus rights to the five CIA detainees”. The transfer was preceded by consultations among the US authorities in February 2004. It was recommended by the US Department of Justice (see paragraphs 61 and 1 10 above). 494. At the fact-finding hearing in the present case, Mr J.G.S. explained that the applicant had been transferred from Guantánamo on board the rendition plane N85VM on 27 March 2004. The flight was first part of the CIA double rendition circuit performed by that plane between 27 March and 13 April 2004. On the first circuit some prisoners, including the applicant, were transferred to Rabat directly (see paragraph 10 7 above). Mr Black confirmed that everyone who had been taken to Guantánamo had had to be moved out in March or April 2004 (see paragraph 10 8 ). The experts identified the country to which the applicant had been transferred from Guantánamo as Morocco on the basis of the correlation of the flight data and unredacted information in the 2014 US Senate Committee Report (see paragraphs 10 5-108 above). 495. Furthermore, both experts confirmed that the CIA, due to various disagreements with the Moroccan authorities, had been forced to take all its prisoners out of Morocco in early 2005. In that regard, the 2014 US Senate Committee Report relates “tensions” with a country whose name is redacted. Those tensions arose in connection with the “deterioration of intelligence cooperation” and the treatment of their prisoners by the local authorities, resulting in “cries of pain” being heard by CIA detainees kept in the same detention facility. It states that the CIA detainees were transferred out of the country concerned in 2005; the month was redacted but seems to have comprised eight characters (see paragraphs 10 5 -1 10 above). Both experts indicated February 20 05 as the month in question. Mr J.G.S., referring to the Moroccan detention facility, testified that “it [had been] in this site that Mr Zubaydah found himself in early 2005, specifically February 2005, when the aforementioned clear-out of Morocco [had taken] place” (see paragraph 10 5 above). Mr Black stated that “after a certain time in Morocco, the CIA [had] had too many disagreements with the Moroccan Intelligence Agencies with regard to treatment of prisoners in Morocco. ... And so everyone who [had been] in Morocco [had been] moved out at the latest in February 2005” (see paragraph 10 8 ). 496. In the light of the material in its possession – which has not been as such contested by the Government (see paragraph 48 8 above) – the Court finds no counter evidence capable of casting doubt on the accuracy of the experts ’ conclusions regarding the above sequence of events, the places of the applicant ’ s secret detention and the dates of his transfers during the relevant period. 497. Accordingly, the Court finds it established beyond reasonable doubt that: (1) on 22 September 2003 on board N313P the applicant was transferred by the CIA from Szymany, Poland to Guantánamo, Cuba; (2) from 24 September 2003 to 27 March 2004 the applicant was detained in Guantánamo; (3) on 27 March 2004 on board N85VM the applicant was transferred by the CIA from Guantánamo to Rabat, Morocco; (4) from 27 March 2004 to an unspecified date in the month (redacted in the 2014 US Senate Committee Report), identified by the experts as February 2005, the applicant was detained in Morocco at a facility used by the CIA; and (5) on an unspecified date in February 2005 he was transferred by the CIA from Morocco to another detention facility elsewhere. 4. As regards the establishment of the facts and assessment of evidence relevant to the applicant ’ s allegations concerning his rendition by the CIA to Lithuania, secret detention in Lithuania and transfer by the CIA out of Lithuania (17 or 18 February 2005 to 25 March 2006) (a) Whether a CIA secret detention facility existed in Lithuania at the time alleged by the applicant (17 or 18 February 2005 to 25 March 2006) 498. It is alleged that a CIA secret detention facility, codenamed “Detention Site Violet” operated in Lithuania from 17 or 18 February 2005, the dates on which either or both CIA rendition planes N724CL and N787WH brought CIA detainees to Lithuania, to 25 March 2006, when it was closed following the detainees ’ transfer out of Lithuania on board the rendition plane N733MA (see paragraphs 111-117 and 44 9 -45 9 above). The Government denied that a CIA detention facility had ever existed in Lithuania (see paragraphs 423 -44 6 above). 499. The Court notes at the outset that although the Government have contested the applicant ’ s version of events on all accounts, they have not disputed the following facts, which were also established in the Seimas inquiry and confirmed in the course of the pre-trial investigation conducted in 2010-2011 (see paragraphs 17 4, 19 9, 30 7-349, and 36 7 -3 70 above): (a) In 2002-2005 the CIA-related aircraft repeatedly crossed Lithuania ’ s airspace; according to the CNSD Findings, on at least twenty-nine occasions. (b) In the period from 17 February 2005 to 25 March 2006 four CIA-related aircraft landed in Lithuania: – planes N724CL and N787WH landed at Vilnius International Airport on, respectively, 17 February 2005 and 6 October 2005; – planes N787WH and N733MA landed at Palanga International Airport on, respectively, 18 February 2005 and 25 March 2006. (d) On three occasions the SSD officers received the CIA aircraft and “escorted what was brought by them” with the knowledge of the heads of the SSD: – on 18 February 2005 N787WH, which landed at Palanga airport with five US passengers on board, without any thorough customs inspection of the plane being carried out; according to the CNSD Findings, “no cargo was unloaded from it or onto it”; – on 6 October 2005 N787WH, which landed at Vilnius airport, where a certain R.R., the SBGS officer, was prevented from inspecting the aircraft and no customs inspection of the plane was carried out; and – on 25 March 2006 N733MA, which landed at Palanga airport, but the SBGS documents contained no records of the landing and inspection of the plane, and no customs inspection was carried out. (e) In connection with the landing of N787WH in Vilnius on 6 October 2005 and of N733MA in Palanga on 25 March 2006 the SSD issued classified letters to the SBGS, but the letter regarding the landing on 6 October 2005 was delivered ex post facto, and before that event the SSD had never issued such letters. (f) The SSD high-ranking officers provided the US officers with unrestricted access to the aircraft at least on two occasions, including on 6 October 2005. (g) In 2002-2006 the SSD and the CIA were in “partnership cooperation”, which involved the “equipment of certain tailored facilities”, i.e. Project No. 1 and Project No. 2. (h) The facilities of Project No. 1 were installed in 2002. (i) The SSD started the implementation of Project No. 2 in cooperation with the CIA at the beginning of 2004; this involved assisting the CIA in the acquisition of the land and building in Antaviliai and carrying out construction work in order to equip the facility; the work was carried out by contractors brought by the CIA to Lithuania; the materials and equipment for the facility were brought to Lithuania by the CIA in containers. (j) Project No. 1 and Project No. 2 were fully financed by the CIA. (k) Witnesses A and B2, politicians questioned in the criminal investigation, were addressed in connection with “the temporary possibility of holding persons suspected of terrorism ” and “as regards the transportation and holding [of] people in Lithuania”. 500. The Court further notes that, according to the material in the case file, the first public disclosure of Lithuania ’ s possible participation in the CIA secret detention scheme appeared on 20 August 2009 in the ABC News report. The report was followed by a more detailed publication of 18 November 2009. The reports mentioned “CIA officials directly involved in or briefed on the highly classified [HVD] programme”, “a former US intelligence official”, “one of the former CIA officers involved in the secret prison program”, “Lithuanian officials” and “a current Lithuanian government official” as their sources. The August 2009 ABC News report stated that “Lithuanian officials [had] provided the CIA with a building on the outskirts of Vilnius ... where as many as eight suspects [had been] held for more than a year until late 2005 when they [had been] moved because of public disclosures”. The reporters said that they had viewed flight logs – shown to them by “one of the former CIA officers involved in the secret prison program”, confirming that CIA planes made “repeated flights into Lithuania during that period” and that the purpose of the flights had been “to move terrorist suspects”. The officer told the reporters that the CIA had “arranged for false plans to be submitted to European aviation authorities”. It was also reported that “the prison in Lithuania [had been] one of eight facilities the CIA set up after 9/11 to detain and interrogate al Qaeda operatives captured around the world” (in this connection, see also paragraph 1 66 above). In November 2009 ABC News reported that a current Lithuanian government official and a former US intelligence official had told them that the CIA had “built one of its secret European prisons inside an exclusive riding academy outside Vilnius”. ABC News stated that “the CIA [had built a thick concrete wall inside the riding area. Behind the wall, it [had] built what one Lithuanian source [had] called a ‘ building within a building ’. On a series of thick concrete pads, it [had] installed what a source called ‘ prefabricated pods ’ to house prisoners, each separated from another by five or six feet. Each pod included a shower, a bed and a toilet. Separate cells were constructed for interrogations. ... Intelligence officers working at the prison [had been] housed next door in the converted stable ... Electrical power for both structures [had been] provided by a 2003 Caterpillar autonomous generator. All the electrical outlets in the renovated structure [had been] 110 volts, meaning that they [had been] designed for American appliances” (see paragraphs 25 8 -25 9 above). 501. The Government have contested the evidential value of the above publications and, in general terms, expressed reservations as to the evidential value of media and other reports in the public domain (see paragraphs 42 3 -42 4 above). However, at the material time the Lithuanian authorities apparently considered the August 2009 ABC News disclosure sufficiently credible, given that the report prompted the joint meeting of the CNSD and Committee on Foreign Affairs on 9 September 2009 and the further parliamentary inquiry, which was opened on 5 November 2009. In the course of the inquiry the CNSD interviewed fifty-five persons, including the highest authorities of the State, and obtained various evidence, including classified information (see paragraphs 167-176 above). The CNSD, made the following findings: (a) In 2002-2005 the aircraft that had been linked in official investigations to the transportation of CIA detainees had crossed Lithuania ’ s airspace on repeated occasions. (b) It had not been established whether CIA detainees had been transported through Lithuania; however, conditions for such transportation had existed. (c) The SSD had received a request from the CIA to equip facilities suitable for holding detainees. (d) The SSD, in Project No. 1, had created conditions for holding detainees in Lithuania; ”facilities suitable for holding detainees [had been] equipped, taking account of the requests and conditions set out by the partners”; however, according to evidence in the CNSD ’ s possession the premises had not been used for that purpose. (e) While persons who had given evidence to the CNSD had denied that there existed any preconditions for holding and interrogating detainees at Project No. 2, the layout of the building, its enclosed nature and protection of the perimeter, as well as the fragmented presence of the SSD staff at the premises allowed the CIA officers to carry out activities without the SSD ’ s control and to use the infrastructure at their discretion. The above Findings were endorsed by the Seimas in its Resolution of 19 January 2010 (see paragraph 17 4 above). 502. The Government submitted that the CNSD Findings had been subsequently verified in the pre-trial investigation conducted in 2010-2011. According to the Government, the investigation, based on the testimony of witnesses who had been directly involved in the implementation of Project No. 1 and Project No. 2, and in the landing and departure procedures for CIA flights, had conclusively established that there had been no CIA secret detention centre in Lithuania, that the facilities of Project No. 1 and Project No. 2 had not been, and could not have been, used for holding detainees and that there had been no evidence of CIA detainees ever being held in the country. The sole purpose of the CIA planes landing was, in the Government ’ s words, the delivery of a “special cargo”, described as a “connection” or “communication” equipment providing the SSD and the CIA “with technical services in order to implement their joint project”. The Government also attached importance to the fact that Lithuania had not been the object of any international inquiries conducted into the European countries ’ collusion in the CIA HVD Programme (see paragraphs 42 6 -44 6 above). 503. As regards the latter argument, the Court observes that it is true that, on account of the fact that the allegations of the CIA secret prison being run in Lithuania emerged only in August 2009 (see paragraphs 25 8 and 500 above), Lithuania had not been included in any of the inquiries carried out by the Council of Europe and the European Parliament in 2005-2007 (see paragraphs 26 9-286 above). Nor were any international investigations of a scale comparable to the Marty Inquiry and the Fava Inquiry subsequently conducted into the allegations concerning Lithuania. 504. However, the investigative work of the experts involved in the 2010 UN Joint Study encompassed Lithuania ’ s possible involvement in the CIA scheme of secret prisons. According to the UN experts, research for the study, including data strings relating to the country, appear to confirm that it was integrated into the CIA extraordinary rendition programme in 2004 (see paragraph 303 above). 505. The CPT delegation visit to Lithuania on 14-18 June 2010 and the 2011 CPT Report involved the issue of alleged CIA secret prisons. While the central focus for the delegation was to try to assess the effectiveness of the pre-trial investigation which was at that time pending, the CPT considered it important to visit the “two tailored facilities” identified in the CNSD Findings as Project No. 1 and Project No. 2. The 2011 CPT Report, referring to Project No. 2, described the facilities as “far larger than” Project No. 1” and consisting of “two buildings ... connected and divided into four distinct sectors”. In one of the buildings, “the layout of premises resembled a large metal container enclosed with a surrounding external structure”. The CPT refrained from providing a more detailed description of the facilities but concluded that even though when visited by the delegation the premises did not contain anything that was “highly suggestive of a context of detention”, both Project No. 1 and Project No. 2 could be adapted for detention purposes “with relatively little effort” (see paragraphs 3 50 -3 52 above). 506. It is also to be noted that since at least early 2012, the European Parliament, through the LIBE Committee, has conducted an inquiry into allegations concerning Lithuania ’ s complicity in the CIA extraordinary rendition scheme. As part of the inquiry, the LIBE delegation visited Lithuania and carried out an inspection of Project No. 2 which, in the words of the LIBE Rapporteur, Ms Flautre, was described as a “kind of building within the building, a double-shell structure” equipped with an “enormous air-conditioning system and a water-pumping system, the purpose of which [was] not evident” (see paragraph 2 89 above). That visit gave rise to concerns subsequently expressed in the 2012 EP Resolution, which stated that “the layout [of Project No. 2] and installations inside appear[ed] to be compatible with the detention of prisoners” (see paragraph 2 90 above). 507. Furthermore, the conclusions of the pre-trial investigation relied on by the Government and the Government ’ s explanation of the purpose of the CIA planes landing seem to have been contradicted by other evidence in the Court ’ s possession, including material available in the public domain and the experts ’ testimony. To begin with, as regards the purpose of the CIA-linked planes landing in Lithuania at the material time, the extensive flight data produced by the applicant, including the data in the 2015 Reprieve Briefing, and expert evidence show that in respect of three out of four planes that landed in and departed from Vilnius and Palanga airports during the period from 17 February 2005 to 25 March 2006 the CIA used its methodology of “dummy” flight planning, that is to say, a deliberate disguise of their true destinations by declaring in the flight plans the route that the planes did not, nor even intended to, fly (see paragraphs 12 3 -12 5 and 1 30-133 above). According to expert evidence obtained by the Court in Al Nashiri v. Poland and Husayn (Abu Zubaydah) v. Poland, as well as in the present case, the methodology of disguising flight planning pertained primarily to those renditions which dropped detainees off at the destination – in other words, at the airport connected with the CIA secret detention facility (see Al Nashiri v. Poland, cited above, §§ 316-318; and Husayn (Abu Zubaydah) v. Poland, cited above, § 310-312; see also paragraph 12 7 above). (a) Significantly, the N787WH ’ s circuit executed on 15-19 February 2005 included two disguised – undeclared – destinations on the plane ’ s route from Rabat to Palanga. The first disguised destination was Bucharest, whereas the flight plan was filed for Constanţa; the second one was Palanga, whereas the flight plan was filed for Gothenburg (see paragraph 12 3 above). (b) The N787WH ’ s circuit on 1-7 October 2005 was disguised by both the “dummy” flight planning and switching aircraft in the course of the rendition operation, also called a “double-plane switch” – that is to say, another CIA method of disguising its prisoner-transfers, which was designed, according to expert J.G.S., to avoid the eventuality of the same aircraft appearing at the site of two different places of secret detention (see paragraph 129 above; see also Al Nashiri v. Romania, cited above, § 135 ). The experts testified that the “double-plane switch” operation had been executed on 5-6 October 2005 in Tirana by two planes – N308AB, which arrived there from Bucharest after collecting detainees from the CIA “black site” in Romania, and N787WH. The CIA detainees “switched” planes in Tirana and they were transferred from N308AB onto N787WH for the rendition flight. On its departure from Tirana, N787WH filed a false plan to Tallinn in order to enable the flight to enter Lithuanian airspace, but its true destination was Vilnius, where it landed on 6 October 2005 in the early hours (see paragraphs 11 4, 1 30-131 and 1 40 above). In relation to this flight it is also noteworthy that the flight data submitted by the Lithuanian aviation authorities to the CNSD in the course of the Seimas inquiry indicated that N787WH had arrived from Antalya, Turkey (see paragraph 17 4 above). Witnesses questioned in the pre-trial investigation gave inconsistent indications as to where the plane arrived from. For instance, Witness B3 spoke of an “unplanned aircraft from Antalya” (see paragraph 31 5 above). Witness B4 (“person B”) said that it had “arrived from Tallinn without passengers” and that it had “arrived in Tallinn from Antalya” (see paragraph 31 6 above). The Administration of Civil Aviation, for its part, informed the prosecutor that “they could [have] confuse[d] the code of Antalya and Tirana due to their similarity” (see paragraph 18 3 above). (c) According to the experts, a combination of “dummy” flight planning and aircraft switching methodologies was likewise used in connection with the N733MA flight on 25 March 2006 (see paragraphs 134 and 140 above). The Palanga airport records indicated that on that date the plane had arrived in Palanga from Porto and that it had left for Porto on the same day (see paragraphs 12 5 and 17 4 above). However, as stated in the 2015 Reprieve Briefing and confirmed by the experts at the fact-finding hearing, a false plan was filed for Porto, whereas the plane flew to Cairo where it made connection with N740EH, another CIA rendition plane. The 2015 Reprieve Briefing also states that the documents relating to the planning of these two trips showed complex attempts to disguise the fact that the purpose of the trips was to provide a connection between Lithuania and Afghanistan (see paragraph 12 5 above). In the Court ’ s view, the CIA ’ s above repeated, deliberate recourse to the complex flight-disguising methodologies typical of rendition flights transporting detainees to “black sites” does not appear to be consistent with the stated purpose of the CIA-linked planes landing in Lithuania, which according to the Government had been merely the delivery of “special cargo”, described as “communication” or “connection” equipment”, in the context of the routine intelligence cooperation (see paragraphs 42 7 -4 32 above). 508. The Court further observes that in respect of the above planes the authorities applied a distinct practice, which resembles the special procedure for landings of CIA aircraft in Szymany airport followed by the Polish authorities in December 2002-September 2003 and found by the Court to have been one of the elements indicative of the State ’ s complicity in the CIA HVD Programme (see Al Nashiri v. Poland, cited above, §§ 418 and 442; and Husayn (Abu Zubaydah) v. Poland, cited above, §§ 420 and 444). In particular, as in Poland, the planes were not subject to any customs or the border guard control. On 6 October 2005 the SBGS officer R.R. was prevented from carrying out the N787WH plane inspection (see paragraphs 17 4 and 36 6 above). In connection with the arrivals of the “partners ’ ” and the SSD officers at the airports, classified letters asking for access to the aircraft were issued to the SBGS at least on two occasions – one ex post facto, following the above incident with the SBGS officer on 6 October 2005 and one in connection with the N733MA landing in Palanga on 25 March 2006. Also, the rendition planes landing involved special security procedures organised by the CIA ’ s counterpart in Lithuania. As confirmed by the SSD officers questioned in the course of the pre-trial investigation, they used to escort “the partners”, that is to say, the CIA teams to and from Vilnius and Palanga airports. In that connection, the CIA asked the SSD to make security arrangements. In the airport, the CIA vehicles approached the aircraft, whereas the SSD ’ s escorting vehicles remained at some distance (see paragraphs 17 4, 18 4, 31 5, 329, 337, 34 6, 366, 370 -3 71 above). 509. At the fact-finding hearing held in the present case the experts, Mr J.G.S. and Mr Black, confirmed categorically that – beyond reasonable doubt – a CIA secret detention facility had operated in Lithuania in the period indicated by the applicant. In the same categorical terms they identified Lithuania as a country hosting the CIA secret detention facility codenamed “Detention Site Violet” in the 2014 US Senate Committee Report (see paragraphs 12 8-145 above). The 2015 Reprieve Briefing, relying on research into the CIA rendition operations, the analysis of the public data regarding the CIA prisoners ’ transfers and the unredacted parts of the report, likewise concluded that it had been established beyond reasonable doubt that one of the facilities adapted by the CIA in Lithuania had been used to hold prisoners and that Detention Site Violet had been located in Lithuania (see paragraphs 1 20 -12 2 above). 510. The experts and the Briefing gave the same time-frame – February 2005-March 2006 – for the CIA ’ s secret prison operation. The Briefing stated that the opening of the site had been marked by the transfer of prisoners which could have been effected on either or both of two CIA rendition aircraft – N724CL, which landed in Vilnius on 17 February 2005, or N787WH, which landed in Palanga on 18 February 2005 (see paragraph 123 above). Both experts stated that the opening of the CIA “black site” in Lithuania had been prompted by the disagreements with the Moroccan authorities in the administering of a secret detention site used by the CIA in Rabat, which had led to the transfer of the CIA detainees out of Morocco (see paragraphs 12 9, 13 2-133 and 13 9-141 above). 511. In that regard, Mr J.G.S. referred to the “cyclical nature” of the CIA detention sites and explained that the CIA HVD Programme had included several junctures “at which one detention close[d] abruptly and another open[ed] in its place”. In his view, “17-18 February 2005 had been the critical juncture at which CIA detention operations overseas had been dramatically overhauled”. In the light of the flight data of February 2005, there were only two destinations for detainees being taken from Morocco – Romania and Lithuania. Mr J.G.S. reached the “incontrovertible conclusion” that when the facility in Morocco had been finally closed, the only possibility was that Detention Site Violet in Lithuania then took the detainees from Morocco in conjunction with Detention Site Black in Romania (see paragraphs 12 9 -13 7 above). He further stated that references in the 2014 US Senate Committee Report had “accorded completely with the timings, with the character and with the chronological progression of detention operations in respect of Lithuania”. He referred to the report ’ s sections stating that Detention Site Violet had been created in a “separate country” from any of the other detention sites mentioned therein. This, in his view, had opened a new territory in the CIA HVD Programme and referred to a site that had endured beyond the life span of Detention Site Black in Romania which, according to report, was closed shortly after the Washington Post publication of 2 November 2005. In that connection, Mr J.G.S. also testified that the two projects in Lithuania aimed at providing support to the CIA detention operations, referred to in the Seimas inquiry as Project No. 1 and Project No. 2, corresponded to the description of two facilities in the country hosting Detention Site Violet. In particular, the report stated that by mid-2003 the CIA had concluded that its completed but still unused holding cell in the country – by which it had meant Project No. 1 – had been insufficient. It further stated that the CIA had thus sought to build a new expanded facility in the country. This corresponded precisely with the description of the provenance of Project No. 2 as given in the CNSD Findings (see paragraph 13 3 above). 512. Mr Black said that the report clearly indicated that Detention Site Violet had operated from February 2005 to March 2006. The site had been in a country where there had previously been another site that had never been used. This detail of there having been two sites, one never used and one that had been used between February 2005 and March 2006 corresponded accurately with the parliamentary inquiry ’ s findings, stating that “partners” – the CIA – had equipped two sites. His research established that flights went into and out of Lithuania precisely at the time that the prisoners were said to have been moved into and out of Detention Site Violet. This corresponded with flights into and out of Lithuania in, firstly, February 2005, then in October 2005 and lastly in March 2006 (see paragraph 1 40 above). Mr Black added that, taking into account the whole weight of various indicators, “the only solution that ma[d]e any sense is that the solution that indeed the site in Lithuania [had] operated at the times that we [had] stated and [had been] serviced by the flights that we [had] stated” (see paragraph 14 4 above). 513. In that context the Court would also note that, as shown by the evidence referred to above, the 17-18 February 2005 flights were followed by the landing on 6 October 2005 of the plane N787WH, which, according to the experts, transferred CIA detainees, via a “double-plane switch” operation in Tirana, from the CIA facility codenamed “Detention Site Black” in the 2014 US Senate Committee Report and located in Bucharest. Mr Black added that Khalid Sheikh Mohammed had been transferred from Romania to Detention Site Violet in Lithuania on that plane (see paragraphs 1 30 -13 1 and 14 3 -14 4 above). 514. The experts were not in complete agreement as to which date – 17 or 18 February 2005 – was the one definitely marking the opening of the CIA “black site” in Lithuania. Mr J.G.S. considered that it was more likely that the flight of N734CL on 17 February 2005 signified the opening of the “black site”, since it had landed in Vilnius and Vilnius was the airport physically associated with Antaviliai, the location of the CIA facility. However, he did not rule out the possibility that another airfield, Palanga, may have been used in conjunction with Vilnius (see paragraphs 1 30, 13 4 and 13 7 above). Mr Black, for his part, was categorical in stating that the transfer of detainees from Morocco to Lithuania had been executed by the N787WH flight into Palanga on 18 February 2005 (see paragraphs 14 1 -14 2 above). However, the Court does not find it indispensable to rule on which specific date the CIA site in Lithuania opened given that, according to the evidence before it, there were only these two, closely situated, dates on which it could have happened. 515. As regards the date marking the end of Detention Site Violet ’ s operation, both Mr J.G.S. and Mr Black stated that it had been closed as a result of medical issues experienced by CIA detainees, who had been refused medical treatment in the country, as described in the 2014 US Senate Committee Report. The experts linked the closure to the rendition mission executed by the plane N733MA, which had landed in Palanga on 25 March 2006. They stated that it had taken the CIA prisoners via Cairo by means of an aircraft switching operation to another detention facility, which they unambiguously identified as “Detention Site Brown” located in Afghanistan. The 2015 LIBE Briefing likewise stated that the above transfer had matched the closure of Detention Site Violet. In that regard, it also referred to the passages in the 2014 US Senate Committee Report, stating that the site had been closed as a result of lack of available medical care in the “five-character redacted” month in 2006 – the redacted month could only be “March” or “April” on account of the length of the redaction (see paragraphs 12 2 -12 5 and 12 8 -14 5 above). 516. As regards the physical location of Detention Site Violet, both Mr J.G.S. and Mr Black stated that, beyond reasonable doubt, it had been located in Antaviliai, a neighbourhood of Vilnius, in the former horse-riding academy converted into a customised CIA detention facility, the construction of which had been supervised by the CIA “afresh”. Mr Black, who in 2011-2012 had made several trips to Antaviliai to interview local people, said it was clear from those interviews that the Americans had been there, had been fitting the site out, had been guarding the place and that vehicles with tinted windows had been coming and going (see paragraphs 13 7 and 1 40 above). 517. Lastly, the experts, on the analysis of the 2014 US Senate Committee Report and recently declassified CIA material, also established that at least five CIA prisoners were held at Detention Site Violet and conclusively identified three of them – Mustafa al-Hawsawi, who was explicitly mentioned in the report in connection with medical issues experienced at that site, Khalid Sheikh Mohammed and the applicant (see paragraphs 13 3, 13 5 and 14 1 above). 518. The Court observes that the 2014 US Senate Committee Report includes several references to Detention Site Violet. It clearly refers to two detention facilities in the country hosting that site: one completed but, “by mid-2003”, still unused and considered by the CIA as insufficient “given the growing number of CIA detainees in the program and the CIA ’ s interest in interrogating multiple detainees at the same detention site” and one “expanded” which the CIA “sought to build”. In that connection, the CIA offered some redacted sum of USD million “to ‘ show appreciation ’ ... for the ... support” for the CIA HVD Programme (see paragraph 14 7 above). That information is consistent with evidence from witnesses M, N, O and P, who were questioned in the criminal investigation. They confirmed that in 2003 N and O had been assigned to assist their CIA partners in finding suitable premises for a joint project – an “intelligence support centre”– in respect of which the partners had “used to cover all expenses”. According to Witness P, in 2002-2003 the “partners” had come and proposed to organise a joint operation, “to establish the premises in Lithuania for the protection of secret collaborators”. Witness O said that the CIA partners had chosen the premises which had then become Project No. 2 and that they had started to come in Spring 2004, had carried out the work themselves and had brought material and the equipment in the containers (see paragraphs 333 ‑ 33 7 above). 519. The 2014 US Senate Report further states that Detention Site Violet “opened in early 2005” (see paragraph 14 8 above). This element corresponds to the dates of the landings of the rendition planes N724CL and N787WH – 17 and 18 February 2005. It also corresponds to the statement of Witness S, who testified that Project No. 2 had been “established at the beginning of 2005” (see paragraph 3 41 above). The closure of Detention Site Violet is mentioned in the report in a specific context and chronology, namely “press stories”, in particular the Washigton Post publication of 2 November 2005 that led to the closure of Detention Site Black and “the CIA ’ s inability to provide emergency medical care” due to the refusal of the country hosting Detention Site Violet to admit Mustafa al-Hawsawi, one of the CIA detainees, to a local hospital. This refusal, according to the report, resulted in the CIA ’ s having sought assistance from third-party countries in providing medical care to him and “four other CIA detainees with acute ailments”. In relation to the Washington Post publication, the report gives a fairly specific time-frame for the closure of Detention Site Black, which occurred “shortly thereafter”. However, Detention Site Violet still operated in “early January 2006”. At that time “the CIA was holding twenty-eight detainees in its two remaining facilities, Detention Site Violet ... and Detention Site Orange”. Detention Site Violet was closed in 2006, in the month whose name comprised five characters which were redacted in the report (see paragraph 14 9 above). As noted in the 2015 Reprieve Briefing, there are only two possibilities: the relevant month could be either “March” or “April” 2006. 520. Considering the material referred to above as whole, the Court is satisfied that there is prima facie evidence in favour of the applicant ’ s allegation that the CIA secret detention site operated in Lithuania between 17 or 18 February 2005 and 25 March 2006. Accordingly, the burden of proof should shift to the respondent Government (see El-Masri, cited above, §§ 154-165 and paragraph 4 82 above). 521. However, the Government have failed to demonstrate why the evidence referred to above cannot serve to corroborate the applicant ’ s allegations. Apart from their reliance on the conclusions of the criminal investigation of 2010-2011 and, in particular, the testimony of witnesses who, as the Government underlined, had all consistently denied that any transfers of CIA detainees had taken place or that a CIA had run a secret detention facility in Lithuania, they have not offered convincing reasons for the series and purpose of the CIA-associated aircraft landings at Vilnius and Palanga between 17 February 2005 and 25 March 2006, the special procedures followed by the authorities in that connection and the actual purpose served by Project No. 2 at the material time (see paragraphs 42 4 ‑ 4 43 above). 522. The witness testimony obtained in the criminal investigation is the key evidence adduced by the Government in support of their arguments (see paragraphs 30 7-349 above). The Court has not had the possibility of having access to full versions of the testimony since the relevant material was and still is classified. It has nevertheless been able to assess that evidence on the basis of a summary description produced by the Government (see paragraphs 30 4 -30 6 above). Having considered the material submitted, the Court finds a number of elements that do not appear to be consistent with the version of events presented by the Government. 523. First, the Government asserted that both Project No. 1 and No. 2 were found to have been completely unsuitable for secret detention (see paragraphs 43 3 -4 42 above). The Court does not find it necessary to analyse in detail the purposes actually served by Project No. 1 or determine whether or not that facility was used, as the Government argued at the oral hearing, for “extraction” or “exfiltration” of secret agents or otherwise, since in the present case it is not claimed that CIA detainees were held in that facility. It thus suffices for the Court to take note of the CNSD ’ s conclusion that in Project No. 1 “conditions were created for holding detainees in Lithuania” (see paragraph 17 4 above). 524. Secondly, as regards Project No. 2, the Government submitted that while the exact purpose served by the premises at the material time could not be revealed since it was classified, the witnesses had unequivocally confirmed that no premises suitable for detainees had been located there. Moreover, access to the premises had been under the permanent surveillance of the SSD and there had been no secret zones inaccessible to the SSD officers in the building. This excluded any possibility of unauthorised access or holding detainees in the premises (see paragraphs 43 6 -4 41 above). However, the Court notes that Witnesses N and O, the SSD officers assigned to assist the CIA partners, who escorted them to and from the airports and who were also responsible for supervision of the premises, said that they had not visited all the rooms. Witness N said that he had not had access to the “administration area”. O was not given access to all the premises. Moreover, the building was apparently not used for the purpose of the declared “joint operation” of an intelligence support centre. The only Lithuanian intelligence personnel present in the building were the three SSD officers M, N and O, who supervised the building on changing shifts even if nobody was there. Witness O stated that he had not known who had arrived at the premises or “with what they had been occupied with”. Witness N “was not aware of the contents of the operations” that were carried out in Project No. 2. Witnesses N and O “actively supervised” the building until the second half of 2005 but then the number of the CIA partners ’ visits decreased (see paragraphs 33 3 -33 7 above). 525. As regards the Government ’ s explanation that the premises were acquired for the SSD ’ s needs and used for “short-term meetings” with “their guests” (see paragraph 43 9 above), the layout of one of the buildings at Project No. 2, depicted by the CPT as “a large metal container enclosed within a surrounding external structure” and by the LIBE delegation as “a kind of building within the building” (see paragraphs 28 9 and 3 52 above) does not strike the Court as being a structure typical for the declared purpose. Also, no convincing explanation has been provided as to why Project No. 2, claimed to have been designated for an “intelligence support centre” and reconstructed with evidently considerable effort and expense on the part of the CIA had – according to the witnesses – been virtually unused by the SSD or their partners throughout 2005 (see paragraphs 33 3 -33 8 and 3 41 above). 526. The Government further argued that in the light of abundant evidence it had been established in the criminal investigation that the purpose of two CIA-linked flights into Palanga, alleged to have transported the applicant to and out of Lithuania, namely N787WH and N733MA, which had taken place on, respectively, 18 February 2005 and 25 March 2006 had been the delivery of a “special cargo”. The object of the delivery was “special equipment for a special investigation department” in a number of boxes, which had all been of the same size, one metre long (see paragraphs 42 7 -4 32 above). 527. However, the witness statements relied on are not only partly inconsistent with each other but they also do not fully support the Government ’ s account. Furthermore, the Government ’ s account is at variance with evidence collected in the course of the parliamentary inquiry. In this regard, the Court would refer to testimony given by the SSD officers involved in escorting “cargo” and the CIA partners to and from the Lithuanian airports and to the CNSD Findings. 528. As regards the Government ’ s submission that the purpose of the flight N787WH which landed in Palanga on 18 February 2005 was the delivery of cargo containing the “connection” or “communication” equipment (see paragraphs 42 8 -4 32 above), the Court notes that none of the witnesses heard in the criminal investigation referred to any “delivery of cargo” to Lithuania in relation to the plane in question (see paragraphs 333 ‑ 337 and 346 above). It further notes that the Government ’ s contention stands in contrast with the CNSD Findings, which in the light of the evidence gathered in the inquiry, established that “no cargo was unloaded from it or onto it” (see paragraph 17 4 above). However, as confirmed by the 2010 SBGS letter, “five US citizens arrived in the Republic of Lithuania on that plane” (see paragraph 3 71 above). 529. Moreover, the statements made by witnesses V and O do not support the Government ’ s contention that the purpose of the flight N733MA into Palanga on 25 March 2006 was likewise “to deliver equipment” for the Lithuanian “special investigation department”. On the contrary, the two escorting officers clearly related the loading of a “cargo” onto the CIA aircraft from the CIA partners ’ vehicles (see paragraphs 33 3 -33 7 and 34 6 above). This happened in the course of what was called an “operation”, which suggests that the activities involved in the aircraft landing and loading were not quite of a routine nature. As in respect of the other CIA aircraft landings referred to above (see paragraphs 50 7 -50 8 above), the special procedure, without any customs or SBGS control, had been applied. 530. Having regard to the inconsistency of the Government ’ s version with the witness statements and the factual findings made by the Lithuanian Parliament and in the light of the documentary and expert evidence analysed in detail above, the Government ’ s explanations as to the purposes served by the CIA rendition flights landing in Lithuania between 17 February 2005 and 25 March 2006 and the facility Project No. 2 cannot be regarded as convincing. 531. In view of the foregoing and taking into account all the elements analysed in detail above, the Court concludes that the Government have not produced any evidence capable of contradicting the applicant ’ s allegations. In particular, they have not refuted the applicant ’ s argument that the planes N724CL, N787WH and N733MA that landed in Lithuania between 17 February 2005 and 25 March 2006 served the purposes of the CIA rendition operations and the conclusions of the experts heard by the Court, categorically stating that the aircraft in question were used by the CIA for transportation of prisoners into Lithuania. Nor have they refuted the applicant ’ s assertion that the above rendition flights marked the opening and the closure of a CIA secret prison referred to in the 2014 US Senate Report as “Detention Site Violet”, which was conclusively confirmed by expert evidence to the effect that Detention Site Violet was located in Lithuania and operated during the period indicated by the applicant (see also and compare with Al Nashiri v. Poland, cited above, §§ 414-415; and Husayn (Abu Zubaydah) v. Poland, cited above, §§ 414-415). 532. Consequently, the Court considers the applicant ’ s allegations sufficiently convincing and, having regard to the above evidence from various sources corroborating his version, finds it established beyond reasonable doubt that: (a) a CIA detention facility, codenamed Detention Site Violet according to the 2014 US Senate Committee Report, was located in Lithuania; (b) the facility started operating either from 17 February 2005, the date of the CIA rendition flight N724CL into Vilnius airport, or from 18 February 2005, the date of the CIA rendition flight N787WH into Palanga airport; and (c) the facility was closed on 25 March 2006 and its closure was marked by the CIA rendition flight N733MA into Palanga airport, which arrived from Porto, Portugal and, having disguised its destination in its flight plan by indicating Porto, on the same day took off for Cairo, Egypt. (b) Whether the applicant ’ s allegations concerning his rendition to Lithuania, secret detention at the CIA Detention Site Violet in Lithuania and transfer from Lithuania to another CIA detention facility elsewhere were proved before the Court 533. It is alleged that the applicant was transferred to Lithuania from Rabat, Morocco either on 17 February 2005 on board N724CL or on 18 February 2006 on board N787WH and that he had been secretly detained at Detention Site Violet in Lithuania until 25 March 2005, when he had been transferred out of Lithuania on board N733MA (see paragraphs 11 2 ‑ 117 above). (i) Preliminary considerations 534. The Court is mindful of the fact that, as regards the applicant ’ s actual presence in Lithuania, there is no direct evidence that it was the applicant who was transported on 17 or 18 February 2005, the two possible dates indicated by the experts (see paragraphs 130 -13 5 above) from Rabat to Lithuania or that he was subsequently transferred on 25 March 2006 from Lithuania to another CIA secret detention facility on board the plane N733MA. The applicant, who for years on end was held in detention conditions specifically designed to isolate and disorientate detainees by transfers to unknown locations, even if he had been allowed to testify before the Court, would not be able to say where he was detained. Nor can it be reasonably expected that he will ever, on his own, be able to identify the places in which he was held. No trace of the applicant can, or will, be found in any official flight or border police records in Lithuania or in other countries because his presence on the planes and on their territories was, by the very nature of the rendition operations, purposefully not to be recorded. As confirmed by expert J.G.S. in Al Nashiri v. Poland and Husayn (Abu Zubaydah) v. Poland, in the countries concerned the official records showing numbers of passengers and crew arriving and departing on the rendition planes neither included, nor purported to include detainees who were brought into or out of the territory involuntarily, by means of clandestine HVD renditions. Those detainees were never listed among the persons on board in documents filed with any official institution (see Al Nashiri v. Poland, cited above, §§ 410-411; and Husayn (Abu Zubaydah) v. Poland, cited above, §§ 410-411). 535. In view of the foregoing, in order to ascertain whether or not it can be concluded that the applicant was detained at Detention Site Violet in Lithuania at the relevant time, the Court will take into account all the facts that have already been found established beyond reasonable doubt (see paragraphs 48 9 -5 32 above) and analyse all other material in its possession, including, in particular, the 2014 US Senate Committee Report and expert evidence reconstructing the chronology of the applicant ’ s rendition and detention in 2002-2006 (see paragraphs 10 2-156, 15 9, 16 7-200 and 26 4 -39 5 above). (ii) Transfers and secret detention 536. As noted above, the facts of the present case form an integral part of a chain of events lasting from the applicant ’ s capture on 27 March 2002 to his transfer by the CIA into the custody of the US military authorities in the Guantánamo Bay Naval Base on 5 September 2006. Those events took place in multiple countries hosting the CIA secret detention facilities that operated under the HVD Programme during that period. They involve a continuing sequence of the applicant ’ s renditions from one country to another, with the periods of his detention at each country ’ s “black site” being marked by the movements of the CIA ’ s rendition aircraft corresponding to locations within the network of secret prisons (see paragraphs 48 5 -48 8 above). 537. The Court further notes that the facts concerning the applicant ’ s secret detention and continuous renditions from the time of his capture in Faisalabad, Pakistan, on 27 March 2002 to his rendition from Rabat, Morocco, in February 2005, including the names of the countries in which he was detained, the exact dates on which he was transferred by the CIA to and out of each country and the identities of all the rendition planes on which he was transferred have already been established conclusively and to the standard of proof beyond reasonable doubt in Husayn (Abu Zubaydah) v. Poland and in the present case (see Husayn (Abu Zubaydah) v. Poland, cited above, §§ 404 and 419; and paragraphs 48 9 -5 32 above). 538. In particular, it has been established beyond reasonable doubt that until an unspecified date in February 2005 the applicant was held in secret detention in Morocco, at a facility used by the CIA and that on that date he was transferred by the CIA from Morocco to another detention facility elsewhere (see paragraph 49 7 above). It has also been established to the same standard of proof, beyond reasonable doubt, that: (a) The CIA secret detention facility codenamed “Detention Site Violet” in the 2014 US Senate Committee Report became operational in Lithuania either on 17 February 2005, the date of the CIA rendition flight N724CL from Rabat via Amman, which landed at Vilnius airport or on 18 February 2005, the date of the CIA rendition flight N787WH from Rabat via Bucharest, which landed at Palanga airport. (b) The Detention Site Violet operated in Lithuania until 25 March 2006, the date of the CIA rendition flight N733MA from Palanga airport to Cairo (see paragraph 5 32 above). 539. It accordingly remains for the Court to determine whether it has been adequately demonstrated to the required standard of proof that the applicant was transferred from Morocco to Lithuania on either of the February 2005 CIA flights and whether he was secretly detained in Lithuania over the subsequent period, until 25 March 200 6. 540. The Court observes that the main argument put forward by the Government is that there is no credible evidence confirming the applicant ’ s presence in Lithuania during that period and no link between the impugned flights and the applicant. In the Government ’ s submission, even if the flights had been linked with the CIA and landed in Lithuania, it could not constitute a proof of his detention in the country (see paragraphs 42 6 and 44 3 above). It has already been reiterated above that, given the veil of secrecy surrounding the CIA rendition operations, it cannot be expected that any traces of the applicant are to be found in any official flight or border control records in Lithuania or elsewhere. As in other cases concerning the CIA HVD Programme the fate of the applicant can be reconstructed only by an analysis of strings of data from various sources available in the public domain and expert evidence (see paragraph 4 87 above). The fact that the applicant ’ s name does not appear in the official record with reference to his alleged secret detention in Lithuania is not therefore decisive for the Court ’ s assessment. 541. In that regard, the Court notes that the 2014 US Senate Committee Report contains a number of often extensive references to the applicant, in particular in relation to the EITs inflicted on him during the series of interrogations, including the use of waterboarding, in the early stages of his secret detention at Detention Site Green located in Thailand and “debriefing” that he underwent at Detention Site Blue located in Poland (see paragraphs 9 2-96 above). Yet, as also confirmed by the experts, the report does not mention the applicant explicitly by name in connection with Detention Site Violet (see paragraphs 13 5, 137 and 1 41 above). 542. Nonetheless, the experts, following a comprehensive analysis of the entirety of the available documentary evidence concerning the CIA ’ s extraordinary rendition operations at the material time, were able to conclude that he had been detained at that site on the basis of a number of other elements consistently demonstrating that there is no – and there could not be any – alternative account of the applicant ’ s fate following his February 2005 rendition from Morocco. The Court would reiterate that the experts started by determining, beyond reasonable doubt, that Morocco was the only place in which the applicant could have been detained in February 2005 and that, according to the rendition aircraft schedules at that time he could only have been transferred from there either to Detention Site Black in Romania or to Detention Site Violet in Lithuania. On the basis of evidence indicating his absence from Detention Site Black in the relevant period, the one and only remaining destination of the applicant ’ s transfer from Rabat was Detention Site Violet. They further went on to infer information relevant for the applicant from unredacted passages of the report concerning other HVDs in CIA custody, Khalid Sheikh Mohammed and Mustafa al-Hawsawi, simultaneously being detained in the country hosting Detention Site Violet. The experts correlated this information with the data relating to the CIA detainee transfers in the period of the operation of the Lithuanian site, including the transfer from Detention Site Black to Detention Site Violet on 6 October 2005 and the transfer from Detention Site Violet, via Cairo and an aircraft switching operation, to Detention Site Brown (see paragraphs 13 2, 13 4 -13 5, 13 7 and 14 1 ‑ 14 3 above). 543. The Court would refer, in particular, to the following statements made by the experts. Mr J.G.S. stated that “through an intimate familiarity with the chronology of [the applicant ’ s] detention” he had reached the conclusion that “there [was] only one place he could have been in the early part of 2005 and that that place was indeed Morocco”. He knew that “the transfers out of Morocco in 2005 went to other active ‘ black sites ’ that that one of these was ‘ Detention Site Black ’ in Romania, but that there was also another one in a separate country ... and ... this other country was Lithuania”. He added that “because [the applicant] did not arrive in Romania, ‘ Detention Site Black ’ ” – which he knew based on his “years ’ long investigations into the operations of that site ... the only other destination to which he could have been transferred was the active site in Lithuania and this transfer took place in accordance with the flights ... in February 2005” (see paragraph 13 7 above). Mr Black testified that, based on the overall effect of the evidence, he was satisfied “that beyond reasonable doubt Abu Zubaydah was held in Lithuania starting from February 2005”. He said that while prima facie it was possible that the applicant, being in Morocco in February 2005, had been moved either to Romania or to Lithuania, there was evidence indicating, first, that he was not in Romania in or prior to the Summer 2005 and, second, that he was in Lithuania in March 2005 (see paragraphs 14 1 ‑ 14 4 above). 544. The experts attributed a different threshold of proof to their conclusions. Mr J.G.S. stated that on the “balance of probabilities”, he believed it was established that the applicant had been secretly detained at Detention Site Violet (see paragraph 13 7 ). He was nevertheless satisfied as to “the presence of Mr Zubaydah, respectively in early 2005 in Morocco up to the point where the CIA detention [facility] [had been] cleared, thereafter on the territory of Lithuania in Detention Site coded as ‘ Violet ’ and thereafter on the territory of Afghanistan in the Detention Site coded as ‘ Brown ’ ” (see paragraph 13 9 above). Also, he said that there was a “categorical certainty” that the applicant had been brought to Lithuania on one of the February 2005 flights from Morocco to Lithuania – N724CL or N787WH – either on 17 or on 18 February 2005 and that “beyond reasonable doubt he [had been] taken to Afghanistan when he [had] left Lithuania” (see paragraphs 13 4, 13 7 and 13 9 above). Mr Black categorically stated that the applicant, beyond reasonable doubt, had been held in Lithuania from February 2005 onwards and that he believed that the applicant had been “flown into Lithuania on N787WH on 18 February 2005 and flown out of Lithuania on N733MA and N70EH on 25 March 2006” (see paragraphs 14 2 -14 3 above). 545. The Court does not consider that this difference in terminology used by the experts has a direct and dispositive bearing on its own assessment of the evidence. It reiterates that, while in assessing evidence it applies “the standard of proof beyond reasonable doubt”, that concept is independent from the approach of the national legal systems which use that standard. The Court is not called upon to rule on criminal guilt or civil liability based on “beyond reasonable doubt” or “balance of probabilities” standards as applied by the domestic courts but on the responsibility of the respondent State under the Convention (see paragraph 4 81 above, with references to the Court ’ s case-law). 546. Based on its free evaluation of all the material in its possession, the Court considers that there is prima facie evidence corroborating the applicant ’ s allegation as to his secret detention in Lithuania, at Detention Site Violet, from 17 or 18 February 2005 to 25 March 2006. Consequently, the burden of proof should shift to the respondent Government. 547. However, the Government, apart from their above contention that there is no credible evidence confirming the applicant ’ s detention in Lithuania, in particular in any border control records, and their general denial that any CIA secret detention facility had operated in the country, have not adduced any counter-evidence capable of refuting the experts ’ conclusions. Having regard to the very nature of the CIA secret detention scheme, the Government ’ s argument that there is no indication of the applicant ’ s physical presence in Lithuania – which they sought to support by the fact that his name had not been found in the records of passengers on the flights in February 200 5-March 2006 (see paragraphs 426 -42 8 above) – cannot be upheld. In the Court ’ s view, it would be unacceptable if the Government, having failed to comply with their obligation to register duly and in accordance with the domestic law all persons arriving on or departing from Lithuanian territory on the CIA planes and having relinquished any border control in respect of the rendition aircraft (see paragraphs 50 8 above), could take advantage of those omissions in the fact-finding procedure before the Court. When allowing the CIA to operate a detention site on Lithuanian soil the Government were, by pure virtue of Article 5 of the Convention, required to secure the information necessary to identify detainees brought to the country (see paragraphs 6 52-654 below, with references to the Court ’ s case-law). The Court cannot accept that the Government ’ s failure to do so should have adverse consequences for the applicant in its assessment of whether it has been adequately demonstrated by the Government, against the strong prima facie case made by the applicant, that his detention in Lithuania did not take place. 548. In view of the foregoing, the Court considers the applicant ’ s allegations sufficiently convincing. For the same reasons as stated above in regard to the date marking the opening of Detention Site Violet (see paragraph 51 4 above), the Court does not find it indispensable to rule on which of the two dates indicated by the applicant – 17 or 18 February 2005 – and on which of the two planes – N724CL or N787WH – he was brought to Lithuania. Consequently, on the basis of strong, clear and concordant inferences as related above, the Court finds it proven to the required standard of proof that: (a) on 17 or 18 February 2005 the applicant was transferred by the CIA to from Rabat, Morocco to Lithuania on board either the rendition plane N724CL or the rendition plane N787WH; (b) from 17 or 18 February 2005 to 25 March 2006 the applicant was detained in the CIA detention facility in Lithuania codenamed “Detention Site Violet” according to the 2014 US Senate Committee Report; and (c) on 25 March 2006 on board the rendition plane N733MA and via a subsequent aircraft-switching operation the applicant was transferred by the CIA out of Lithuania to another CIA detention facility, identified by the experts as being codenamed “Detention Site Brown” according to the 2014 US Senate Committee Report. (iii) The applicant ’ s treatment in CIA custody in Lithuania 549. The applicant stated that, as in Husayn (Abu Zubaydah) v. Poland on account of the secrecy of the HVD Programme and restrictions on his communications with the Court, he could not present specific evidence of what had happened to him in Lithuania. However, as the Court found in the above case, at an absolute minimum detainees in CIA custody, whether in Lithuania or elsewhere, would have been subjected to the applicable standard conditions of detention at the relevant time, including solitary confinement, shackling, exposure to bright light, low and loud noise on a constant basis and the standard conditions of transfer, stripping, shaving, hooding, diapering and strapping down into painful crammed positions. The Government have not addressed this issue. 550. The Court observes that, in contrast to treatment inflicted on the applicant during an early period of his secret detention, which is often documented in detail in various material (see paragraphs 92 -97 above), there is no evidence demonstrating any instances of similar acts at Detention Site Violet. According to the 2014 US Senate Committee Report, the applicant from his capture to his transfer to US military custody on 5 September 2006 “provided information”, which resulted “in 766 disseminated intelligence reports”. The fact that nearly 600 such reports were produced between September 2002 and September 2006 indicates that he was continually interrogated or “debriefed” by the CIA during the entire period of his secret detention (see paragraph 15 6 above). However, in the light of the material in the Court ’ s possession, it does not appear that in Lithuania the applicant was subjected to the EITs in connection with interrogations (see paragraphs 4 8 -5 5 above). As regards recourse to harsh interrogation techniques at the relevant time, the 2014 US Senate Committee Report states in general terms that in mid-2004 the CIA temporarily suspended the use of the EITs. While their use was at some point resumed and they were apparently applied throughout the most part of 2005, such techniques were again temporarily suspended in late 2005 and in 2006. However, the applicant ’ s name is not mentioned in that context (see paragraph 8 6 above). 551. According to the experts, it was not possible to pronounce categorically on specific interrogation techniques or other forms of treatment or ill-treatment practised on the applicant in Lithuania, as in 2005 ‑ 2006 there was less information about the treatment of prisoners in the HVD Programme than there had been in the previous years. However, the CIA documents and the 2014 US Senate Committee Report described the routine conditions of detention at “black sites”, which included such practices as sensory deprivation, sleep deprivation, denial or religious rights and incommunicado detention. Those conditions alone passed the threshold of treatment prohibited by Article 3 of the Convention (see paragraphs 154 ‑ 15 5 above). 552. As regards the Court ’ s establishment of the facts of the case, detailed rules governing conditions in which the CIA kept its prisoners leave no room for speculation as to the basic aspects of the situation in which the applicant found himself from 17 or 18 February 2005 to 25 March 2006. The Court therefore finds it established beyond reasonable doubt that the applicant was kept – as any other high-value detainee – in conditions described in the DCI Confinement Guidelines, which applied from the end of January 2003 to September 2006 to all CIA detainees (see paragraphs 54-56 above; see also Husayn (Abu Zubaydah) v. Poland, cited above, §§ 418-419 and 510). While at this stage it is premature to characterise the treatment to which the applicant was subjected during his detention at Detention Site Violet for the purposes of his complaint under the substantive limb of Article 3 of the Convention, the Court would point out that that regime included at least “six standard conditions of confinement”. That meant blindfolding or hooding the detainees, designed to disorient them and keep from learning their location or the layout of the detention facility; removal of hair upon arrival at the site; incommunicado, solitary confinement; continuous noise of high and varying intensity played at all times; continuous light such that each cell was illuminated to about the same brightness as an office; and use of leg shackles in all aspects of detainee management and movement (see paragraphs 55-56 above). 5. As regards the establishment of the facts and assessment of evidence relevant to the applicant ’ s allegations concerning Lithuania ’ s knowledge of and complicity in the CIA HVD Programme (a) Relations of cooperation between the Lithuanian authorities and the CIA, including an agreement to host a CIA detention facility, acceptance of a financial reward for supporting the HVD Programme and assistance in the acquisition and adaptation of the premises for the CIA ’ s activities (Project No. 1 and Project No. 2) (i) Agreement to host a CIA detention facility and acceptance of a financial reward for supporting the HVD Programme 553. The Government firmly denied that the State authorities had received any CIA request that would even vaguely imply the running of a secret detention facility on Lithuanian territory. The prospects of receiving from the US authorities a request for assistance in the “war on terror” had been considered by the SSD on a purely theoretical basis. Moreover, in the criminal investigation all the Heads of State in office at the material time had consistently testified that they had not known about any detainees transfers and had not given their consent to the transportation of any persons held by the CIA (see paragraph 4 45 above). 554. However, the above contention does not seem to be supported by the CNSD Findings, which established that the SSD had received a request from the CIA “to equip facilities in Lithuania suitable for holding detainees”. In that connection, the CNSD referred to the testimony of the former Head of State, Mr Rolandas Paksas who had confirmed that Lithuania had been asked for permission to bring into the country persons suspected of terrorism; however, the information that he had received had not mentioned a detention centre or prison. The former Director General of the SSD, Mr Mečys Laurinkus testified that in mid-2003 he had informed Mr Paksas about a possibility of receiving a “request to participate in the programme concerning the transportation of detainees” after Lithuania ’ s accession to NATO (see paragraph 17 4 above). In that context, the Court would refer to the 2014 US Senate Report, which states, in relation to Detention Site Violet, that at the same time, that is “by mid-2003”, the CIA “had concluded that its completed but still unused holding cell in Country ... [had been] insufficient” and had “sought to build a new, expanded detention facility in the country” (see paragraph 14 7 above). The Court would also note that Lithuania ’ s accession to NATO took place on 29 March 2004 (see paragraph 364 above). The CNSD further established that, “when carrying out the SSD partnership cooperation Project No. 1 and Project No. 2, the ... heads of the SSD [had] not inform[ed] any of the country ’ s officials of the purposes and content of the said projects”. On the basis of the material in its possession, it related that although Mr Laurinkus had received a negative answer from Mr Paksas in respect of the “bringing into the Republic of Lithuania of persons interrogated by the USA”, he had not asked either Mr Paksas or acting Head of State, Mr Artūras Paulauskas, for “political approval of activities under Project No. 2”. Mr Laurinkus had “had knowledge of launching the activities under Project No. 2” in March ‑ April 2004 – which, the Court would note, was around the same time as Lithuania ’ s accession to NATO. Several SSD officers, including the Director General, Mr Arvydas Pocius, and acting Director General, Mr Dainius Dabašinskas had “had knowledge of Project No. 2 at the time of launching” (see paragraph 17 4 above). Mr Valdas Adamkus, the former Head of State stated that “no information [had been] provided to [ him ] about running Project No. 2 in 2004-2006”. However, according to Mr Pocius, Mr Adamkus had been “adequately informed” of Project No. 2 (see paragraphs 17 4, 17 7-178 and 367 above). In the Seimas public debate on the CNSD Findings it was again confirmed that the SSD had received a request from the CIA “to install premises ... suitable for keeping detainees” (see paragraphs 17 7 -17 8 above). 555. Witness evidence obtained in the criminal investigation also confirms that fact. Witness A, an important political post-holder at the relevant time, testified that Mr Laurinkus had addressed Mr Paksas in connection with a “temporary possibility to hold persons suspected of terrorism” and received a negative answer (see paragraph 30 7 above). Witness B2, an another important political post-holder, confirmed that he had been addressed “as regards the transportation and holding [of] people in Lithuania” and that he had not approved the idea (see paragraph 31 4 above). 556. Moreover, referring to the availability of information of the establishment of the CIA clandestine detention sites, the 2014 US Senate Committee Report clearly confirms that the “political leaders of host countries were generally informed of their existence” (see paragraph 7 9 above). The report further confirms that an approval for the CIA detention facility corresponding to Project No. 2 was received from the authorities. Although the relevant section specifying a person or authority is heavily redacted, it clearly states that “the plan to construct the expanded facility was approved by the [redacted] of the Country” – which, however, required “complex mechanisms” in order to provide an unspecified amount of USD million to the country ’ s authorities. The money was offered to “show appreciation” for the support for the CIA programme. It may be inferred from the report that certain national authorities “probably [had] an incomplete notion” as to the CIA facility ’ s “actual function”. Also, the report refers to a certain official who, when he became aware of the facility, was described as “shocked” but “nonetheless approved” it (see paragraph 14 7 above). 557. As regards the money paid by the CIA to the authorities, the Court would note that the fact that such financial rewards were, as a matter of general policy and practice, offered to the authorities of countries hosting CIA “black sites” is confirmed in Conclusion 20 of the 2014 US Senate Committee Report. The conclusion states that “to encourage governments to clandestinely host CIA detention sites, or to increase support for existing sites, the CIA provided millions of dollars in cash payments to foreign government officials” and that “the CIA Headquarters encouraged CIA Stations to construct ‘ wish lists ’ of proposed financial assistance” and “to ‘ think big ’ in terms of that assistance” (see paragraph 8 9 above). (ii) Assistance in the acquisition and adaptation of the premises for the CIA ’ s activities (Project No. 1 and Project No. 2) 558. It is undisputed and has been confirmed by the CNSD Findings and in the criminal investigation that Project No. 1 and Project No. 2 were implemented in cooperation with the CIA. Nor has it been contested that in the framework of that cooperation the SSD adapted the premises of Project No. 1 according to the CIA ’ s requests, assisted the CIA in acquiring the premises of Project No. 2 and adapting and reconstructing the premises for the CIA ’ s needs (see paragraphs 17 4 and 199 above). The cooperation dated back to 2002 and started from the adaptation of Project No. 1. Later, in 2003 several officers of the SSD were assigned to assist the CIA in finding a suitable location for Project No. 2 and purchasing the land and buildings in Antaviliai. Both projects were fully financed by the CIA. Starting from the beginning of 2005 when the Project No. 2, according to Witness S, was “established”, the SSD officers ensured the security and surveillance of the premises (see paragraphs 33 3 -33 8 and 3 41 above). (b) Assistance in disguising the CIA rendition aircraft routes through Lithuania by means of the so-called “dummy” flight planning 559. In Al Nashiri v. Poland and Husayn (Abu Zubaydah) v. Poland the fact that the national authorities had cooperated with the CIA in disguising the rendition aircraft ’ s actual routes and validated incomplete or false flight plans in order to cover up the CIA ’ s activities in the country was considered relevant for the Court ’ s assessment of the State authorities ’ knowledge of, and complicity in, the HVD Programme (see Al Nashiri v. Poland, cited above, §§ 419-422; and Husayn (Abu Zubaydah) v. Poland, cited above, §§ 421-424). The Court will follow that approach in analysing the facts of the present case. 560. It has already been established that in respect of three rendition flights – N787WH on 18 February 2005, N787WH on 6 October 2005 and N733MA on 25 March 2006 the CIA used the methodology of “dummy” flight planning – an intentional disguise of flight plans for rendition aircraft applied by the air companies contracted by the CIA (see paragraph 507 above). As the Court found in the judgments referred to above, the “dummy” flight planning, a deliberate effort to cover up the CIA flights into the country, required active cooperation on the part of the host countries through which the planes travelled. In addition to granting the CIA rendition aircraft overflight permissions, the national authorities navigated the planes through the country ’ s airspace to undeclared destinations in contravention of international aviation regulations and issued false landing permits (ibid.). 561. Consequently, the fact that the Lithuanian aviation authorities participated in the process demonstrated that Lithuania knowingly assisted in the CIA scheme disguising the rendition planes. (c) Special procedure for CIA flights 562. The Government acknowledged that the CIA planes on two occasions had not been subject to the customs and SBGS control, in connection with the delivery of a “special cargo” for the Lithuanian services (see paragraph 4 29 above). To this end, the SSD addressed classified letters to the relevant authorities. The purpose was to obtain unrestricted access to the aircraft for the SSD and the CIA partners. As described by the witnesses questioned in the criminal investigation, the CIA teams were escorted to the area in the airport and drove in their vehicles to the aircraft, whereas the SSD officers escorting them remained in their vehicles at some distance. As noted above, that practice resembled the special procedure followed by the Polish authorities in respect of the CIA rendition planes landings in Szymany in December 2002-September 2003 (see paragraph 50 8 above, with references to Al Nashiri v. Poland and Husayn (Abu Zubaydah) v. Poland ). (d) Circumstances routinely surrounding HVDs transfers and reception at the CIA “black site” 563. The Court considers, as it did in Al Nashiri v. Poland and Husayn (Abu Zubaydah) v. Poland, that the circumstances and conditions in which HVDs were routinely transferred by the CIA from rendition planes to the CIA “black sites” in the host countries should be taken into account in the context of the State authorities ’ alleged knowledge and complicity in the HVD Programme (see Al Nashiri v. Poland, cited above, § 437; and Husayn (Abu Zubaydah) v. Poland, cited above, § 439). It follows from the Court ’ s findings in the above cases and the CIA material describing the routine procedure for transfers of detainees between the “black sites” (see paragraphs 47 - 48 above) that for the duration of his transfer a HVD was “securely shackled” by his hands and feet, deprived of sight and sound by the use of blindfolds, earmuffs and a hood and that upon arrival at his destination was moved to the “black site” under the same conditions. 564. The Court finds it inconceivable that the transportation of prisoners over land from the planes to the CIA detention site could, for all practical purposes, have been effected without at least minimal assistance by the host country ’ s authorities, to mention only securing the area near and around the landing planes and providing conditions for a secret and safe transfer of passengers. Inevitably, the Lithuanian personnel responsible for security arrangements, in particular the reception of the flights and on-land transit, must have witnessed at least some elements of the detainees ’ transfer to Detention Site Violet, for instance the loading or unloading of blindfolded and shackled passengers from the planes (see also Al Nashiri v. Poland, cited above, §§ 330 and 437; and Husayn (Abu Zubaydah) v. Poland, cited above, §§ 322 and 439). Consequently, the Court concludes that the Lithuanian authorities which received the CIA personnel in the airport could not have been unaware that the persons brought by them to Lithuania were the CIA prisoners. (e) Public knowledge of treatment to which captured terrorist suspects were subjected in US custody in 2002-2005 565. The Court also attaches importance to various material referring to ill-treatment and abuse of terrorist suspects captured and detained by US authorities in the “war on terror”, which was available in the public domain at the relevant time (see El Masri, cited above, § 160; Al Nashiri v. Poland, cited above, § 439; Husayn (Abu Zubaydah) v. Poland, cited above, § 441; and Nasr and Ghali, cited above, § 234). 566. Before analysing that material, the Court would refer to President Bush ’ s memorandum of 7 February 2002, stating that neither al-Qaeda nor Taliban detainees qualified as prisoners of war under the Geneva Conventions and that Common Article 3 of the Geneva Conventions, did not apply to them (see paragraph 2 26 -2 31 above). The White House Press Secretary announced that decision at the press conference on the same day. It was widely commented in the US and international media. That decision, however, included a disclaimer that even detainees “not legally entitled” to be treated humanely would be so treated, and also spoke of respecting the principles of the Geneva Conventions “to the extent appropriate and consistent with military necessity” (see paragraphs 29-30 above). Consequently, already at this very early stage of the “war on terror” it was well known that “military necessity” was a parameter for determining the treatment to be received by the captured terrorist suspects. 567. The Court would further note that from at least January 2002, when the UN High Commissioner for Human Rights issued a statement relating to detention of Taliban and al-Qaeda prisoners in Guantánamo, strong concerns were expressed publicly as to the treatment of detainees, in particular the use of “stress and duress” methods of interrogations and arbitrary and incommunicado detention. From January 2002 onwards the international governmental and non-governmental organisations regularly published reports and statements disclosing ill-treatment and abuse to which captured terrorist suspects were subjected in US custody in various places, for instance in Guantánamo and the US Bagram military base in Afghanistan. The material summarised above and cited in the AI/ICJ ’ s amicus curiae brief include only some sources selected from a large amount of documents available in the public domain throughout the above period (see paragraphs 234 -2 50 and 465 -4 71 above). Moreover, in the 2003 PACE Resolution of 26 June 2003 – of which Lithuania, one of the Council of Europe ’ s member States, must have been aware – the Parliamentary Assembly of the Council of Europe was “deeply concerned at the conditions of detention” of captured “unlawful combatants” held in the custody of the US authorities (see paragraph 238 above). 568. At the material time the ill-treatment, use of harsh interrogation measures, and arbitrary detention of al-Qaeda and Taliban prisoners in US custody, as well as the existence of “US overseas centres” for interrogations was also often reported in the international media from early 2002 (see paragraphs 2 51 -25 5 above). Following the Washington Post report on 2 November 2005, which disclosed the complicity of the “Eastern European countries” in the CIA HVD Programme and prompted the closure of “black sites” in Europe, as well as the ABC News disclosure and the 2005 HRW Statement naming Poland and Romania as CIA accomplices, there could be no doubt as what kind of activities had been carried out by the CIA in the countries concerned (see paragraphs 248-249 and 256-257 above). At that time, Detention Site Violet in Lithuania was still active. The issue of the CIA renditions and abusive detention and interrogation practices used against the captured terrorist suspects in their custody was also present, reported and discussed in the Lithuanian media. In particular, between June 2004 and November 2005 the Lithuanian press published a number of articles concerning secret renditions, ill-treatment of prisoners and the abusive conditions under which detainees were held and interrogated (see paragraph 263 above). (f) Informal transatlantic meeting 569. As in Al Nashiri v. Poland (cited above, § 434) and Husayn (Abu Zubaydah) v. Poland (cited above, § 436) the Court considers the informal transatlantic meeting of the European Union and North Atlantic Treaty Organisation foreign ministers with the then US Secretary of State, Ms Condoleezza Rice, held on 7 December 2005, to be one of the elements relevant for its assessment of the respondent State ’ s knowledge of the CIA rendition and secret detention operations in 2003-2005. 570. In his testimony in Al Nashiri v. Poland and Husayn (Abu Zubaydah) v. Poland, Mr Fava stated that the meeting had been convened in connection with recent international media reports, including disclosures by the Washington Post and ABC News of, respectively, 2 November 2005 and 5 December 2005, naming European countries that had allegedly had CIA “black sites” on their territories (see Al Nashiri v. Poland, cited above, §§ 306 and 434; and Husayn (Abu Zubaydah) v. Poland, cited above, §§ 300 and 436). He also described the content of the “debriefing” of that meeting, a document that the TDIP obtained from a credible confidential source in the offices of the European Union. He stated that it had appeared from Ms Rice ’ s statement “we all know about these techniques” made in the context of the CIA operations and interrogations of terrorist suspects, which had been recorded in the debriefing that there had been an attempt on the USA ’ s part to share the “weight of accusations” (ibid., see alsp paragraph 359 above) ). As pointed out by the applicant (see paragraph 460 above), Lithuania, an EU and NATO member must have participated in that meeting and been aware of the issues discussed. At that time, the CIA detention site in Lithuania was still active. 6. The Court ’ s conclusion as to the Lithuanian authorities ’ knowledge of and complicity in the CIA HVD Programme 571. The Court is mindful of the fact that knowledge of the CIA rendition and secret detention operations and the scale of abuse to which high-value detainees were subjected in CIA custody has evolved over time, from 2002 to the present day. A considerable part of the evidence before the Court emerged several years after the events complained of (see paragraphs 22-24, 34-56, 2 87-294 and 29 6-303 above; see also Al Nashiri v. Poland, cited above, § 440; and Husayn (Abu Zubaydah) v. Poland, cited above, § 442). Lithuania ’ s alleged knowledge and complicity in the HVD Programme must be assessed with reference to the elements that its authorities knew or ought to have known at or closely around the relevant time, that is to say, between 17 or 18 February 2005 and 25 March 2006. However, the Court, as it has done in respect of the establishment of the facts relating to the applicant ’ s secret detention in Lithuania, will also rely on recent evidence which, as for instance the 2014 US Senate Committee Report and expert evidence obtained by the Court, relate, explain or disclose facts occurring in the past (see Al Nashiri v. Poland, cited above, § 440 and Husayn (Abu Zubaydah) v. Poland, cited above, § 442). 572. In its assessment, the Court has considered all the evidence in its possession and the various related circumstances referred to above. Having regard to all these elements taken as a whole, the Court finds that the Lithuania authorities knew that the CIA operated, on Lithuanian territory, a detention facility for the purposes of secretly detaining and interrogating terrorist suspects captured within the “war on terror” operation by the US authorities. This finding is based on the material referred to extensively above, in particular the evidence deriving from the 2014 US Senate Committee Report and, to a considerable extent, the evidence from experts. The passages of the report relating the approval for the plan to construct the expanded detention facility given by the Detention Site Violet host country leave no doubt as to the Lithuanian high-office holders ’ prior acceptance of hosting a CIA detention site on their territory. Nor can there be any doubt that they provided “cooperation and support” for the “detention programme” and that, in appreciation, were offered and accepted a financial reward, amounting to some redacted sum of USD million (see paragraphs 554-557 above). 573. Furthermore, the experts, who in the course of their inquiries also had the benefit of contact with various sources, including confidential ones, unanimously and categorically stated that Lithuania not only ought to have known but actually did know of the nature and purposes of the CIA activities in the country. Senator Marty stated that since the operation had been governed by the “need-to-know” secrecy principle, only those few people who had absolutely needed to know had known about it. As in other countries, there had been persons at the highest level of the Lithuanian State who had had certain knowledge of what had been going on but even those who had come to know had not necessarily known all the details. Yet somebody had allowed the CIA to move about freely and have access to premises where they had been allowed to do what they had wanted without any control whatsoever. He described the national authorities ’ conduct as complicity which had not been active; the national authorities had not participated in the CIA interrogations (see paragraph 3 82 above). Mr J.G.S. testified that the authorities of Lithuania had known about the existence of the detention facility and that through the highest levels of their government had approved and authorised its presence on their territory. In his view, they certainly should have known the purpose which the facility had served because its nature and purpose was part of a systematic practice, which had already been implemented by the CIA across multiple other countries and had been widely reported by the time the site in Lithuania had become active. There had been different degrees of knowledge in different sectors of Lithuania ’ s authorities. At the operational level the details had been known to a very small number of trusted counterparts, primarily within the secret services. He added that he was not aware of any single instance of a CIA detention site having existed anywhere in the world without the express knowledge and authorisation of the host authorities (see paragraph 387 above). Mr Black stated that it had been clear from the 2014 US Senate Committee Report that the Lithuanian officials had been aware of the CIA programme operating on their territory. He added that, as he could say from his accumulated knowledge of the CIA HVD Programme and close reading of the 2014 US Senate Committee Report, some host country officials had always known that there had been prisoners held in the facilities. That did not imply that every single host country official had known but in Lithuania ’ s case it was evident that at least some had known that the prisoners had been held on their territory and they had known that they had been receiving money to facilitate this (see paragraphs 3 92-393 above). 574. The Court, as in previous similar cases, does not consider that the Lithuanian authorities necessarily knew the details of what exactly went on inside the CIA secret facility or witnessed treatment or interrogations to which the CIA prisoners were subjected in Lithuania. As in other countries hosting clandestine prisons, the operation of the site was entirely in the hands of the CIA and the interrogations were exclusively the CIA ’ s responsibility (see paragraph 272 above; see also Al Nashiri v. Poland, cited above, § 441; and Husayn (Abu Zubaydah) v. Poland, cited above, § 443). 575. However, in the Court ’ s view, even if the Lithuanian authorities did not have, or could not have had, complete knowledge of the HVD Programme, the facts available to them through their contacts and cooperation with their CIA partners, taken together with extensive and widely available information on torture, ill-treatment, abuse and harsh interrogation measures inflicted on terrorist-suspects in US custody which in 2002-2005 circulated in the public domain, including the Lithuanian press (see paragraphs 56 5 -56 8 above), enabled them to conjure up a reasonably accurate image of the CIA ’ s activities and, more particularly, the treatment to which the CIA was likely to have subjected their prisoners in Lithuania. In that regard the Court would reiterate that in Al Nashiri v. Poland and Husayn (Abu Zubaydah) v. Poland it has found that already in 2002-2003 the public sources reported practices resorted to, or tolerated by, the US authorities that were manifestly contrary to the principles of the Convention. All the more so did the authorities, in 2005-2006, have good reason to believe that a person detained under the CIA rendition and secret detention programme could be exposed to a serious risk of treatment contrary to those principles on their territory. It further observes that it is – as was the case in respect of Poland – inconceivable that the rendition aircraft could have crossed the country ’ s airspace, landed atand departed from its airports, or that the CIA could have occupied the premises offered by the national authorities and transported detainees there, without the State authorities being informed of or involved in the preparation and execution of the HVD Programme on their territory. Nor can it stand to reason that activities of such character and scale, possibly vital for the country ’ s military and political interests, could have been undertaken on Lithuanian territory without the Lithuanian authorities ’ knowledge and without the necessary authorisation and assistance being given at the appropriate level of the State (see Al Nashiri v. Poland, cited above, §§ 441-442 and Husayn (Abu Zubaydah) v. Poland, cited above, §§ 443-444). 576. The Court accordingly finds it established beyond reasonable doubt that: (a) the Lithuanian authorities knew of the nature and purposes of the CIA ’ s activities on its territory at the material time; (b) the Lithuanian authorities, by approving the hosting of the CIA Detention Site Violet, enabling the CIA to use its airspace and airports and to disguise the movements of rendition aircraft, providing logistics and services, securing the premises for the CIA and transportation of the CIA teams with detainees on land, cooperated in the preparation and execution of the CIA rendition, secret detention and interrogation operations on its territory; and (c) given their knowledge of the nature and purposes of the CIA ’ s activities on their territory and their involvement in the execution of that programme, the Lithuanian authorities knew that, by enabling the CIA to detain terrorist suspects – including the applicant – on their territory, they were exposing them to a serious risk of treatment contrary to the Convention. III. LITHUANIA ’ S JURISDICTION AND RESPONSIBILITY UNDER THE CONVENTION AND THE APPLICANT ’ S VICTIM STATUS A. The parties ’ submissions 577. The parties ’ submissions regarding the Government ’ s objections that Lithuania lacked jurisdiction within the meaning of Article 1 of the Convention and, consequently, could not be responsible under the Convention and the applicant ’ s victim status are set out above (see paragraphs 39 8 -40 9 above). B. The Court ’ s assessment 578. The Court notes that the applicant ’ s complaints relate both to the events that occurred on Lithuanian territory and to the consequences of his transfer from Lithuania to other places where he was secretly detained (see paragraphs 110-160 above). In that regard, the Court will reiterate the relevant applicable principles. 1. As regards jurisdiction 579. It follows from Article 1 of the Convention that Contracting States must answer for any infringement of the rights and freedoms protected by the Convention committed against individuals placed under their “jurisdiction”. The exercise of jurisdiction is a necessary condition for a Contracting State to be able to be held responsible for acts or omissions attributable to it which give rise to an allegation of the infringement of rights and freedoms set forth in the Convention. In that regard, the Court would refer to its case-law to the effect that the concept of “jurisdiction” for the purposes of Article 1 of the Convention must be considered to reflect the term ’ s meaning in public international law (see Gentilhomme, Schaff-Benhadji and Zerouki v. France, nos. 48205/99 and 2 others, § 20, 14 May 2002; Banković and Others v. Belgium and Others (dec.) [GC], no. 52207/99, §§ 59-61, ECHR 2001-XII; Assanidze v. Georgia [GC], no. 71503/01, § 137, ECHR 2004-II; and Ilaşcu and Others, cited above, §§ 311-312). From the standpoint of public international law, the words “within their jurisdiction” in Article 1 of the Convention must be understood to mean that a State ’ s jurisdictional competence is primarily territorial, but also that jurisdiction is presumed to be exercised normally throughout the State ’ s territory (see Ilaşcu and Others, cited above, § 312 with further references to the Court ’ s case-law; and Sargsyan v. Azerbaijan [GC], no. 40167/06, §§ 149-150, ECHR 2015). 580. It must also be reiterated that, for the purposes of the Convention, the sole issue of relevance is the State ’ s international responsibility, irrespective of the national authority to which the breach of the Convention in the domestic system is attributable (see, Assanidze, cited above, § 146, with further references to the Court ’ s case-law). 2. As regards the State ’ s responsibility for an applicant ’ s treatment and detention by foreign officials on its territory 581. In accordance with the Court ’ s settled case-law, the respondent State must be regarded as responsible under the Convention for internationally wrongful acts performed by foreign officials on its territory with the acquiescence or connivance of its authorities (see Ilaşcu and Others, cited above, § 318; El-Masri, cited above, § 206; Al Nashiri v. Poland, cited above, § 452; Husayn (Abu Zubaydah) v. Poland, cited above, § 449; and Nasr and Ghali, cited above, § 241). 3. As regards the State ’ s responsibility for an applicant ’ s removal from its territory 582. The Court has repeatedly held that the decision of a Contracting State to remove a person – and, a fortiori, the actual removal itself – may give rise to an issue under Article 3 where substantial grounds have been shown for believing that the person in question would, if removed, face a real risk of being subjected to treatment contrary to that provision in the destination country (see Soering v. the United Kingdom, 7 July 1989, §§ 90 ‑ 91 and 113; Series A no. 161; Saadi v. Italy [GC], no. 37201/06, § 125, ECHR 2008; Babar Ahmad and Others v. the United Kingdom, nos. 24027/07 and 4 others, § 168, 10 April 2012; El ‑ Masri, cited above, §§ 212-214, with further references; Al Nashiri v. Poland, cited above, § 454; Husayn (Abu Zubaydah) v. Poland, cited above, § 450; and Nasr and Ghali, cited above, § 242). Where it has been established that the sending State knew, or ought to have known at the relevant time, that a person removed from its territory was being subjected to “extraordinary rendition”, that is, “an extra-judicial transfer of persons from one jurisdiction or State to another, for the purposes of detention and interrogation outside the normal legal system, where there was a real risk of torture or cruel, inhuman or degrading treatment”, the possibility of a breach of Article 3 is particularly strong and must be considered intrinsic in the transfer (see El-Masri, cited above, § § 218-221; Al Nashiri v. Poland, cited above, § 454; Husayn (Abu Zubaydah) v. Poland, cited above, § 450; and Nasr and Ghali, cited above, § 243). 583. Furthermore, a Contracting State would be in violation of Article 5 of the Convention if it removed, or enabled the removal, of an applicant to a State where he or she was at real risk of a flagrant breach of that Article (see Othman (Abu Qatada) v. the United Kingdom, no. 8139/09, §§ 233 and 285, ECHR 2012 (extracts); and El-Masri, cited above, § 239). Again, that risk is inherent where an applicant has been subjected to “extraordinary rendition”, which entails detention “outside the normal legal system” and which, “by its deliberate circumvention of due process, is anathema to the rule of law and the values protected by the Convention” (see El-Masri, ibid.; Al Nashiri v. Poland, cited above, § 455; Husayn (Abu Zubaydah) v. Poland, cited above, § 451; and Nasr and Ghali, cited above, § 244). 584. While the establishment of the host State ’ s responsibility inevitably involves an assessment of conditions in the destination country against the standards set out in the Convention, there is no question of adjudicating on or establishing the responsibility of the destination country, whether under general international law, under the Convention or otherwise. In so far as any responsibility under the Convention is or may be incurred, it is responsibility incurred by the host Contracting State by reason of its having taken action which has as a direct consequence the exposure of an individual to proscribed ill-treatment or other alleged violations of the Convention (see Soering, cited above, §§ 91 and 113; Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, §§ 67 and 90, ECHR 2005 ‑ I, with further references; Othman (Abu Qatada), cited above, § 258; and El ‑ Masri, cited above, §§ 212 and 239). 585. In determining whether substantial grounds have been shown for believing that a real risk of the Convention violations exists, the Court will assess the issue in the light of all the material placed before it or, if necessary, material it has obtained proprio motu. It must examine the foreseeable consequences of sending the applicant to the destination country, bearing in mind the general situation there and his personal circumstances. The existence of the alleged risk must be assessed primarily with reference to those facts which were known or ought to have been known to the Contracting State at the time of the removal. However, where the transfer has already taken place at the date of the Court ’ s examination, the Court is not precluded from having regard to information which comes to light subsequently (see Al-Saadoon and Mufdhi v. the United Kingdom, no. 61498/08, § 125, ECHR 2010; and El ‑ Masri, cited above, §§ 213-214, with further references; Al Nashiri v. Poland, cited above, § 458; Husayn (Abu Zubaydah) v. Poland, cited above, § 455; and Nasr and Ghali, cited above, § 246). 4. Conclusion as to the Lithuanian Government ’ s preliminary objections that Lithuania lacks jurisdiction and responsibility under the Convention and as to the applicant ’ s victim status 586. Following an extensive and detailed analysis of evidence in the present case, the Court has established conclusively and to the required standard of proof that the Lithuanian authorities hosted CIA Detention Site Violet from 17 or 18 February 2005 to 25 March 2006; that the applicant was secretly detained there during that period; that the Lithuanian authorities knew of the nature and purposes of the CIA ’ s activities in their country and cooperated in the execution of the HVD Programme; and that the Lithuanian authorities knew that, by enabling the CIA to detain terrorist suspects – including the applicant – on their territory, they were exposing them to a serious risk of treatment contrary to the Convention (see paragraph 576 above). The above findings suffice for the Court to conclude that the matters complained of in the present case fall within the “jurisdiction” of Lithuania within the meaning of Article 1 of the Convention and are capable of engaging the respondent State ’ s responsibility under the Convention, and that the applicant can be considered a “victim” for the purposes of Article 34 of the Convention. Accordingly, the Government ’ s preliminary objections on these grounds must be dismissed. 587. The Court will accordingly examine the applicant ’ s complaints and the extent to which the events complained of are attributable to the Lithuanian State in the light of the above principles of State responsibility under the Convention, as deriving from its case-law (see also Al Nashiri v. Poland, cited above, § 459; and Husayn (Abu Zubaydah) v. Poland, cited above, § 456). IV. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 588. The applicant ’ s complaints under Article 3 of the Convention concerned both substantive and procedural aspects of this provision. (1) As regards his alleged ill-treatment and detention in Lithuania, he complained that the Lithuanian authorities had knowingly and intentionally enabled the CIA to hold him in secret detention at the CIA site for over one year. Lithuania had known about the CIA ’ s rendition programme on its territory and of the real and immediate risk of torture to which high-value detainees under this programme had been subjected. Lithuania had actively agreed to establish a secret detention site and to facilitate the CIA unhindered use of that site. (2) Furthermore, the applicant alleged that Lithuania, by enabling the CIA to transfer him from its territory to its other secret “black sites”, had exposed him to further torture and ill-treatment. The Lithuanian authorities had known, or should have known, of the real risk that he would continue to be held in the same detention regime as that to which he had hitherto been subjected. (3) He also complained under Article 3 taken separately and in conjunction with Article 13 of the Convention that the Lithuanian authorities had been in breach of the procedural obligations under Article 3 and that he had been denied the right to a remedy under Article 13, since they had failed to conduct an effective investigation into his allegations of torture, ill ‑ treatment and secret detention in a CIA-run detention facility on Lithuanian territory and of being unlawfully transferred to places where he had faced further torture and ill-treatment. 589. Article 3 of the Convention states: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 590. The Court will first examine the applicant ’ s complaint under the procedural aspect of Article 3 about the lack of an effective and thorough criminal investigation into his allegations of ill-treatment when in CIA custody on Lithuanian territory (see El-Masri, cited above, § 181; Al Nashiri v. Poland, cited above, § 462; and Husayn (Abu Zubaydah) v. Poland, cited above, § 459). A. Procedural aspect of Article 3 1. The parties ’ submissions (a) The Government 591. In their written and oral pleadings, the Government submitted that the pre-trial investigation in 2010-2011 had been prompt, independent, thorough and transparent as required by Article 3. They also underlined that the proceedings had been re-opened on 22 January 2015 immediately after the publication of the 2014 US Senate Committee Report disclosing new evidence concerning the CIA rendition operations. 592. As regards the proceedings conducted in 2010-2011, the Government maintained that, despite the fact that the prosecution had not been obliged to follow the CNSD ’ s recommendation to initiate a pre-trial investigation, that investigation had been opened and carried out promptly after the adoption of the Seimas Resolution. There could be no doubt as to the independence of the investigation since, as set forth in the Constitution, a prosecutor “shall be independent and obey only the law”. The investigation had been thorough; it had not been limited to materials available to the Seimas and replies to requests for information from the relevant State institutions. In the course of the proceedings numerous additional witnesses had been questioned, including all persons who had been involved in, or had had knowledge of, the circumstances being investigated, such as airport workers, the SSD officials, Customs and SBGS officials, or other former and current State officials. However, since the issues concerning the State or official secrets and classified information had been involved in the investigation, it was not possible for the Government to disclose the identities of all witnesses. In that regard, the Government also explained that the succinct nature of the Prosecutor ’ s decision to discontinue the pre-trial investigation did not reflect the exact scope and content of the investigation because part of the materials in the file constituted a State secret. This particular reason precluded the Government from providing the Court with a more detailed description of all procedural steps taken by the prosecution in the course of the pre-trial investigation or more detailed explanations of the factual circumstances that had been disclosed. Yet part of the material had been declassified and had been submitted to the Court in order to assure the Court that all relevant information had been gathered by the prosecution, rebutting the hypothesis raised earlier in the course of the parliamentary inquiry. 593. As to the victim ’ s participation in the investigation, in the present case no ground had been established to grant the applicant victim status in the proceedings as not the slightest link had been established between the applicant and the circumstances under examination. The Government noted that under Article 28 of the Lithuanian Code of Criminal Procedure, a person could be recognised as a victim of a criminal offence by a decision of the prosecutor adopted on his own initiative. As regards the letter of 20 September 2010 from Reprieve, requesting investigation into “new and credible allegations that our client Mr Husayn had been held in Lithuania sometime from 2004 to 2006”, the Government noted that Reprieve had provided only some publicly available information of a general nature, which had already been in the possession of the Seimas and the prosecutor. Moreover, Reprieve had not asked for victim status to be granted to the applicant under Article 28 of the Code of Criminal Procedure, nor had it ever presented the applicant ’ s authorisation. It had been alleged in Reprieve ’ s request that “recent information [had] come to us from a confidential and extremely reliable unclassified source, confirming that Mr Husayn [had been] held in a secret CIA prison in Lithuania”. The Prosecutor General ’ s Office had asked it to provide all information leading to the conclusion as to Mr Husayn ’ s transportation to/from Lithuania and his alleged presence from Spring 2004 to 2006 September and also to indicate the “confidential and extremely reliable source” referred to in the request. However, no further information had been provided and no source had been indicated. 594. Overall, the investigation had met the requirements under the procedural limb of Article 3 of the Convention. It had made a serious attempt to find out what happened and, relying on the entirety of information obtained in the course of the pre-trial investigation, had established beyond reasonable doubt that no persons, including the applicant, had been brought into Lithuania or detained there. The prosecution had acted actively and independently, gathering information of a much more detailed nature compared with that available to the CNSD, the mass media, NGOs and, to a certain extent, even international delegations which had carried out their respective research into the circumstances of the disputed events. Furthermore, “the State secret” concept had not precluded the prosecuting authorities from undertaking an adequate investigation, as in the course of the pre-trial investigation they had been given full access to all classified information and, thereby enabling them to find out the nature and purpose of the above-mentioned Projects Nos. 1 and 2, and to other information which had been withheld from other persons. The information at the prosecutor ’ s disposal had been much more extensive, and of a much more exact and reliable nature, than the publicly available information on which the applicant had relied. Also, in the Government ’ s view, public scrutiny had been ensured, since part of the material had been declassified in the context of the proceedings before the Court. 595. Lastly, as regards the proceedings reopened on 22 January 2015, the Government submitted that they had progressed without delay. However, the authorities had been confronted with numerous obstacles on the part of other countries to which they had addressed requests for legal assistance. They had sent six requests. Poland ’ s response had been received after ten months. As at June 2016, they had not received any replies to the requests that had been sent to Romania and Afghanistan a year or so earlier. Morocco had refused the request. The US authorities, addressed twice, replied that they could not provide the information requested. (b) The applicant 596. The applicant maintained that Lithuania had failed to carry out an investigation that satisfied its obligations under Article 3 of the Convention. In his submission, the authorities had failed to meet any of the Convention benchmarks of promptness, independence, thoroughness, effectiveness or transparency. As regards promptness, it was eleven years since the applicant had been detained on Lithuanian territory. It was eleven years since media reports had revealed secret CIA detention in Eastern European sites, and six years since reports had addressed Lithuanian responsibility specifically and identified the applicant. When specific reports had come out in relation to Lithuania in 2009, the Prosecutor had waited half a year to open his investigation – and then opened it only after the express prompting of the Parliamentary Committee. Four years had then passed from the closure of that investigation until the purported re-opening that had been announced in January 2015. During this four year interim period, there had been consistent and pervasive calls for the investigation to be re-opened, including from the applicant ’ s representatives, from NGO ’ s such as AI, Human Rights Watch, Redress, the Human Rights Monitoring Institute, the Constitution Project, from the head of the Lithuanian Parliamentary Committee, from Senator Dick Marty, the European Parliament, the Human Rights Council ’ s Special Rapporteur on Terrorism, the UN Committee against Torture, and others. The Prosecutor had been alerted to a growing body of evidence, not encompassed in the original, cursory investigation, but had failed to follow leads. 597. The lack of thoroughness and effectiveness of the investigation was apparent in various ways. It was apparent from the limited scope of the investigation. An investigation in a case of this type must look at crimes and reflect the nature and gravity of the violations at the heart of the case; in this case, torture, mistreatment of persons and forced disappearance, for example. However, the public statements and information provided to the Court had suggested a much narrower framing, limited previously to possible “abuse of office” offences, more recently perhaps to the crime of transfer. One of the implications of the focus on less grave crimes was the suggestion that had been advanced by the Prosecutor when closing the initial investigation, that the crimes in question might be subject to a statute of limitations; and in the applicant ’ s view this would also entail a violation of Convention obligations. A thorough investigation, he argued, should also embrace the full range of those potentially responsible, directly and indirectly. In this case there was nothing to suggest any intention or effort to investigate and hold to account the full range of Lithuanian and foreign US agents, at all levels, who had together engaged in this international criminal conspiracy. Most notably, the lack of thoroughness and effectiveness was seen in the failure of the Prosecutor ’ s Office to take basic investigative steps that it had been called upon to take for many years. 598. The information from the prosecution file suggested, for example, that there had not been an attempt to take testimony from key eye-witnesses, including local inhabitants of the area, from foreign officials, agents, contractors, psychologists, pilots crew or brokers, interrogators at the heart of this case, several of whom had now publicly confessed to their involvement in Abu Zubaydah ’ s rendition and torture, or from witnesses at the highest levels of authority within the Lithuanian Government. There had not been an investigation into key rendition flights including one of those entering Lithuania from Morocco on the relevant dates. 599. Finally and critically, in the applicant ’ s submission, the Convention ’ s requirements of transparency and the essential element of public scrutiny had been flouted in this case. The Prosecutor ’ s Office had refused to respond to or share information with the applicant, other victims, or with the public, or to cooperate adequately with international inquiries. The process had been shielded by an excessive and overreaching approach to State secrecy. The 2010 investigation had been closed on the basis that there was no remaining doubt concerning detainees, though even the partially redacted summary version of the evidence from the Prosecutor ’ s file made it clear that the evidence supported the applicant ’ s case and certainly could not plausibly justify closure. While there had been public statements on the purported re-opening of the investigation, the State had notably provided no information in its written submissions about any progress in that investigation, despite being asked by the Court to do so explicitly and despite being permitted to present a summary investigative file to the Court on a confidential basis. 600. In sum, Lithuania had categorically failed to meet its Convention obligations. 2. Joint submissions by Amnesty International (AI) and the International Commission of Jurists (ICJ) on “effective investigation” 601. AI/ICJ, relying on the Court ’ s case-law, submitted that a duty to investigate implied an obligation to act “with the required determination to identify and prosecute those responsible”. Criminal proceedings were a critical aspect of ensuring an effective remedy for gross violations of Convention rights. They were the primary means through which the victims ’ right to the truth could be given effect, including in respect of identifying the perpetrators. Although there was no right guaranteeing the prosecution or conviction of a particular person, prosecuting authorities had to, where the facts so warranted, take the necessary steps to bring those who had committed serious human rights violations to justice”. 602. As regards the State parties ’ involvement or complicity in systematic human rights violations such as those that had occurred in the CIA secret detention and rendition programme, failure to conduct timely an effective investigations or prosecutions in appropriate cases would violate the Convention rights, including rights under Articles 3 and 5 ECHR, and would seriously undermine public confidence in Contracting Parties ’ adherence to the rule of law throughout the Council of Europe. 603. Furthermore, the State ’ s duty to initiate and continue an investigation could not be limited by the fact that alleged victims found themselves in situations where it was impossible for them to produce evidence of violations of their Convention rights. This was the case not only regarding detention by public authorities, but also in cases of detention by third parties. Where an individual was held within the exclusive control of the authorities, and there was a prima facie indication that the State might have been involved in the violations alleged, the burden of proof in establishing the violations shifted on the State, since the events in issue might lie wholly, or in large part, within the exclusive knowledge of the authorities. These principles applied in cases of forced disappearances, including those within the extraordinary rendition programme. 604. In order to be effective, an investigation had to be initiated promptly once the matter had come to the attention of the authorities and must be conducted with reasonable expedition. As regards the latter requirement, the Court had, for instance, criticised situations where multiple adjournments of an investigation had occurred. The obligation to ensure an effective investigation would not be met where significant delays were combined with a restricted scope of a criminal investigation – for example, one which focused only on offences which were subject to limitation periods under domestic law, when the allegations related to offences that were not time-barred under international law. Nor could any investigation lacking the necessary public scrutiny be regarded as compatible with Article 3 of the Convention. 605. Lastly, the interveners, referring to El-Masri (cited above) and the right to the truth, maintained that the right to an effective investigation, under, inter alia, Articles 3 and 5, taken together with Article 13, entailed a right to the truth concerning the violations of Convention rights perpetrated in the context of the “secret detentions and renditions system”. This was so, not only because of the scale and severity of the human rights violations concerned, but also in the light of the widespread impunity for these practices, and the suppression of information about them, which had persisted in multiple national jurisdictions. Where renditions or secret detentions had taken place with the co-operation of Contracting Parties to the Convention, or in violation of those States ’ positive obligations of prevention, the positive obligations of those States required that they take all reasonable measures open to them to disclose to victims, their families and society as a whole information about the human rights violations that those victims suffered within the renditions system. 3. The Court ’ s assessment (a) Admissibility 606. The Court takes the view that the applicant ’ s complaint under the procedural aspect of Article 3 raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. Furthermore, the Court has already found that the Government ’ s objection based on non-compliance with the rule of exhaustion of domestic remedies and with the six-month rule should be joined to the merits of this complaint (see paragraph 4 22 above). Consequently, it cannot be considered that the complaint is manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. No other ground for declaring it inadmissible having been established, the complaint must therefore be declared admissible. (b) Merits (i) Applicable general principles deriving from the Court ’ s case-law 607. Where an individual raises an arguable claim that he has suffered treatment infringing Article 3 at the hands of agents of the respondent State or, likewise, as a result of acts performed by foreign officials with that State ’ s acquiescence or connivance, that provision, read in conjunction with the Contracting States ’ general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in ... [the] Convention”, requires by implication that there should be an effective official investigation. Such investigation should be capable of leading to the identification and – where appropriate – punishment of those responsible. Otherwise, the general legal prohibition of torture and inhuman and degrading treatment and punishment would, despite its fundamental importance, be ineffective in practice and it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity (see, among other examples, Assenov and Others v. Bulgaria, 28 October 1998, § 102, Reports of Judgments and Decisions 1998 ‑ VIII; Ilaşcu and Others, cited above, §§ 318, 442, 449 and 454; El ‑ Masri, cited above, § 182; Al Nashiri v. Poland, cited above, § 485; Husayn (Abu Zubaydah) v. Poland, cited above, § 479; Cestaro v. Italy, no. 6884/11, §§ 205-208, 7 April 2015; Nasr and Ghali, cited above, § 262; see also Armani Da Silva v. the United Kingdom [GC], no. 5878/08, § 233, ECHR 2016 ). 608. The investigation into serious allegations of ill-treatment must be both prompt and thorough. That means that the authorities must act of their own motion once the matter has come to their attention and must always make a serious attempt to find out what happened and should not rely on hasty or ill-founded conclusions to close their investigation or to use as the basis of their decisions. They must take all reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony and forensic evidence. Any deficiency in the investigation which undermines its ability to establish the cause of injuries or the identity of the persons responsible will risk falling foul of this standard. The investigation should be independent of the executive. Independence of the investigation implies not only the absence of a hierarchical or institutional connection, but also independence in practical terms. Furthermore, the victim should be able to participate effectively in the investigation in one form or another (see, El-Masri, cited above, §§ 183 ‑ 185; Al-Skeini and Others v. the United Kingdom [GC], no. 55721/07, § 167; Al Nashiri v. Poland, cited above, § 486; and Husayn (Abu Zubaydah) v. Poland, cited above, § 480). 609. Even if there is a strong public interest in maintaining the secrecy of sources of information or material, in particular in cases involving the fight against terrorism, it is essential that as much information as possible about allegations and evidence should be disclosed to the parties in the proceedings without compromising national security. Where full disclosure is not possible, the difficulties that this causes should be counterbalanced in such a way that a party can effectively defend its interests (see Al Nashiri v. Poland, cited above, § 494-495; and Husayn (Abu Zubaydah) v. Poland, cited above, § 488-489, both judgments with further references to the Court ’ s case-law ). 610. Furthermore, where allegations of serious human rights violations are involved in the investigation, the right to the truth regarding the relevant circumstances of the case does not belong solely to the victim of the crime and his or her family but also to other victims of similar violations and the general public, who have the right to know what has happened. An adequate response by the authorities in investigating allegations of serious human rights violations may generally be regarded as essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of impunity, collusion in or tolerance of unlawful acts. For the same reasons, there must be a sufficient element of public scrutiny of the investigation or its results to secure accountability in practice as well as in theory (see El ‑ Masri, cited above, §§191-192; Al Nashiri v. Poland, cited above, § 495; and Husayn (Abu Zubaydah) v. Poland, cited above, § 489, with further references to the Court ’ s case ‑ law ). (ii) Application of the above principles to the present case 611. The Court, having regard to the fact that the Prosecutor General ’ s Office opened the pre-trial investigation within a few days after the Seimas Resolution of 19 January 2010 endorsing the CNSD Findings and recommendations (see paragraphs 17 4 and 17 9 above), does not consider that the authorities failed to give a prompt response to the public allegations suggesting Lithuania ’ s possible complicity in the CIA extraordinary rendition programme. Nor can it be said that during the subsequent six months the authorities failed to display procedural activity. From 10 February to 14 June 2010 the prosecutor took evidence from fifty-five witnesses, including some high political post-holders, the SSD officers, the SBGS, and the airport authorities and employees. Over that period numerous requests for information were addressed to various bodies, including the relevant ministries, airports, the aviation authorities, the Customs Service and others. The prosecution also consulted classified material of the parliamentary inquiry and carried out on-site inspections of Project No. 1 and Project No. 2 (see paragraphs 1 81 - 190 above). 612. However, it does not appear that, after June 2010, any further actions were taken, apart from responding to correspondence from Reprieve, which had addressed the prosecutor in connection with the suspicion that the applicant had been secretly detained in a CIA detention facility in Lithuania. The first letter, of 20 September 2010, in which Reprieve asked the prosecution to investigate the matter, gave a fairly extensive description of the applicant ’ s detention in other countries, before his alleged rendition to Lithuania. It indicated the putative period of his detention, which was situated between spring 2004 and September 2006 and matched the repeated movements of the CIA-linked aircraft through Lithuania ’ s airspace, which were the object both of the parliamentary inquiry and current investigation. The prosecution replied that these circumstances had already been covered by the pending investigation. No action was taken. In the second letter, of 18 November 2010, Reprieve asked the prosecutor to attempt to interview the applicant under the bilateral agreement on mutual legal assistance in criminal matters between the USA and Lithuania and, in addition, made eight motions for taking evidence from various sources, including the US CIA officials and Lithuanian officials listed by name, eyewitnesses, forensic evidence, companies involved in flights and many others. It also asked for information about the progress of the investigation On 13 January 2011 the prosecutor refused the request since Reprieve “was not party to the proceedings [with] the right to examine the material of the pre-trial investigation”. None of the proposed actions were taken. The next day the prosecutor discontinued the investigation, finding that there had been no evidence demonstrating “illegal transportation of anyone”, by the CIA, including of the applicant, into or out of Lithuania (see paragraphs 1 91 -19 5 above). 613. The Court observes that the Government have stated that the prosecutor ’ s decision was based on the fact that Reprieve had not provided any new evidence apart from the information already in the public domain and available to the authorities. This, however, does not explain the lack of any attempt to consider evidential motions which do not appear to have been unreasonable or unrelated to the object of the investigation. 614. It is not the Court ’ s role to advise the domestic authorities about which evidence is to be admitted and which is to be refused, but their decisions in that respect are subject to the Court ’ s scrutiny for compliance with the requirements of an “effective and thorough investigation”. According to the Courts case-law, as stated above, the authorities must “always make a serious attempt to find out what happened and should not rely on hasty or ill-founded conclusions to close their investigation or to use as the basis of their decisions” (see paragraph 6 08 above, with references to the Court ’ s case-law). 615. In that regard, the Court cannot but note that the prosecutor had in his possession personal details, including passports numbers, of the five US citizens who arrived on the CIA plane N787WH at Palanga airport on 18 February 2005 (see paragraph 3 71 above). Also, despite the fact that the case involved allegations of a large-scale rendition scheme operated by the CIA and that it was clearly established in the investigation that the CIA ‑ linked aircraft “did arrive and did depart” from Lithuania at the material time (see paragraph 19 8 above), the prosecutor apparently made no effort to identify, and to obtain evidence from, US citizens who could have been involved in the “partnership cooperation” with the SSD by means of formal requests for legal assistance to the US authorities. In the light of the material before the Court such formal requests were only made in the proceedings that were re-opened in January 2015 (see paragraphs 209 ‑ 210 and 59 5 above). 616. The Court also takes note of concerns regarding the adequacy of the investigation expressed in the 2011 CPT Report. In particular, the CPT stated that, given that the investigation had related to a possible abuse of power, “the question [arose] whether [it] ... [was] sufficiently wide in scope to qualify as comprehensive”. When the CPT delegation raised the issue of the scope of the investigation with the Prosecutor General ’ s Office, they replied that “facts” were needed to launch a criminal investigation, not “assumptions” (see paragraph 35 3 above). 617. After the investigation was discontinued on 14 January 2011, in 2011-2013 the Lithuanian prosecutors received repeated requests from non ‑ governmental organisations and appeals from the European Parliament to resume the proceedings in order to consider newly emerging evidence (see paragraphs 20 1 -20 5 and 290 -295 above). No response was given. Until the publication of the 2014 US Senate Committee Report and receipt of the detailed 2015 Reprieve Briefing – to which, according to Mr Black, the prosecutor has not so far responded either – the authorities remained totally passive (see paragraphs 20 6 and 39 5 above). Moreover, on the basis of the Government ’ s summary description of the fresh investigation, ongoing since 22 January 2015, it does not appear that any meaningful progress in investigating Lithuania ’ s complicity in the CIA HVD Programme and identifying the persons responsible has so far been achieved (see paragraphs 20 6-211 above). 618. Nor does it seem that any information from the 2010-2011 investigation or the fresh proceedings regarding their conduct has been disclosed to the public. The Government have argued that the 2010-2011 investigation was transparent and subject to public scrutiny since part of the material was declassified in the context of the proceedings before the Court (see paragraph 59 2 above). However, the Court notes that this material had not been publicly accessible until the public hearing in the present case held on 29 June 2016, at which the Government withdrew their request to apply Rule 33 § 2 to all documents submitted by them, except to the extent necessary to ensure the protection of personal data (see paragraphs 11 and 13 above). It further notes that both Reprieve and Amnesty International were either denied any information about the progress and scope of the investigation or refused access – even restricted – to the investigation file, or had their requests to that effect left unanswered (see paragraphs 19 5 and 2 01 -20 5 above). Furthermore, as stated in the 2011 CPT Report, the CPT ’ s delegation “did not receive the specific information it requested” about the investigation. In that context, the CPT also expressed doubts as to whether “all the information that could have been provided to [it] about the conduct of the investigation ha[d] been forthcoming” and whether the investigation was sufficiently thorough, “given the paucity of the information currently available” (see § 72 of the Report cited in paragraph 3 53 above). 619. The Court would emphasise that the importance and gravity of the issues involved require particularly intense public scrutiny of the investigation. The Lithuanian public has a legitimate interest in being informed of the criminal proceedings and their results. It therefore falls to the national authorities to ensure that, without compromising national security, a sufficient degree of public scrutiny is maintained in respect to the investigation (see Al Nashiri v. Poland, cited above, § 497 and Husayn (Abu Zubaydah) v. Poland, cited above, § 489). 620. The Court would further underline that the securing of proper accountability of those responsible for enabling the CIA to run Detention Site Violet on Lithuanian territory is conducive to maintaining confidence in the adherence of the Lithuanian State ’ s institutions to the rule of law. The applicant and the public have a right to know the truth regarding the circumstances surrounding the extraordinary rendition operations in Lithuania and his secret detention and to know what happened at the material time. A victim who has made a credible allegation of being subjected to ill-treatment in breach of Article 3 of the Convention has the right to obtain an accurate account of the suffering endured and the role of those responsible for his ordeal (see paragraph 6 10 above; see also Association “21 December 1989” and Others v. Romania, nos. 33810/07 and 18817/08, § 144, 24 May 2011; Al Nashiri v. Poland, cited above, § 495; and Husayn (Abu Zubaydah) v. Poland, cited above, § 487 ). 621. Having regard to the above deficiencies of the impugned proceedings, the Court considers that Lithuania has failed to comply with the requirements of an “effective and thorough” investigation for the purposes of Article 3 of the Convention. 622. Accordingly, the Court dismisses the Government ’ s preliminary objections of non-exhaustion of domestic remedies and non-compliance with the six-month rule (see paragraphs 41 3 -41 7 above) and finds that there has been a violation of Article 3 of the Convention, in its procedural aspect. B. Substantive aspect of Article 3 1. The parties ’ submissions (a) The Government 623. The Government submitted that, having regard to Lithuania ’ s lack of jurisdiction as invoked above, they would refrain from making any observations on the merits of the applicant ’ s complaint under the substantive limb of Article 3 of the Convention. (b) The applicant 624. The applicant submitted that Lithuania had known, or ought to have known about the CIA ’ s secret detention and extraordinary rendition programme, the secret CIA prison in Lithuania, and the torture and cruel, inhuman and degrading treatment to which the CIA had subjected high ‑ value detainees as part of this programme. 625. He therefore asked the Court to follow Husayn (Abu Zubaydah) v. Poland (cited above), and find a violation of Article 3 of the Convention. In his view, there was no doubt that the standard conditions of detention and transfer to which he had been subjected, the nature of the interrogation techniques having been used against him and the secrecy of his detention itself amounted to torture and cruel, inhuman and degrading treatment. This was confirmed by disclosures in the 2014 US Senate Committee Report, which had clearly shown that the extent of the extreme brutality and cruelty of the CIA HVD Programme had gone beyond what had been known when the Court had adopted the above judgment. 626. In the applicant ’ s submission, the cumulative effect of the features of his rendition and secret detention showed beyond reasonable doubt that he was a victim of treatment prohibited by Article 3. In that regard, he referred to the complete arbitrariness of the rendition programme, the uncertainty as to his fate, which had been entirely in the hands of his captors and abusers, and the deliberate manipulation of fear and disorientation, which had been designed to and had in fact resulted in a long-term psychological impact. Furthermore, the prolonged duration of the secret incommunicado detention compounded its intensity and effect. The applicant had been held: in secret, unacknowledged detention for a prolonged period of several years, from the date of his arrest on 27 March 2002, at least until his transfer to the custody of the US Department of Defence at the US Naval Base at Guantànamo Bay on 5 September 2006. This period included over one year of secret detention in Lithuania. 627. Lithuania had been under a positive obligation under Article 3 to protect him from torture and other forms of ill-treatment by the CIA on its territory and to prevent his transfer from its territory to other CIA secret detention facilities, which had exposed to him to further torture, ill ‑ treatment and abuse in CIA custody. However, the authorities, despite the fact that at the relevant time they knew and ought to have known, that under the HVD Programme CIA prisoners had been subjected to interrogation methods and other practices manifestly incompatible with the Convention, had failed to prevent his transfer to other secret CIA detention sites elsewhere, thus exposing him to a continued and prolonged risk of treatment contrary to Article 3 of the Convention. 2. The Court ’ s assessment (a) Admissibility 628. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. (b) Merits (i) Applicable general principles deriving from the Court ’ s case-law 629. Article 3 of the Convention enshrines one of the most fundamental values of democratic societies. Unlike most of the substantive clauses of the Convention, Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15 § 2 even in time of war or other public emergency threatening the life of the nation (see, among many other examples, Soering, cited above, § 88; Selmouni, cited above, § 95; Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000 ‑ IV; Ilaşcu and Others cited above, § 424; Shamayev and Others v. Georgia and Russia, no. 36378/02, § 375, ECHR 2005 ‑ III; El-Masri, cited above, § 195; see also Al-Adsani v. the United Kingdom [GC], no. 35763/97, § § 26-31, ECHR 2001 ‑ XI). Even in the most difficult circumstances, such as the fight against terrorism and organised crime, the Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the conduct of the person concerned (see Chahal v. the United Kingdom, 15 November 1996, § 79, Reports 1996-V; see Labita, cited above, § 119; Öcalan v. Turkey [GC], no. 46221/99, § 179, ECHR 2005 ‑ IV; El-Masri, cited above, § 195; Al Nashiri v. Poland, cited above, § 507; Husayn (Abu Zubaydah) v. Poland, cited above, § 499; and Nasr and Ghali, cited above, § 280). 630. In order for ill-treatment to fall within the scope of Article 3 it must attain a minimum level of severity. The assessment of this minimum depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim (see Ireland v. the United Kingdom, cited above, § 162; Kudła v. Poland [GC], no. 30210/96, § 92, ECHR 2000 ‑ XI; and Jalloh, cited above, § 67). Further factors include the purpose for which the treatment was inflicted together with the intention or motivation behind it (compare, inter alia, Aksoy v. Turkey, 18 December 1996, § 64, Reports 1996-VI; Egmez v. Cyprus, no. 30873/96, § 78, ECHR 2000-XII; Krastanov v. Bulgaria, no. 50222/99, § 53, 30 September 2004; and El ‑ Masri, cited above, § 196). Treatment has been held by the Court to be “inhuman” because, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical and mental suffering, and also “degrading” because it was such as to arouse in its victims feelings of fear, anguish and inferiority capable of humiliating and debasing them (see Labita, cited above, § 120). In order to determine whether any particular form of ill-treatment should be classified as torture, the Court must have regard to the distinction drawn in Article 3 between this notion and that of inhuman or degrading treatment. This distinction would appear to have been embodied in the Convention to allow the special stigma of “torture” to attach only to deliberate inhuman treatment causing very serious and cruel suffering (see Aksoy, cited above, § 62). In addition to the severity of the treatment, there is a purposive element, as recognised in the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which came into force on 26 June 1987, which defines torture in terms of the intentional infliction of severe pain or suffering with the aim, inter alia, of obtaining information, inflicting punishment or intimidating (Article 1 of the United Nations Convention) (see İlhan v. Turkey [GC], no. 22277/93, § 85, ECHR 2000 ‑ VII; El-Masri, cited above, § 197; Al Nashiri v. Poland, cited above, § 508; and Husayn (Abu Zubaydah ) v. Poland, cited above, § 500). 631. Furthermore, a threat of conduct prohibited by Article 3, provided it is sufficiently real and immediate, may fall foul of that provision. Thus, to threaten an individual with torture may constitute at least inhuman treatment (see Gäfgen v. Germany [GC], no. 22978/05, § 91, ECHR 2010; and Husayn (Abu Zubaydah ) v. Poland, cited above, § 501). 632. The obligation on the High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken together with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment or punishment, including such ill-treatment administered by private individuals (see A. v. the United Kingdom, 23 September 1998, § 22, Reports 1998 ‑ VI; and Z and Others v. the United Kingdom [GC], no. 29392/95, § 73, ECHR 2001 ‑ V). The State ’ s responsibility may therefore be engaged where the authorities fail to take reasonable steps to avoid a risk of ill-treatment about which they knew or ought to have known (see Mahmut Kaya v. Turkey, no. 22535/93, § 115, ECHR 2000 ‑ III; El ‑ Masri, cited above, § 198; Al Nashiri v. Poland, cited above, § 509; Husayn (Abu Zubaydah ) v. Poland, cited above, § 502; and Nasr and Ghali, cited above, § 283 ). (ii) Application of the above principles to the present case 633. The Court has already found that the applicant ’ s assertions concerning his secret detention in Lithuania from 17 or 18 February 2005 to 25 March 2006 and his transfer from Lithuania to another CIA “black site” on the latter date have been proved before Court and that those facts are established beyond reasonable doubt (see paragraph 54 8 above). It remains to be determined whether the treatment to which he was subjected during his detention falls within the ambit of Article 3 of the Convention and, if so, whether and to what extent it can be attributed to the respondent State (see paragraph 587 above). (α) Treatment to which the applicant was subjected at the relevant time 634. In the light of the material in the case file, as the Court has already pointed out, it does not appear that at Detention Site Violet the applicant was subjected to the EITs in connection with interrogations, although there are indications that he must have been continually interrogated or “debriefed” by the CIA during the entire period of his secret detention (see paragraphs 5 50 -5 52 above). In that regard, the Court also notes that on 27 March 2007, at the hearing before the Combatant Status Review Tribunal in Guantánamo the applicant, after relating the ordeal to which he had been subjected in CIA custody, stated that “after the second – or second – after one complete year, two year, they start[ed] tell[ing] me the time for the pray[ers] and slowly, slowly circumstances [had become] good”. However, that statement must be read in the context of the treatment inflicted on him previously and in the light of what had happened to him before. The description of his plight given by the applicant at the above hearing and records of his statements in the 2007 ICRC Report give a shocking account of the particularly cruel treatment to which he had been subjected in CIA custody, from the waterboarding, being slammed against the wall and kept naked for days or months on end, through the confinement in a coffin ‑ shaped box, to sleep deprivation, prolonged stress positions, exposure to cold temperature and food deprivation (see paragraphs 1 51 -15 3 and 29 9 above; see also Husayn (Abu Zubaydah) v. Poland, cited above, §§ 102-107 and 508). The Court considers that the applicant ’ s experience in CIA custody prior to his detention in Lithuania is an important factor to be taken into account in its assessment of the severity of the treatment to which he was subsequently subjected (ibid.). 635. The Court has established beyond reasonable doubt that during his detention in Lithuania the applicant was kept – as any other CIA detainee – under the regime of “standard conditions of confinement” laid down in the DCI Confinement Guidelines. That regime included, as a matter of fixed, predictable routine, blindfolding or hooding of the detainees, designed to disorient them and keep from learning their location or the layout of the detention facility; removal of hair upon arrival at the site; incommunicado, solitary confinement; continuous noise of high and varying intensity played at all times; continuous light such that each cell was illuminated to about the same brightness as an office; and use of leg shackles in all aspects of detainee management and movement (see paragraphs 54-56 and 5 52 above). Conditions of confinement were an integral part of the CIA interrogation scheme and served the same purposes as interrogation measures, namely to “dislocate psychologically” the detainee, to “maximise his feeling of vulnerability and helplessness” and “reduce or eliminate his will to resist ... efforts to obtain critical intelligence” (see paragraphs 46-53 above). 636. A complementary description of the applicant ’ s conditions of detention throughout the entire period that he spent in CIA custody can also be found in the 2007 ICRC Report. According to that description, based on the applicant ’ s own account and on that of thirteen other high-value detainees ’ they “had no knowledge of where they were being held, no contact with persons other than their interrogators or guards”; and “even the guards were usually masked and, other than the absolute minimum, did not communicate in any way with detainees”. None of the detainees “had any real – let alone regular – contact with other persons detained, other than occasionally for the purposes of inquiry when they were confronted with another detainee”. They had “no access to news from the outside world, apart from the later stages of their detention when some of them occasionally received printouts of sports news from the Internet and one reported receiving newspapers”. The situation was further exacerbated by other aspects of the detention regime, such as deprivation of access to the open air and exercise, lack of appropriate hygiene facilities and deprivation of basic items in pursuance of interrogations (see paragraph 299 above). 637. Referring to the general situation in the CIA secret prisons, the 2014 US Senate Committee Report states that “the conditions of confinement for CIA detainees were harsher than [those] the CIA represented to the policymakers and others” and describes them as being “poor” and “especially bleak early in the programme” (see paragraph 84 above). It further states that in respect of the conditions of detention the DCI Confinement Guidelines of 28 January 2003 set forth minimal standards and required only that the facility be sufficient to meet “basic health needs”. That, according to the report, in practice meant that a facility in which detainees were kept shackled in complete darkness and isolation, with a bucket for a human waste and without heating during the winter months met that standard (see paragraphs 5 4 -5 6 and 7 7 above). 638. As regards the impact of the regime on the CIA detainees, the 2014 US Senate Committee Report states that “multiple CIA detainees who were subjected to the CIA ’ s enhanced interrogation techniques and extended isolation exhibited psychological and behavioural issues, including hallucinations, paranoia, insomnia and attempts at self-harm and self ‑ mutilation” and that “multiple psychologists identified the lack of human contact experienced by detainees as a cause of psychiatric problems” (see paragraph 7 7 above). In the CIA ’ s declassified documents, adverse effects of extreme isolation to which HVDs were subjected have been recognised as imposing a “psychological toll” and capable of altering “the detainee ’ s ability to interact with others” (see paragraph 5 6 above). 639. For the purposes of its ruling the Court does not find it necessary to analyse each and every aspect of the applicant ’ s treatment in detention, the physical conditions in which he was detained in Lithuania or the conditions in which he was transferred to and out of Lithuania. While the intensity of the measures inflicted on him by the CIA might have varied, the predictability of the CIA ’ s regime of confinement and treatment routinely applied to the high-value detainees give sufficient grounds for the Court to conclude that the above described standard measures were used in respect of the applicant in Lithuania and likewise elsewhere, following his transfer from Lithuania, as an integral part of the HVD Programme (see also Al Nashiri v. Poland, cited above, §§ 514-515; and Husayn (Abu Zubaydah) v. Poland, cited above, § 510). 640. Considering all the elements, the Court finds that during his detention in Lithuania the applicant was subjected to an extremely harsh detention regime including a virtually complete sensory isolation from the outside world and suffered from permanent emotional and psychological distress and anxiety also caused by the past experience of torture and cruel treatment in the CIA ’ s hands and fear of his future fate. Even though at that time he had apparently not been subjected to interrogations with the use of the harshest methods, the applicant – having beforehand experienced the most brutal torture, (see Husayn (Abu Zubaydah) v. Poland, cited above, §§ 86 ‑ 89, 99-102, 401 and 416-417; see also paragraphs 149-152 and 296 above) – inevitably faced the constant fear that, if he failed to “comply”, the previous cruel treatment would at any given time be inflicted on him again. Thus, Article 3 of the Convention does not refer exclusively to the infliction of physical pain but also to that of mental suffering, which is caused by creating a state of anguish and stress by means other than bodily assault (see El-Masri, cited above, § 202; and Husayn (Abu Zubaydah) v. Poland, cited above, §§ 509-510). Consequently, having regard to the regime of detention to which the applicant must have been subjected in Lithuania and its cumulative effects on him, the Court finds that the treatment complained of is to be characterised as having involved intense physical and mental suffering falling within the notion of “inhuman treatment” under Article 3 of the Convention (see paragraphs 6 30 -6 31 above, with references to the Court ’ s case-law). (β) Court ’ s conclusion as to Lithuania ’ s responsibility 641. The Court has already found that the Lithuanian authorities knew of the nature and purposes of the CIA ’ s activities on its territory at the material time and cooperated in the preparation and execution of the CIA extraordinary rendition, secret detention and interrogation operations on Lithuanian territory. It has also found that, given their knowledge and involvement in the execution of the HVD Programme the Lithuanian authorities knew that, by enabling the CIA to detain terrorist suspects – including the applicant – on Lithuania ’ s territory, they were exposing them to a serious risk of treatment contrary to the Convention (see paragraph 57 6 above). 642. It is true that in the assessment of the experts – which the Court has accepted – the Lithuanian authorities did not know the details of what exactly happened inside Detention Site Violet or witnessed the treatment to which the CIA ’ s detainees were subjected. The running of the detention facility was entirely in the hands of and controlled by the CIA. It was the CIA personnel who were responsible for the physical conditions of confinement, interrogations, debriefings, ill-treatment and inflicting of torture on detainees (see paragraphs 57 1-575 above). However, under Article 1 of the Convention, taken together with Article 3, Lithuania was required to take measures designed to ensure that individuals within its jurisdiction were not subjected to torture or inhuman or degrading treatment or punishment, including ill-treatment administered by private individuals (see paragraph 6 32 above). Notwithstanding the above Convention obligation, the Lithuanian authorities, for all practical purposes, facilitated the whole process of the operation of the HVD Programme on their territory, created the conditions for it to happen and made no attempt to prevent it from occurring. As held above, on the basis of their own knowledge of the CIA activities deriving from Lithuania ’ s complicity in the HVD Programme and from publicly accessible information on treatment applied in the context of the “war on terror” to terrorist-suspects in US custody the authorities – even if they did not see or participate in the specific acts of ill-treatment and abuse endured by the applicant and other HVDs – must have been aware of the serious risk of treatment contrary to Article 3 occurring in the CIA detention facility on Lithuanian territory. Accordingly, the Lithuanian authorities, on account of their “acquiescence and connivance” in the HVD Programme must be regarded as responsible for the violation of the applicant ’ s rights under Article 3 of the Convention committed on their territory (see paragraph 592; see also El ‑ Masri, cited above, §§ 206 and 211; Al Nashiri v. Poland, cited above, § 517; and Husayn (Abu Zubaydah) v. Poland, cited above, § 512). 643. Furthermore, the Lithuanian authorities were aware that the transfer of the applicant to and from their territory was effected by means of “extraordinary rendition”, that is, “an extra-judicial transfer of persons from one jurisdiction or State to another, for the purposes of detention and interrogation outside the normal legal system, where there was a real risk of torture or cruel, inhuman or degrading treatment” (see El-Masri, cited above, § 221; Al Nashiri v. Poland, cited above, § 518; and Husayn (Abu Zubaydah) v. Poland, cited above, § 513). In these circumstances, the possibility of a breach of Article 3 was particularly strong and should have been considered intrinsic in the transfer (see paragraphs 579-580 above). Consequently, by enabling the CIA to transfer the applicant out of Lithuania to another detention facility, the authorities exposed him to a foreseeable serious risk of further ill-treatment and conditions of detention in breach of Article 3 of the Convention. 644. There has accordingly been a violation of Article 3 of the Convention, in its substantive aspect. V. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION 645. The applicant complained that Lithuania had enabled the CIA to hold him on its territory in secret, unacknowledged detention, which had been imposed and implemented outside any legal procedures and designed to ensure the complete denial of any safeguards contained in Article 5 of the Convention. In addition, by enabling the CIA to transfer him from Lithuanian territory to other secret CIA detention facilities elsewhere, it had exposed him to a real and serious of risk further undisclosed detention. He alleged a breach of Article 5 of the Convention, which reads as follows: “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a) the lawful detention of a person after conviction by a competent court; (b) the lawful arrest or detention of a person for non- compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law; (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; (d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority; (e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants; (f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition. 2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him. 3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial. 4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. 5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.” A. The parties ’ submissions 1. The Government 646. The Government reiterated their position that Lithuania lacked responsibility under the Convention and refrained from making any observations on the admissibility and merits of this complaint. 2. The applicant 647. The applicant, relying on El-Masri, Al Nashiri v. Poland and Husayn (Abu Zubaydah) v. Poland (all cited above), submitted that his rendition and secret detention had constituted arbitrary deprivation of liberty, defined by the Court as “anathema to the rule of law and the values protected by the Convention”. Accordingly, it had not been “in accordance with a procedure prescribed by law” and had, therefore, been in manifest violation of Article 5 § 1. 648. In the applicant ’ s submission, Lithuania ’ s acts and omissions in relation to the CIA HVD Programme as applied to the applicant on Lithuanian territory had also amounted to a breach of its positive obligations under Article 5. Thus, where persons directly responsible for deprivation of liberty of an individual were not the State authorities, but private persons, or another State ’ s authorities, the State ’ s responsibility would be engaged where it had failed to meet its positive duty to protect those within its territory and jurisdiction from arbitrary detention. The positive obligation to protect included an obligation to prevent deprivation of liberty of which the authorities had known or ought to have known, including by ensuring access to counsel and to judicial supervision and to regularly inspect places of confinement to ensure that detention was justified and that the safeguards enshrined in Article 5 had been provided. 649. Not only had Lithuania failed to comply with its positive obligations, it had also intentionally collaborated with the CIA to ensure that it could operate its HVD Programme on Lithuanian territory, outside the oversight or interference of any judicial body or institution. It had facilitated the operation of the CIA “black site” and the secrecy of that programme. The CIA secret prison could not have operated on Lithuanian territory without the support and assistance of the State authorities. 650. After being transferred out of Lithuania the applicant had continued to be subjected to CIA secret detention elsewhere, ultimately having been transferred to Guantánamo Bay, where he was currently being held. The Lithuanian authorities knew or ought to have known of the real and substantial risk that he would continue to be held under essentially the same regime of detention as that to which he had hitherto been subjected. At the time of his transfer, information about the treatment of detainees at Guantánamo Bay had been a matter of common knowledge. In view of the foregoing, the applicant asked the Court to find a violation of Article 5 of the Convention. B. The Court ’ s assessment 1. Admissibility 651. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. 2. Merits (a) Applicable general principles deriving from the Court ’ s case-law 652. The guarantees contained in Article 5 are of fundamental importance for securing the right of individuals in a democracy to be free from arbitrary detention at the hands of the authorities. It is for that reason that the Court has repeatedly stressed in its case-law that any deprivation of liberty must not only have been effected in conformity with the substantive and procedural rules of national law but must equally be in keeping with the very purpose of Article 5, namely to protect the individual from arbitrariness (see Chahal, cited above, § 118 and El-Masri, cited above, § 230 ). This insistence on the protection of the individual against any abuse of power is illustrated by the fact that Article 5 § 1 circumscribes the circumstances in which individuals may be lawfully deprived of their liberty, it being stressed that these circumstances must be given a narrow interpretation having regard to the fact that they constitute exceptions to a most basic guarantee of individual freedom (see Quinn v. France, 22 March 1995, § 42, Series A no. 311; and El-Masri, cited above, § 230). 653. It must also be stressed that the authors of the Convention reinforced the individual ’ s protection against arbitrary deprivation of his or her liberty by guaranteeing a corpus of substantive rights which are intended to minimise the risks of arbitrariness, by allowing the act of deprivation of liberty to be amenable to independent judicial scrutiny and by securing the accountability of the authorities for that act. The requirements of Article 5 §§ 3 and 4, with their emphasis on promptness and judicial supervision, assume particular importance in this context. Prompt judicial intervention may lead to the detection and prevention of life-threatening measures or serious ill-treatment which violate the fundamental guarantees contained in Articles 2 and 3 of the Convention (see Aksoy, cited above, § 76). What is at stake is both the protection of the physical liberty of individuals and their personal security in a context which, in the absence of safeguards, could result in a subversion of the rule of law and place detainees beyond the reach of the most rudimentary forms of legal protection (see El-Masri, cited above, § 231; Al Nashiri v. Poland, cited above, § 528; Husayn (Abu Zubaydah) v. Poland, cited above, § 522; and Nasr and Ghali, cited above, § 297). 654. Although the investigation of terrorist offences undoubtedly presents the authorities with special problems, that does not mean that the authorities have carte blanche under Article 5 to arrest suspects and detain them in police custody, free from effective control by the domestic courts and, in the final instance, by the Convention ’ s supervisory institutions, whenever they consider that there has been a terrorist offence (see Aksoy, cited above, § 78; and El-Masri, cited above, § 232 ). The Court emphasises in this connection that the unacknowledged detention of an individual is a complete negation of these guarantees and a most grave violation of Article 5. Having assumed control over an individual, the authorities have a duty to account for his or her whereabouts. For this reason, Article 5 must be seen as requiring the authorities to take effective measures to safeguard against the risk of disappearance and to conduct a prompt effective investigation into an arguable claim that a person has been taken into custody and has not been seen since (see Kurt v. Turkey, 25 May 1998, § § 123-124, Reports 1998 ‑ III; and El-Masri, cited above, § 233; see also Al Nashiri v. Poland, cited above, § 529; Husayn (Abu Zubaydah) v. Poland, cited above, § 523; and Nasr and Ghali, cited above, § 298). (b) Application of the above principles to the present case 655. In the previous cases concerning similar allegations of a breach of Article 5 arising from secret detention under the CIA HVD Programme in other European countries the Court found that the respondent States ’ responsibility was engaged and that they were in violation of that provision on account of their complicity in that programme and cooperation with the CIA (see El-Masri, cited above, § 241; Al Nashiri v. Poland, cited above, §§ 531-532; Husayn (Abu Zubaydah) v. Poland, cited above, §§ 525-526; and Nasr and Ghali, cited above, §§ 302-303). The Court does not see any reason to hold otherwise in the present case. 656. As the Court has held in Al Nashiri v. Poland (cited above, § 530) and Husayn (Abu Zubaydah) v. Poland (cited above, § 524), secret detention of terrorist suspects was a fundamental feature of the CIA rendition programme. The rationale behind the programme was specifically to remove those persons from any legal protection against torture and enforced disappearance and to strip them of any safeguards afforded by both the US Constitution and international law against arbitrary detention, to mention only the right to be brought before a judge and be tried within a reasonable time or the habeas corpus guarantees. To this end, the whole scheme had to operate outside the jurisdiction of the US courts and in conditions securing its absolute secrecy, which required setting up, in cooperation with the host countries, overseas detention facilities (see also paragraphs 22-23, 2 6 - 58 and 74-87 above). The rendition operations largely depended on the cooperation, assistance and active involvement of the countries which put at the USA ’ s disposal their airspace, airports for the landing of aircraft transporting CIA prisoners, and facilities in which the prisoners could be securely detained and interrogated, thus ensuring the secrecy and smooth operation of the HVD Programme. While, as noted above, the interrogations of captured terrorist suspects was the CIA ’ s exclusive responsibility and the local authorities were not to be involved, the cooperation and various forms of assistance by those authorities, such as the customising of the premises for the CIA ’ s needs or the provision of security and logistics, constituted the necessary condition for the effective operation of the CIA secret detention facilities (see Al Nashiri v. Poland, cited above, § 530; and Husayn (Abu Zubaydah) v. Poland, cited above, § 524 ). 657. In respect of the applicant ’ s complaint under the substantive aspect of Article 3 the Court has already found that the Lithuanian authorities were aware that he had been transferred from their territory by means of “extraordinary rendition” and that by enabling the CIA to transfer the applicant to its other secret detention facilities, exposed him to a foreseeable serious risk of further ill-treatment and conditions of detention in breach of Article 3 of the Convention (see paragraph 64 3 above). These conclusions are likewise valid in the context of the applicant ’ s complaint under Article 5. In consequence, Lithuania ’ s responsibility under the Convention is engaged in respect of both the applicant ’ s secret detention on its territory and his transfer from Lithuania to another CIA detention site. 658. There has accordingly been a violation of Article 5 of the Convention. VI. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 659. The applicant further complained that Lithuania had violated his rights under Article 8 by enabling the CIA to ill-treat him, to subject him to various forms of physical and mental abuse, to detain him incommunicado on its territory and to deprive him of any contact with his family or the outside world. Article 8 of the Convention reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. The parties ’ submissions 1. The Government 660. The Government restated their position that Lithuania lacked responsibility under the Convention and refrained from making any observations on the admissibility and merits of the complaint. 2. The applicant 661. The applicant submitted that under Article 8 of the Convention, the right to respect for private life covered the physical, psychological and moral integrity of the person, including, crucially, the mental health of an individual. The secret incommunicado detention had completely isolated him and removed his ability to interact with the outside world. The physical and psychological abuse to which he had been subjected in CIA custody constituted a serious breach of the right to the physical and psychological integrity of the person, which were integral aspects of Article 8. The absolute ban on contact with his family members or with the outside world had amounted to an interference with his private and family life, and with his correspondence. Secret detention, he added, being designed to remove the person from all contact with and support from the outside world, was the antithesis of the letter and spirit of Article 8 of the Convention. 662. The interference with his rights under Article 8 rights had had no legal basis and had not been “in accordance with the law”, whether Lithuanian or international. It had specifically pursued aims antithetical to the Convention, as it had been aimed at enhancing his vulnerability and removing him from the protection of the law, in order to achieve the all ‑ consuming end of unfettered intelligence gathering. It had not pursued any of the legitimate aims listed in paragraph 2 of Article 8, and could not be considered “necessary” or proportionate for the purposes of that provision. B. The Court ’ s assessment 1. Admissibility 663. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. 2. Merits 664. The notion of “private life” is a broad one and is not susceptible to exhaustive definition; it may, depending on the circumstances, cover the moral and physical integrity of the person. These aspects of the concept extend to situations of deprivation of liberty (see El-Masri, cited above, § 248, with further references to the Court ’ s case-law; Al Nashiri v. Poland, cited above, § 538; and Husayn (Abu Zubaydah) v. Poland, cited above, § 532). Article 8 also protects a right to personal development, including the right to establish and develop relationships with other human beings and the outside world. A person should not be treated in a way that causes a loss of dignity, as “the very essence of the Convention is respect for human dignity and human freedom” (see Pretty v. the United Kingdom, no. 2346/02, §§ 61 and 65, ECHR 2002-III). Furthermore, the mutual enjoyment by members of a family of each other ’ s company constitutes a fundamental element of family. In that context, the Court would also reiterate that an essential object of Article 8 is to protect the individual against arbitrary interference by the public authorities (see El-Masri, cited above, § 248; Al Nashiri v. Poland, cited above, §538; and Husayn (Abu Zubaydah) v. Poland, cited above, § 532). 665. Having regard to its conclusions concerning the respondent State ’ s responsibility under Articles 3 and 5 of the Convention (see paragraphs 64 3 and 65 7 above), the Court is of the view that Lithuania ’ s actions and omissions in respect of the applicant ’ s detention and transfer likewise engaged its responsibility under Article 8 of the Convention. Considering that the alleged interference with the applicant ’ s right to respect for his private and family life occurred in the context of the imposition of fundamentally unlawful, undisclosed detention, it must be regarded as not “in accordance with the law” and as inherently lacking any conceivable justification under paragraph 2 of that Article (see El-Masri, cited above, § 249; Husayn (Abu Zubaydah) v. Poland, cited above, § 533; and Al Nashiri v. Poland, cited above, § 539). 666. There has accordingly been a violation of Article 8 of the Convention. VII. ALLEGED VIOLATION OF ARTICLE 13 IN CONJUNCTION WITH ARTICLE 3 OF THE CONVENTION 667. The applicant complained that Lithuania had been in breach of Article 13 of the Convention, taken separately and in conjunction with Article 3, on account of having failed to carry out an effective, prompt and thorough investigation into his allegations of serious violations of the Convention. Article 13 of the Convention reads as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. The parties ’ submissions 668. The parties essentially reiterated their observations concerning the procedural aspect of Article 3 of the Convention (see paragraphs 59 2 - 600 above). 669. The Government maintained that that the pre-trial investigation had been thorough and effective and had, therefore, met the requirements of an “effective remedy” for the purposes of Article 13 of the Convention. 670. The applicant disagreed and said that the investigation had been superficial and that he had not been able to participate effectively in the proceedings. B. The Court ’ s assessment 1. Admissibility 671. The Court notes that this complaint is linked to the complaint under the procedural aspect of Article 3, which has been found admissible (see paragraph 6 0 6 above). It must likewise be declared admissible. 2. Merits (a) Applicable general principles deriving from the Court ’ s case-law 672. Article 13 guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. The effect of this Article is thus to require the provision of a domestic remedy allowing the competent national authority both to deal with the substance of the relevant Convention complaint and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their obligations under this provision. The scope of the obligation under Article 13 varies depending on the nature of the applicant ’ s complaint under the Convention. Nevertheless, the remedy required by Article 13 must be “effective” in practice as well as in law, in particular in the sense that its exercise must not be unjustifiably hindered by the acts or omissions of the authorities of the respondent State (see, among other authorities, Kaya v. Turkey, 19 February 1998, § 106, Reports 1998 ‑ I; and Mahmut Kaya, cited above, § 124). 673. Where an individual has an arguable claim that he has been ill ‑ treated by agents of the State, the notion of an “effective remedy” entails, in addition to the payment of compensation where appropriate, a procedure enabling a thorough and effective investigation capable of leading to the identification and punishment of those responsible and including effective access for the complainant to the investigatory procedure (see Anguelova v. Bulgaria, no. 38361/97, §§ 161-162, ECHR 2002 IV; Assenov and Others, cited above, §§ 114 et seq.; Aksoy, cited above, §§ 95 and 98; and El-Masri, cited above, § 255). 674. The requirements of Article 13 are broader than a Contracting State ’ s obligation under Articles 3 and 5 to conduct an effective investigation into the disappearance of a person who has been shown to be under their control and for whose welfare they are accordingly responsible (see, El-Masri, cited above, § 255, with further references to the Court ’ s case-law). 675. Given the irreversible nature of the harm that might occur if the risk of ill-treatment materialised and the importance the Court attaches to Article 3, the notion of an effective remedy under Article 13 requires independent and rigorous scrutiny of the claim of, or on behalf of, the individual concerned that there exist substantial grounds for fearing a real risk of treatment contrary to Article 3. This scrutiny must be carried out without regard to what the person may have done to warrant his expulsion or to any perceived threat to the national security of the State from which the person is to be removed (see Chahal, cited above, § 151 and El-Masri, cited above, § 257; see also Al Nashiri v. Poland, cited above, § 549; and Husayn (Abu Zubaydah) v. Poland, cited above, § 543). (b) Application of the above principles to the present case 676. The Court has already concluded that the respondent State is responsible for violations of the applicant ’ s rights under Articles 3, 5 and 8 of the Convention (see paragraphs 64 3-644, 65 7-658 and 66 5-666 above). The complaints under these Articles are therefore “arguable” for the purposes of Article 13 and the applicant should accordingly have been able to avail himself of effective practical remedies capable of leading to the identification and punishment of those responsible and to an award of compensation, as required by that provision (see paragraph 673 above; see also El-Masri, cited above, § 259; Al Nashiri v. Poland, cited above, § 550; and Husayn (Abu Zubaydah) v. Poland, cited above, § 544). For the reasons set out in detail above, the Court has found that the criminal investigation in Lithuania fell short of the standards of the “thorough and effective investigation” that should have been carried out in accordance with Article 3 (see paragraph 62 1 above). In these circumstances, none of the remedies relied on by the Government (see paragraphs 41 3 -41 6 above), whether civil or criminal, would have been “effective” in practice. For the reasons that prompted the Court to dismiss the Government ’ s preliminary objection of non-exhaustion of domestic remedies (see paragraph 62 2 above), the Court must also find that the requirements of Article 13 of the Convention were not satisfied in the present case and that the applicant did not have available to him in Lithuania an “effective remedy” to ventilate his claims of a violation of Articles 3, 5 and 8 of the Convention. 677. Consequently, there has been a violation of Article 13, taken in conjunction with Article 3 of the Convention. VIII. APPLICATION OF ARTICLES 46 AND 41 OF THE CONVENTION A. Article 46 of the Convention 678. In addition to asking the Court to award him just satisfaction for non-pecuniary damage and legal costs under Article 41 of the Convention (see paragraph 686 below), the applicant sought the Court ’ s ruling indicating that the Lithuanian Government take certain specific individual measures in execution of the judgment. That request was formulated as follows: (a) Lithuania should carry out an effective, thorough and independent investigation to provide a full account of the applicant ’ s rendition into and out of Lithuania and his treatment while there. The investigation should include guarantees of independence and transparency, and victim participation, in line with the State ’ s obligations. It should pursue vigorously the investigation of past crimes, including by taking all possible measures to secure information and cooperation from the United States and conducting a rigorous forensic investigation. The investigation should lead to a full public account of Lithuanian involvement in the rendition programme. (b) Those persons who were believed, upon proper investigation, to be responsible for crimes committed against the applicant on Lithuanian territory should be subject to prosecution and appropriate punishment in accordance with the gravity of the crimes; that the State should clarify that there could be no legal impediments to accountability for the crimes in question under Lithuanian law. (c) The Lithuanian State should formally recognise the violations of the applicant ’ s rights and acknowledge its wrongdoing and responsibility for those violations, and its contribution to his current circumstances; the State should provide suitable guarantees of non-repetition to ensure that violations committed against the applicant would not be repeated in the future and that its cooperation would be consistent with its human rights obligations under the Convention. (d) Lithuania should secure, through diplomatic or other means, the cooperation and assistance of the United States Government in order to establish the full and precise details of the applicant ’ s treatment at the hands of the CIA, and it should make such representations and interventions, individually or collectively, as were necessary to bring an end to the on-going violations of his rights. 679. The Court considers it appropriate to deal with the applicant ’ s request under Article 46 of the Convention which, in so far as relevant, states: “1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties. 2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution. ... ” 680. The present case concerns the removal of an applicant from the territory of the respondent State by means of extraordinary rendition. The general principles deriving from the Court ’ s case-law under Article 46 as to when, in such a situation, the Court may be led to indicate to the State concerned the adoption of individual measures, including the taking of “all possible steps” to obtain the appropriate diplomatic assurances from the destination State, have been summarised in Al Nashiri v. Poland (cited above, §§ 586-588, with further references to the Court ’ s case-law, in particular to Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, § 209, ECHR 2012; Assanidze v. Georgia [GC], no. 71503/01, §§ 198 and 202, ECHR 2004-II; Savriddin Dzhurayev v. Russia, no. 71386/10, §§ 138, 252-254 and 256, ECHR 2013 (extracts); and Al-Saadoon and Mufdhi, cited above, § 170). 681. As regards possible representations to the US authorities by the respondent State, as requested by the applicant (see paragraph 67 8 (d) in fine above), the Court would recall its finding that, by enabling the transfer of the applicant to another CIA detention site, the Lithuanian authorities exposed him to a foreseeable risk of continued secret, incommunicado and otherwise arbitrary detention, liable, in his case, to continue for the rest of his life, in breach of Article 5 of the Convention (see paragraphs 65 5 -65 7 above; see also paragraphs 80 and 16 1 -16 4 above) as well as to further ill ‑ treatment and conditions of detention, in breach of Article 3 (see paragraphs 6 41 -64 3 above). The Court is mindful of the fact that the Lithuanian authorities already sought assistance and judicial cooperation from the US authorities in the context of the domestic criminal investigation (see paragraph 2 10 above). However, in the opinion of the Court, the treaty obligation of Lithuania under Article 46 of the Convention to take the necessary individual measures to redress as far as possible the violation found by the Court, require that the Lithuanian authorities attempt to make further representations to the US authorities with a view to removing or, at the very least seeking to limit, as far as possible, the effects of the Convention violations suffered by the applicant. 682. In the context of individual measures to be adopted by the respondent State, the applicant also contended that the Lithuanian authorities were obliged to carry out an effective, thorough and independent investigation to provide a full account of his rendition to and from Lithuania and of his treatment in Lithuania and to ensure the punishment of those responsible (see paragraph 678 (a) and (b) above). In this connection, it can be inferred from the Court ’ s case-law that the obligation of a Contracting State to conduct an effective investigation under Article 3, as under Article 2, of the Convention persists as long as such an investigation remains feasible but has not been carried out or has not met the Convention standards (see, for instance, Association “21 December 1989” and Others, cited above, § 202; Benzer and Others v. Turkey, no. 23502/06, §§ 218-219, 12 November 2013; see also, mutatis mutandis, Jeronovičs v. Latvia GC , no. 44898/10, §§ 107 and 118, 5 July 2016). An ongoing failure to provide the requisite investigation will be regarded as a continuing violation of that provision (see, mutatis mutandis, Cyprus v. Turkey, cited above, § 136; and Aslakhanova and Others v. Russia, cited above, §§ 214 and 230). 683. The Court considers that, having regard in particular to the nature of the procedural violation of Article 3 found in the present case, the obligation incumbent on Lithuania under Article 46 inevitably requires that all necessary steps to reactivate the still pending criminal investigation be taken without delay. Thereafter, in accordance with the applicable Convention principles (see paragraphs 60 7 -6 10 above, with references to the Court ’ s case-law), the criminal investigation should be brought to a close as soon as possible, once, in so far as this proves feasible, the circumstances and conditions under which the applicant was brought into Lithuania, treated in Lithuania and thereafter removed from Lithuania have been elucidated further, so as to enable the identification and, where appropriate, punishment of those responsible. The Court notes that on the basis of the elements in the case file, there appear to be no insurmountable practical obstacles to the hitherto lacking effective investigation being carried out in this manner (see, mutatis mutandis, Abuyeva and Others v. Russia, no. 27065/05, §§ 240- 241, 2 December 2010). It is not, however, for the Court to address to the respondent State detailed, prescriptive injunctions of the kind requested by the applicant. It falls to the Committee of Ministers, acting under Article 46 of the Convention, to address the issue of what – in practical terms – may be required of the respondent Government by way of compliance (see, mutatis mutandis, ibid., § 243, and Al Nashiri v. Poland, cited above, § 586, with further references to the Court ’ s case-law). 684. For the remainder, the Court is satisfied that the issues raised by the applicant in his requests for specific measures are adequately addressed by its findings of violations of the Convention. B. Article 41 of the Convention 685. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 1. Damage 686. The applicant asked the Court to award him 150,000 euros (EUR) for non ‑ pecuniary damage. He submitted that the Convention violations which he had sustained had caused significant harm to his mental and physical health. In his view, the factors relevant for an assessment of non ‑ pecuniary harm in the present case included the “extreme seriousness of the violations of the Convention”, their duration, context and lasting impact. 687. The Government replied that the sum claimed by the applicant in respect of the alleged non-pecuniary damage was excessive. 688. Article 41 empowers the Court to afford the injured party such satisfaction as appears to it to be appropriate. In the present case the Court has found serious violations of several Convention provisions by the respondent State. It has held that the responsibility of the respondent State is engaged in respect of the applicant ’ s inhuman treatment and secret detention on its territory. The respondent State has also failed to carry out an effective investigation as required under Articles 3 and 13 of the Convention. In addition, the Court has found a violation of the applicant ’ s rights under Article 8 (see paragraphs 6 22, 6 44, 65 8, 666, and 67 7 above). In view of the foregoing, the Court considers that the applicant has undeniably suffered non-pecuniary damage which cannot be made good by the mere finding of a violation. 689. Consequently, regard being had to the extreme seriousness of the violations of the Convention of which the applicant has been a victim, and ruling on an equitable basis, as required by Article 41 of the Convention (see El-Masri, cited above, § 270; Al Nashiri v. Poland, cited above, § 595; and Huseyn (Abu Zubaydah) v. Poland, cited above, § 567), the Court awards him EUR 100,000, plus any tax that may be chargeable on that amount. 2. Costs and expenses 690. The applicant also claimed EUR 30,000 for the costs and expenses incurred before the Court. 691. The Government were of the view that the sum claimed with respect to the costs of the proceedings was exorbitant and had not been in any way substantiated by the applicant ’ s lawyer. 692. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 30,000 for the proceedings before the Court. 3. Default interest 693. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | In this case the Court had no access to the applicant as he was still being held by the US authorities in very restrictive conditions so it had to establish the facts from various other sources. In particular, it gained key information from a US Senate Committee report on CIA torture which was released in December 2014. It also heard expert witness testimony. The Court held that in the applicant’s case there had been violations of Article 3 (prohibition of torture) of the Convention, because of the Government’s failure to effectively investigate his allegations and because of its complicity in the CIA’s actions that had led to ill-treatment, as well as violations of Article 5 (right to liberty and security), Article 8 (right to respect for private life), and Article 13 (right to an effective remedy) in conjunction with Article 3. The Court noted in particular that Lithuania had hosted a secret CIA prison between February 2005 and March 2006, that the applicant had been detained there, and that the domestic authorities had known the CIA would subject him to treatment contrary to the Convention. Lithuania had also permitted him to be moved to another CIA detention site in Afghanistan, exposing him to further ill-treatment. The Court therefore that the applicant had been within Lithuania’s jurisdiction and that the country had been responsible for the violations of his rights under the Convention. The Court further recommended that Lithuania conclude a full investigation of the applicant’s case as quickly as possible and, if necessary, punish any officials responsible. It lastly held that the country also had to make further representations to the United States to remove or limit the effects of the violations of his rights. |
Subsets and Splits